The Appellants/Complainants have filed these appeals against order dated 28.5.2014 passed by State Commission, Delhi in Complaint Case No.317 of 2011 Amit Chawla V/s. Parsvnath Developers Ltd., Complaint Case No.315 of 2011 Aman Grover Vs. Parsvnath Developers Ltd. and Complaint Case No.316 of 2014 Sanjay Kumar Sharma Vs. Parsvnath Developers Ltd. Vide impugned order passed in F.A. No.1158 of 2014 (Complaint Case No.317 of 2011), the State Commission observed that judgement of Complaint Case No.317/2011 shall mutatis mutandis apply to all the complaint cases. The State Commission has dismissed all the three complaints filed by the appellants.
2. Since, facts of all three cases are similar and common question of law is involved, thus these appeals are being disposed of by this common order.
3. Case of Amit Chawla Vs. Parsvnath Developers Ltd., F.A. No.1158/2014 (Complaint Case No.317/2011) is taken as the lead case.
4. Appellant Amit Chawla filed a Consumer Complaint u/s 17 of the Consumer Protection Act 1986 (hereinafter called the Act) against Respondent -Parsvnath Developers Ltd. for payment of Rs. 24,49,276/- comprising Rs. 14,49,276/- as interest calculated @ 24% plus Rs. 10,000/- as compensation. Appellant has further claimed a sum of Rs. 5 Lac towards compensation on account of deficiency of service/negligence and cost as well.
5. Appellants case is that he booked three bedroom apartment in the upcoming project of respondent and paid a sum of Rs. 4,50,000/- as advance payment on 11.4.2006. As per advance registration form, one of the condition was that respondent will offer a residential apartment to buyers within a period of six months and advance amount will be adjusted against the booking amount payable by the buyer when residential apartment is allotted to buyer. In case, respondent failed to allot an apartment within the stipulated period of six months from the date of making the payment, respondent shall be liable to pay interest @ 9% p.a. After expiry of six months period, respondent did not issue any allotment letter. However, on 14.03.2007, respondent issued a provisional allotment letter of three bedroom flat No. T19-1102 in the project name Parsvnath Pleasant Dharuhera, Haryana to the appellant. The payment plan was also enclosed with the allotment letter. The respondent demanded Rs. 50,850.50/- after adjusting the advance payment (Rs.4,50,000/-) out of total demand of Rs. 5,00,850/- which is first instalment of 15% of the total cost of flat. The amount of Rs.50,850/- was paid through cheque No. 228277 dt. 31.05.2007 and receipt No. 50047406 dt. 04.04.2007 was issued. Thereafter second, third & fourth instalment as per demand of the respondent were paid totalling to Rs. 16,02,720/- till 01.11.2008.
6. After making aforesaid payments, appellant visited the construction site several times and tried to know the progress of the construction and was surprised to see that there was no progress in the project. The appellant further received proposal letter dt. 06.12.2008 offering a special concession of 10% rebate on advance payment. It was shocking as the construction on the site has totally stopped. No assurance was given by the respondent that project was going to be completed soon. The appellant therefore, decided to take back his money and tried hard to meet the respondent but its officials refused to meet or give any satisfactory reply. One Mr. Sunit Sachar,
V.P.-Marketing, met the appellant and other buyers and told about the companys inability to complete the project in near future. Appellant requested for refund of the amount deposited with interest, but respondent refused. Later on, Sh. Sunit Sachchar offered settlement proposal to the appellant and told that the company was willing to pay actual amount with a condition that the appellant will surrender all his rights, claim and interest. The appellant was clearly told that if he does not accept the settlement proposal, he will get nothing and will return empty handed.
7. It is further stated that respondent sent letter dt. 05.05.2011 in this regard offering to pay principal amount without interest on surrender of all the rights and claim by the appellant. The appellant being under distress and under fear of loosing his hard earned money agreed to letter dt. 05.05.2011. He surrendered all his original documents. The respondent obtained appellants signature as per their convenience and paid back principal amount of Rs. 16,02,720/- through cheque No. 005697 dt. 0707.2011.
