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Judgment
THIS revision is directed against the order of the State Commission Haryana Panchkula dated 18.10.2012 in First Appeal No. 807/2011 whereby the State Commission dismissed the appeal preferred by the petitioner Builder against the order of the District Forum Gurgaon.
BRIEFLY stated facts relevant for the disposal of the revision petition are that the petitioner launched a development scheme and invited applications for allotment of plots in the proposed residential township at Ajmer Road, Jaipur. The respondent/complainant applied for 1024 sq. yds. plot. His application was accepted vide allotment letter dated 08.02.2006. According to the complainant, he deposited a sum of Rs.32.00 lacs with the petitioner against the consideration amount of the plot. The petitioner/opposite party, however, failed to launch the project. Therefore, the complainant asked for refund of his deposit with interest. The opposite party offered to shift the booking of the complainant regarding allotment of flat/plot in their new project known as ''India Next Project''. The complainant refused to accept the offer and insisted for refund of money with interest. Consequently, the opposite party refunded a sum of Rs.36,80,000/ - to the complainant vide cheque no. 011636 dated 02.07.2008. The said amount included interest for nine months. According to the complainant, he deposited the amount on two occasions i.e. on 09.02.2006 and 13.04.2006. Therefore, he is entitled to refund of the amount for two years and five months as against nine months interest paid to him. Claiming this to be deficiency in service, the complainant preferred the consumer complainant.
THE petitioner/opposite party in their written statement took the plea that the complainant was unable to make payment of instalment within the stipulated time. Therefore, he himself approached the opposite party seeking cancellation of his allotment and refund of the amount paid by him against consideration. Thus, on the request of the complainant, a sum of Rs.36,80,000/ - inclusive interest on principal amount was paid to the respondent complainant despite of the fact that respondent / complainant was a defaulter and he had no right to claim compensation for his own wrong. Learned District Forum on perusal of record allowed the complaint and directed thus: "Hence the complainant is entitled to refund of his amount of Rs.32,00,000/ - from the OP with simple interest @ 20% p.a. from 08.08.2006 till 02.07.2008 i.e. Rs.32,00,000 (Principal) + Rs.1218360.00 (interest) = total Rs.44,18,630.00 Rs.36,80,000 ( refunded vide cheque dated 02.07.2008) = Rs.738630.00 with interest @ 9% p.a. from 3.7.2008 till realization. The complainant is entitled to compensation of Rs.20,000/ - and litigation expenses of Rs.5000/ -."
BEING aggrieved of the order of the District Forum, the petitioner approached the State Commission in appeal and the State Commission after going through the record concurred with the finding of the District Forum and dismissed the appeal.
MR . S.K.Sahni, counsel for the petitioner has contended that orders of the foras below are based upon the erroneous appreciation of facts. Learned counsel has contended that both the foras below have failed to appreciate that the respondent / complainant was a defaulter in payment and he himself sought refund of his deposit by opting out from the project launched by the petitioner. It is contended that pursuant to the request of the respondent/ complainant, he was delivered a cheque of Rs.36,80,000/ - drawn on Indian Bank dated 02.07.2008 which was inclusive of the money paid by him for consideration plus interest. It is contended that once the complainant had settled the matter by getting the refund, the relationship of the consumer and service provider came to an end and as such respondent could not have maintained the consumer complaint. In support of this contention, learned counsel for the petitioner has referred to the copy of letter dated 01.07.2008 addressed by the complainant to Pankaj Paul, Vice President Marketing of the petitioner opposite party. The relevant context of the letter is reproduced as under: "Ref : Your post dated cheque no 011636 A/C 0022 641080 -050 for Rs.36,80,000/ - on Indian Bank dated 2 -7 -2008. On realization of the above mentioned cheque, the original documents shall be exchanged as desired by you."
ADMITTEDLY , the respondent complainant had paid a sum of Rs.32,00,000/ - to the petitioner/opposite party against the consideration amount. On reading of the above letter, it is clear that against the deposit of Rs. 32,00,000/ -, the petitioner/opposite party has paid Rs.36,80,000/ - vide a cheque drawn on Indian Bank to the respondent and the respondent/complainant has promised that he would exchange the original documents regarding allotment on realization of amount of cheque. From this it appears that cheque in question was obtained by the petitioner in full and final settlement.
ON hearing dated 20.09.2013, the respondent was confronted with the aforesaid letter dated 01.07.2008. The respondent after seeing the letter admitted that it was written in his handwriting. He, however, stated that this letter is not the receipt and actually he issued the receipt regarding receipt of post dated cheque of Rs.36,80,000/ - under protest. In support of this contention, the complainant has drawn our attention to the photocopy of purported receipt for Rs.36,80,000/ - subject to encashment under protest. This receipt in our view, is of no avail to the complainant because as per the stand taken by the complainant on 20.09.2013 in the endorsement recorded on copy of the letter dated 01.07.2008, the respondent had signed a typed receipt produced by the opposite party on which he recorded his protest. The receipt relied upon by the complainant at page 100 of the file is a handwritten receipt. This contradiction clearly indicate that the respondent / complainant is not telling the truth and his version regarding having accepted the cheque under protest is not reliable. Otherwise also, had the complainant received the cheque of Rs.36,80,000/ - under protest, under the natural course of circumstances, he would have recorded his protest in the letter dated 01.07.2008 instead of writing that he would exchange the documents on realization of cheque. Thus, under the circumstances, we are the view that cheque of Rs.36,80,000/ - was received by the complainant in full and final settlement of his claim. Once the complainant has accepted the cheque in full and final and final settlement of his claim and realized the amount, he now cannot be permitted to reopen the matter by filing the consumer complaint. This important aspect of the case has been ignored by the foras below. Therefore, the impugned orders cannot be sustained.
IN view of the discussion above, we allow the revision petition, set aside the orders of the foras below and dismiss the complaint.