Delhi

StateCommission

CC/74/2015

DR. DAYANAND PARASHAR & ANR. - Complainant(s)

Versus

M/S BPTP LTD. & ANR. - Opp.Party(s)

02 Mar 2017

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

 

Date of Decision:02.03.2017

 

Complaint Case No.74/2015

 

In the matter of:

 

1. Shri Dayanand Parashar

S/o Late Shri Kishan Lal Parashar,

 

2. Mrs. Santosh Parashar,

W/o Dr. Dayanand Parashar

 

Both R/o 20/7, First Floor,

Punjabi Bagh Extension,

New Delhi-110026.

 

                        ....Complainants

 

Versus

 

 

1. M/s. BPTP Ltd.,

Having registered office at:

M-11, Middle Circle,

Connaught Place

New Delhi-110001

 

2. Mr. Kabul Chawla

Managing Director,

BPTP Ltd.,

M-11, Middle Circle

Connaught Place

New Delhi-110 001.

 

3. Mr. Sudhanshu Tripathi

Whole time Director

BPTP Ltd.

M-11, Middle Circle

Connaught Place

New Delhi-110 001.

 

4. Mr. Manmohan Singh

Authorized Representative/Signatory,

BPTP Ltd.

M-11, Middle Circle

Connaught Place

New Delhi-110 001.

 

 

 

….….....Opposite Parties

CORAM

 

Justice Veena Birbal, President.

Ms. Salma Noor, Member.

 

 

1. Whether reporters of local newspaper be allowed to see the judgment?

 

2.  To be referred to the reporter or

 

 Justice Veena Birbal, President

 

 

 

1. A complaint under Section 12 of the Consumer Protection Act, 1986 (in short “the Act”) is filed by the complainants stating therein that they had booked a residential plot in their joint names in the project ‘Parklands’ in Faridabad of OP-1 company measuring 250 sq. yds. vide Advance Registration dated 01.10.2005.  They had paid a sum of Rs.4,65,625/- against booking charges by way of cheque drawn on Corporation Bank, Paschim Vihar, New Delhi. It is stated that on 18.9.07, a Plot Buyers’ Agreement was signed between the complainants and the OP-1 whereby OP-1 made allotment of plot No. F-12/13 measuring 250 sq. yds. in the aforesaid project @7,450/- per sq. yds. amounting to Rs.18,62,500/- basic price and other payments like EDC, etc. Thereafter, from time to time the complainants made payments as demanded by the OP-1 and in all complainants had paid payment of Rs.21,36,625/- on account of allotment of the said plot towards basic price and other payments. It is alleged that more than 90% of the total cost of the plot was given to OP-1. Despite having paid the aforesaid payment, the possession of the plot was not given to them even after the lapse of nine years from the date of booking. The complainants sent reminders to the OP-1.  It is alleged that number of times, OP-1 had agreed to return the principle amount along with interest and for the said purpose a compromise deed dated 6.3.13 was entered between the complainants and OP-1 acting through OP-4 wherein OP-1 had agreed to pay total sum of Rs.47,75000/- to the complainants towards full and final payment i.e. principle amount plus interest till 6.3.13. The settlement amount was payable as under:

          1^st Instalment of Rs.5,00,000/- on 06.03.2013

          2^nd Instalment of Rs.20,00,000/- on 20.04.2013

          3^rd Installment of Rs.22,75,000/- on 6.6.13

2.       On the date of signing of aforesaid compromise deed, first instalment of Rs.5,00,000/- was given. All the original documents were taken from the complainants on the said date. It is alleged that there was delay in making the payment of second instalment of Rs.20,00,000/-. However, after repeated follow up the second instalment of Rs.20,00,000/- was given on 2.9.13 i.e. after a delay of 135 days. The third and final instalment of Rs.22.75,000/- in terms of settlement deed dated 6.3.13 was not given to the complainants. The complainants requested many times by sending e-mails to OP-1 for the payment of third instalment despite that it was not given. It is alleged that on 19.11.14, the complainants received an e-mail from the representatives of OP-1 wherein more time was requested.  Legal notice dated 24.11.14 was sent to the OP-1 despite that the third instalment was not given nor reply to the legal notice was given.