8. Thereafter, appellant sent a legal notice dt. 27.07.2011 to the respondent requesting the payment of interest of Rs. 16,02,720/- @ 24% p.a. Notice was received by the respondent but no reply was sent. The appellant thus suffered a lot of harassment, mental agony and pain at the hands of respondent, who was guilty of deficiency of service and indulgence to unfair-trade-practice. The appellant therefore claimed interest of Rs. 14,49,276/- calculated @ 24% p.a. till receiving principal amount of Rs. 16,02,720/- from the respondent and a compensation of Rs. 10 Lac totalling to Rs. 24,49,276/-.
9. The respondent filed its written statement and maintained that the complaint was baseless and flagrant abuse of process of law, besides being frivolous and vexatious. It was further maintained that appellant was barred by principles of estoppel also. The appellant received principal amount of Rs.16,02,720/- towards full and final settlement, vide receipt dt. 11.07.2011. The complaint is barred as no cause of action was available to the appellant. The respondent never violated or breached any terms and conditions of the flat buyer agreement. Respondent was neither guilty of any deficiency of service nor indulged in any unfair-trade-practice. It was further stated that appellant was no longer a customer/consumer with the respondent, as amount deposited by the appellant has already been refunded to him.
10. The State Commission dismissed all the complaints, vide its impugned order.
11. Being aggrieved, the appellants have filed these appeals.
12. Alongwith all these appeals, separate applications for condonation of delay have also been filed.
13. We have heard ld. counsel for the appellants and gone through the record.
14. As far as applications for condonation of delay are concerned, no period whatsoever has been mentioned by the appellants in their respective applications. Be that as it may, as per office note there is delay of 120 days in each of these appeals.
15. The main ground on which condonation of delay has been sought read as under; That the delay in fling the present appeal has been caused because collecting the relevant documents and thereafter due to personal difficulty of advocate not able to file the appeal in time.
16. As noted above, the impugned order was passed on 28.5.2014. As per certified copy of the impugned order placed on record, the free copy was issued on 2.6.2014 whereas, these appeals have been filed only on 30.10.2014.
17. In the ground seeking condonation of delay as reproduced above, appellants have nowhere stated as to what were the relevant documents which were to be collected and what was the personal difficulty of the Advocate who could not file the appeals in time. No detail of any documents nor the name of that Advocate has been mentioned. The ground on which condonation of delay has been sought is absolutely vague and does not lead us anywhere.
18. It is well settled that sufficient cause for condoning the delay in each case is a question of fact.
19. In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361 , it has been observed; It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.
20. In it has been observed: , R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108 We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.
21. Honble Supreme Court after exhaustively considering the case law on the aspect of condonation of delay observed in Oriental Aroma Chemical Industries Ltd. Vs. Gujarat as under; Industrial Development Corporation reported in (2010) 5 SCC 459 We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time. The expression "sufficient cause" employed in Section 5 of the Indian Limitation Act, 1963 and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate - Collector, Land Acquisition, Anantnag v. Mst. Katiji (1987)2 SCC 107, N. Balakrishnan v. M. Krishnamurthy. (1998) 7 SCC 123 and 10 Vedabai v. Shantaram Baburao Patil (2001) 9 .SCC 106
22. Apex Court in Anshul Aggarwal Vs. New Okhla Industrial Development Authority, IV has observed ;(2011) CPJ 63 (SC) It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the consumer foras.
23. Thus, on the face of it appeals filed before this Commission are hopelessly barred by limitation. Moreover, no sufficient cause for condonation of delay is made out. Accordingly, present appeals are liable to be dismissed on this ground alone.
