JUDGMENT PRONOUNCED ON:21.01.2021 COMPLAINT NO. 1378/2018 IN THE MATTER OF MR. ASHOK KUMAR VERMA & ANR. .COMPLAINANTS VERSUS PARSVNATH DEVELOPERS LTD. ....OPPOSITE PARTY CORAM: HONBLE DR. JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT) HONBLE SH. ANIL SRIVASTAVA, (MEMBER) Present: Complainant No.1 in person representing Complainant No. 2 as well. Mr. Rakesh Bhardwaj, Counsel for the OP. PER: HONBLE DR. JUSTICE SANGITA DHINGRA SEHGAL, PRESIDENT JUDGMENT [Via Video Conferencing]
1. The present complaint has been filed before this commission under Section 12 of the Consumer Protection Act, 1986 alleging deficiency of service by the opposite party, which was initially returned by the District Forum vide order dated 04.10.2018 for want of pecuniary jurisdiction. The complainants have prayed for the following reliefs:
a) Direct the opposite party to pay the penalty amount of Rs. 4,27,000/- with 18% interest per annum from the date of delaying the payment till its realization. CC 1378/2018 ASHOK KUMAR VERMA VS. PARSVNATH DEVELOPERS LTD. Page 2 of 6
b) Direct the opposite party to pay a sum of Rs. 10,000/- towards mental agony and harassment caused to the complainants on account of deficient services rendered by the opposite party.
c) Direct the opposite party to pay a sum of Rs. 1,000 towards legal expenses which the complainants has incurred.
2. Brief facts necessary for the adjudication of the present complaint are that the complainants booked a Flat at Parsvnath Preston, Sonepat, Haryana with the Opposite Party and a Flat Buyer Agreement was executed between the parties on 31.12.2007. The basic price of the Flat was fixed at Rs. 33,23,670/-, which was to be paid in installments. The complainants paid a sum of Rs. 5,00,000/- to the Opposite Party over the period of time.
3. As per Clause 10(a) of the Flat Buyer Agreement, the Opposite Party had to construct the flat within a period of 36 months from the date of start of foundation work of the particular tower in which the flat was located, however, the Opposite Party failed to construct the flat within the stipulated period. Being unsatisfied with the pace at which the construction in the project was going on, the complainants vide letter dated 01.07.2014 asked for refund of the amount paid by them to the Opposite Party.
4. Having received the letter from the complainants, the Opposite Party refunded the entire amount of Rs. 5,00,000/- along with interest @ 9% p.a. Being aggrieved by the acts of the Opposite Party, the complainants have now preferred the present complaint case contending that they should be compensated as per clause no. 10(C) of the Flat Buyers Agreement which reads as under: CC 1378/2018 ASHOK KUMAR VERMA VS. PARSVNATH DEVELOPERS LTD. Page 3 of 6 (c) In case of delay in construction of the Flat beyond the period as stipulated subject to force majeure and other circumstances as aforesaid under clause (a) above, the Developer shall pay to the Buyer Compensation @ Rs. 53.80 (Rupees Fifty Three and Paise Eighty only) per sq. meter or @ 5/- per sq. ft. of the Super area of the Flat per month for the period of delay. Likewise, if the Buyer fails to settle the final account, execute sale deed and take possession of the flat within 30 days of the final call notice by the Developer the Buyer shall be liable to pay the Developer charges @53.80 per sq. meter or Rs. 5/- per sq. ft. of the super area of the Flat per month on expire of 30 days notice.
5. The Opposite party raised objections as to the maintainability of the complaint case before this commission. The Opposite Party contended that the clause 10(C) of the Flat Buyers Agreement is not applicable to the present case as it is only when the buyer makes the payment diligently that he is entitled to damages as per 10(C) however, in the present case it was due to the default of the complainant that the booking was cancelled and the amount was refunded to the complainant. Counsel for the Opposite Party further contended that despite the default on the part of the complainants, the Opposite Party did not forfeit the earnest money and refunded the whole amount paid by the complainants along with an interest @ 9% p.a.
6. Pressing the aforesaid objection, the counsel appearing on behalf of the Opposite Party prayed that the complaint should be dismissed.
7. The complainants filed their Rejoinder rebutting the written statement filed by the Opposite Party. Both the parties filed their Evidence by way of Affidavit in order to prove their averments on record. CC 1378/2018 ASHOK KUMAR VERMA VS. PARSVNATH DEVELOPERS LTD. Page 4 of 6
8. We have heard the complainant who appeared in person and also for the complainant no. 2 as well as the counsel for the Opposite Party and perused the material on record. Undisputedly, the complainants were refunded the total amount of Rs. 5,00,000/- deposited by them with the Opposite Party along with an interest @ 9% p.a. However, now, the complainants have tried to give it a colour that the refund was accepted by them under protest and without any mutual agreement or understanding. Here we deem it appropriate to refer to Praveen Kumar Arora vs. The Estate Officer, Haryana Urban Development Authority and Ors. reported at III (2012) CPJ 456 (NC), wherein the Honble National Commission has held as under:
9. Once, petitioner has received the entire deposited amount unconditionally and has also got the cheque encased, under these circumstances petitioner ceased to be a 'consumer' as per Consumer Protection Act, 1986. The privity of contract or relationship of consumer and service provider between the parties if any, came to an end the moment petitioner accepted the refund unconditionally and also got the cheque encased. Under these circumstances, District Forum ought to have dismissed the consumer complaint of the petitioner.
10. Petitioner having got the refund amount of Rs. 2,63,199/- as far back as in the year 2004, is enjoying with that money and now he wants to have the plot in question for free. Petitioner cannot have the cake and eat it too. Hence, the present petition is most bogus and frivolous one as well as is merit less, which is required to be dismissed CC 1378/2018 ASHOK KUMAR VERMA VS. PARSVNATH DEVELOPERS LTD. Page 5 of 6 with punitive costs for wasting the time of this Commission.
9. According to the complainants, the amount was received under protest, however, they failed to bring forth any evidence to strengthen this contention and having encashed the Demand Draft received by them from the Opposite Party, they seize to be consumers as defined under Consumer Protection Act, 1986. In addition to the aforesaid, if the complainants were dissatisfied with the interest paid along with which the refund was given to them by the Opposite Party, they could have straight away denied the same and taken proper course of action, which they failed to do. Moreover, the letter which has been annexed by the complainants i.e. Ex. CW-1/2 clearly reflects that the complainant themselves have demanded that either the possession should be handed over to them or the refund of the amount paid by them should be made along with interest.
10. The complainants have received sufficient and reasonable compensation for the amount which was paid by them to the Opposite Party and they cannot use the law to make unjust enrichment by obtaining compensation under two different heads i.e. firstly by seeking interest on the amount paid and then by way of a specific clause in the Flat Buyers Agreement i.e. clause 10 (C). The payment of the amount is to compensate for the loss incurred by the complainants and not to allow the aggrieved person to make gain out of the default of the other party. Hence, the complainants having received an interest @ 9% p.a. are not entitled to any further compensation.
11. Therefore, the complaint filed by the complainants against the Opposite Party holds no merit in the eyes of law as the Complainants CC 1378/2018 ASHOK KUMAR VERMA VS. PARSVNATH DEVELOPERS LTD. Page 6 of 6 cannot have the cake and eat it too and the same is dismissed. Parties shall bear their own cost.
12. Applications pending, if any, stands disposed of in terms of the aforesaid judgment.
13. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
14. File be consigned to record room along with a copy of this Judgment. (DR. JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (ANIL SRIVASTAVA) MEMBER Pronounced On: 21.01.2021
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