3.       It is alleged that since the complainants had paid 90% of the total cost of the plot and despite that the possession was not delivered to them.  It is alleged that thereafter, the OP forced the complainants, due to their negligent and dishonest dealing and inability to deliver the plot, to sign the compromise deed. It is also alleged that the compromise was done with a malafide intention as the price of the plot had increased. It is alleged that even there is a breach of terms of the compromise deed as full payment has not been given as such the OPs are liable to return the principle amount along with interest @18% to the complainants from the date of payment till repayment after adjustment of amount received by the complainants. The complainants have made prayer for award of Rs.66,67,072/- and for grant of pendent-elite and future interest @18% p.a. in their favour and against the Opposite Parties.

4.       OPs have filed written statement.  Along with written statement, an application is also moved for dismissal of the complaint by alleging that the complaint has become in fructuous as the terms of compromise deed dated 6.3.13 between the parties have been complied with. It is also stated that in terms of para 3 of the aforesaid compromise deed, the complainants cannot file any complaint or proceeding before any tribunal or authority in respect of the matter of the compromise deed.

5.       The complainants have filed reply to the aforesaid application and have admitted having received the full amount as per compromise deed dated 6.3.13. However, it is stated that the second instalment of Rs.20,00,000/- was paid after a delay of 135 days and third and final instalment of Rs.22.75,000/- was payable on 6.3.13. But the same was given in October, 2015, after OPs had received the notice of the present complaint case.  It is stated that representative of OP-1 had met the complainant No.1 and handed over post dated cheques dated 10.9.15 to 10.1.16 towards outstanding amount. It is stated that the said payment was received under protest. It is stated that the said payment was made after much harassment to the complainants. It is stated that the application is reliable to be dismissed.

6.       We have heard the parties on aforesaid application as well as perused the record.

7.       It is admitted position that the complainants had booked a plot of 250 sq. yds. with OPs at ‘Parklands’ in Faridabad. It is also admitted position that an amount of Rs.21,36,625/- i.e. more than 90% of the total cost of the plot was paid by the complainants to OP-1. It is also not denied by the OP-1 that the possession of the plot was not given to the complainants. It is also admitted position that a compromise deed 6.3.13 was entered between the parties wherein the OP-1 has agreed to pay a total sum of Rs.47,75,000/- to the complainants in full and final settlement. The terms of compromise deed dated 6.3.13 are reproduced as under:

“1)    The parties to this deed out of their own free will have amicably settled all their claims, disputes and differences in respect of the booking/unit without any pressure, force or coercion.

2. That the First Party agrees to receive an all inclusive sum of Rs.47,75,000/- (Rupees Forty Seven Lacs Seventy Five Thousand only) as Compensation towards full and final settlement of all their claims and grievances in respect of the said booking of unit and the Second Party has agreed to pay the same in the manner as herein below.

 

The First Party acknowledges the receipt of the Compensation/settlement Amount of Rs.5,00,000/- (Rupees Five Lacs only) out of the Total compensation/Settlement Amount of Rs.47,75,000/- (Rupees Forty Seven Lacs Seventy Five Thousand only) from the Second Party vide Cheque bearing no. 702323 dated 06.03.2013 in favour of Mr. Dayanand parashar for a sum of Rs.2,50,000/- (Rupees Two lacs Fifty Thousand only) drawn on PNB, New Delhi. The First Party further agrees to receive the balance Compensation/Settlement Amount of Rs.42,75,000/- (Rupees Forty Two Lacs Seventy Five Thousand Only) in the following manner:

1. Rs.20,00,000/- on 20/4.2013; and
2. RS.22,75,000/- on 06.06.2013;

 

The Parties further agree that in case the Second Party delays in making payment of aforesaid instalments by the respective due date then the Second Party shall be liable to pay and the First Party shall be entitled to receive the instalment amount plus interest @9% p.a. from the due date till the date of payment.