24. On merits, it has been contended by ld. counsel for the appellants that respondent after taking the amount from them has not raised any construction till date and has used the amount of the appellants for its own benefit. It is further submitted, that appellants have sent various mails and written letters to the respondent for refund of the principal amount alongwith interest, but respondent who is in dominant position in the contract, forced the appellants to take the principal amount after five years of contract and as such appellants signed the full and final settlement. The respondent has also charged 24% interest from the appellants for delay in payment of the instalments for some days but did not pay a single rupee as an interest for the amount that had been taken from the appellants on false promises. Therefore, impugned order passed by the State Commission is liable to be set aside. In support, ld. counsel has relied upon following judgments; i, United India Insurance Company Ld. Vs. Ajmer Singh Cotton & General Mills and others, [(1999) 6 Supreme Court Cases 400] and ii) Singureddy Ramana Murthy Vs. National Insurance Company Ltd. and others, [ I (2003) CPJ 37 (NC) ]
25. The State Commission in its impugned order observed; In the present case, it has not been disputed by the complainant principal amount of Rs. 16,02,720/- was refunded/paid by the OP through cheque No. 005696 dt. 07.07.2011 and receipt of amount received was executed on 11.07.2011 towards full and final settlement of his account. One Photocopy of the receipt annexure OP-1, Colly-Pg-19 is available on record. It has been duly executed by the complainant Sh. Amit Chawla. It bears his signature his name address and telephone number. It is mentioned in the receipt that complainant has received the amount of Rs. 16,02,720/-on his own volition and on receipt of the same, he has no rights/claims against the company. And his rights, in the said booking stands surrendered/extinguished. In view of these facts and circumstances and evidence on record we are not convinced that the complainant has accepted the refund amount under any kind of undue influence or coercion. He ceases to be a consumer, the moment he received the principle amount through cheque and encashed the same. He is therefore estopped from filing the present complaint, which is not maintainable and is liable to be dismissed.
26. It is an admitted fact, that there has been correspondence between the parties with regard to the refund of the amount deposited by the appellants. In this regard, it would be pertinent to refer to letter dated 5.5.2011, addressed by the respondent to the appellant Shri Aman Grover, which read as under; Dear Sir, This has reference to your letter dated 28 April, 2011 and subsequent meeting for refundth against the amount deposited by you in Parsvnath Pleasant, Dharuhera. As discussed it is agreed that we shall be refunding the same as a special case without any deduction and without payment of any interest within two months of submitting of the original documents issued to you by us towards the booking of the Unit as per the list provided by us. Thanking you, Yours faithfully, For Parsvnath Developers Ltd. Sunil Sachar Sr/. VP/Mktg. & Comml.)
27. In this letter, the respondent has categorically stated that it shall be refunding the same as a special case without any deduction and without payment of any interest.
28. The appellants, only after receipt of the above letter of the respondent signed the receipt with regard to refund of the amount on 11.7.2011. There is nothing on record to show, that respondent vide its letter dated 5.5.2011, had put any pressure or coercion upon the appellants, to take the refund amount without interest. After getting letter dated 5.5.2011 from the respondent, the appellants had more than two months to think over the proposal of the respondent. Thus, the appellant without any pre-condition executed and signed receipt dated 11.7.2011.
29. Law on this subject has been clearly laid down by Honble Supreme Court of India in Ajmer wherein it was held that, discharge voucher though signed Singh Cotton & General Mills (supra), as full and final may not be treated as final if the consumer can satisfy the Court that it was obtained through undue influence, fraud or misrepresentation. Honble Court has observed: The mere execution of the discharge voucher would not always deprive the consumer from preferring claim with respect to the deficiency in service or consequential benefits arising out of the amount paid in default of the service rendered. Despite execution of the discharge voucher, the consumer may be in a position to satisfy the Tribunal or the Commission under the Act that such discharge voucher or receipt had been obtained from him under the circumstances which can be termed as fraudulent or exercise of undue influence or by misrepresentation or the like. If in a given case the consumer satisfies the authority under the Act that the discharge voucher was obtained by fraud, misrepresentation, undue influence or the like, coercive bargaining compelled by circumstances, the authority before whom the complaint is made would be justified in granting appropriate relief However (sic so), where such discharge voucher is proved. to have been obtained under any of the suspicious circumstances noted hereinabove, the Tribunal or the commission would be justified in granting the appropriate relief under the circumstances of each case. There mere execution of discharge voucher and acceptance of the insurance would not estop the insured from making further claim from the insurer but only under the circumstances as noticed earlier The Consumer Disputes Redressal. Forums and Commissions constituted under the Act shall also have the power to fasten liability against the insurance companies notwithstanding the issuance of the discharge voucher. Such a claim cannot be termed to be fastening the liability against the insurance companies over and above the liabilities payable under the contract of insurance envisaged in the policy of insurance. The claim preferred regarding the deficiency of service shall be deemed to be based upon the insurance policy, being covered by the provisions of Section 14 of the Act. In the instant cases the discharge vouchers were admittedly executed voluntarily and the complainants had not alleged their execution under fraud, undue influence, misrepresentation or the like. In the absence of pleadings and evidence the State Commission was justified in dismissing their complaints .
30. In Bhagwati Prasad Pawan Kumar Vs Union of India (2006) 5 Supreme Court Cases 311, Apex Court has observed .;
18. Section 8 of the Contract Act provides for acceptance by performing . conditions of a proposal In the instant case, the Railway made an offer to the appellant laying down the conditions that if the offer was not acceptable the cheque should be returned forthwith, failing which it would be deemed that the appellant accepted the offer in full and final satisfaction of its claim. This was further clarified by providing that the retention of the cheque and/or encashment thereof will automatically amount to satisfaction in full and final settlement of the claim. Thus, if the appellant accepted the cheques and encashed them without anything more, it would amount to an acceptance of the offer made in the letters of the Railways dated 74.1993. The offer prescribed the mode of acceptance, and by conduct the appellant must be held to have accepted the offer and, therefore, could not make a claim later. However, if the appellant had not encashed the cheques and protested to the Railways calling upon them to pay the balance amount, and expressed its inability to accept the cheques remitted to it, the controversy would have acquired a differed complexion. In that event, in view of the express non-acceptance of the offer, the appellant could not be presumed to have accepted the offer. What, however is significant is that the protest and cheques are encashed without protest, then it must be held that the offer stood unequivocally accepted. An offeree cannot be permitted to change his mind after the unequivocal acceptance of the offer.
19. It is well settled that an offer may be accepted by conduct. But conduct would only amount to acceptance if it is clear that the offeree did the act with the intention (actual or apparent) of accepting the offer. The decisions which we have noticed above also proceed on this principle. Each case must rest on its own facts. The courts must examine the evidence to find out whether in the facts and circumstances of the case the conduct of the offeree was such as amounted to an unequivocal acceptance of the offer made. If the fact of the case disclose that there was no reservation in signifying acceptance by conduct, it must follow that the offer has been accepted by the conduct. On the other hand, if the evidence discloses that the offeree had reservation in accepting the offer, his conduct may not amount to acceptance of the offer in terms of Section 8 of the Contract Act .
31. In the present appeals, there is nothing on record to show that appellants were compelled by the respondent at any stage to settle the claim at lesser amount than the claim made by them. There is also not an iota of evidence on record to show that any official of the respondent compelled the appellants to settle the claim at lesser amount. Now appellants want to repudiate the receipt duly signed by them. This clearly shows malafide intention on the part of the appellants in filing the present appeals. It is well settled that the provisions of the Consumer Protection Act, 1986 are not meant for enrichment of the consumer. Once appellants have received the amount unconditionally, under these circumstances appellants cease to be Consumer as per the Act. The privity of contract or relationship of consumer and service provider between the parties if any, came to an end, the moment appellants accepted the amount unconditionally.
32. Thus, there is no merit in the present appeals and same are accordingly dismissed with cost of Rs.5,000/- (Rupees Five Thousand only) in each case.
33. Appellants are directed to deposit the cost by way of demand draft in the name of Consumer Legal Aid Account of this Commission, within six weeks from today.
34. In case, appellants fail to deposit the aforesaid cost within the prescribed period, then they shall also be liable to pay interest @ 9% p.a., till realization.
35. List on 9 January, 2015 for compliance.th ......................J
V.B. GUPTA PRESIDING MEMBER ...................... SURESH CHANDRA MEMBER
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