3. The First Party acknowledges that the settlement as envisaged hereinabove constitutes final and conclusive settlement of all their claims and grievances against the Second Party and/or any its chairman and directors, employees, authorized representatives, etc.
4. The First Party, for and in lieu of the compensation and other terms agreed herein, undertakes to execute and furnish any letters, affidavits, statements, personal attendance etc., required for withdrawal of notices/complaints/proceedings, if any against the Second Party.

 

3. The First Party, for and in  lieu of the compensation and terms agreed herein, shall not file any complaint/proceeding before any tribunal or authority and shall not pursue any legal remedies or claim any damages against Second Party in respect of the subject matter of this Compromise.
4. That the First Party acknowledges the adequacy and fairness of the Compensation/ Settlement agreed herein and upon execution hereof, the First Party shall be left with no claims whatsoever against the Second Party or its Chairman/Managing Director or its employees, officers, brokers, representatives or intermediaries. The Parties have no pending claims of any nature whatsoever against each other and undertake not to make any claim(s) relating to the subject matter hereof, against each other in the future, on any ground.
5. That the First Party is left with no right, interest or claim of any nature whatsoever in the subject booking/unit and the Second Party is free to deal with the same in any manner it deems fit. The First Party further represents, warrants and confirms that it has not created any third party rights or interests in the said booking/unit.
6. That the Parties are entering into the present compromise for good and valuable consideration, out of their own free will not volition and the present deed is not being executed under any force, fraud, coercion or undue influence from any person whosoever.
7. That the parties shall keep the terms of the present Compromise Deed confidential and shall not without the prior written consent of the other Party, disclose or divulge any information to a third party except in accordance with law.”

 

8.       It is also admitted position that on the day of signing the compromise deed, the first instalment of Rs.5,00,000/- was received by the complainants. The second instalment was received by the complainants on 2.9.13 after a delay of 135 days. It is admitted by the OP-1 that the third instalment was not paid till the filing of the complainant. It is also admitted position that the third instalment of Rs.22,75,000/- has been paid after the filing of the present complaint. As per clause 3(renumbered) of the compromise deed which is reproduced above, the complainants have agreed that they shall not file any complaint/proceeding before any tribunal or authority and shall not pursue any legal remedies or claim any damages against OP-1 in respect of the subject matter of the compromise deed. Perusal of the compromise deed clause 2 shows in case of delay in making payment by OP-1, the complainants shall be entitled to receive the instalment amount plus interest @ 9% p.a. from the due date till the date of payment. In the present case, the main allegation in the complaint is that there is a delay in the payment of third instalment as such there is a breach of terms & conditions by the OP. Reading clause -2 of the Compromise Deed reproduced above, in case of delay, the complainants are only entitled to get the interest @ 9% p.a. from due date till the date of payment for the delayed project. Admittedly the complainants have received the third instalment as well as the interest for the delay period @9% from the due date till date of payment. The complainants have already received the amount as agreed between the parties and have also received 9% interest for the delay period before filing of the written statement.

9.       In these circumstances, the complainants cannot allege breach of compromise deed as is alleged by them. There are allegations that the OP-1 forced the complainants due to the negligent and dishonest dealing   to seek refund of the money paid by them and to sign compromise deed dated 6.3.13.  It is alleged that the aforesaid modus operandi was used as the price of plots had increased over substantial period of times.  The allegations made are vague.  The compromise deed is dated 6.3.13 whereas the complaint is filed on 30.1.15.  There is substantial gap between the two.  The complainant No.1 is an educated person.  The compromise deed has been entered into after understanding its contents.  No protest letter is sent by complainants.  The compromise deed is signed with open eyes. There is nothing on record to show that after entering into said agreement, complainants made any complaint in this regard. Complainants have filed the present complaint as the third instalment was not received by them in time. Reading the terms of compromise deed, the complainants cannot wriggle out   from the settlement and demand 18% of interest on the principle amount paid by them. They have entered into settlement of their own choice. They have agreed to the adequacy and fairness of compensation/settlement. The complainants have entered into settlement of their own will. After receiving the entire amount and encashing all the cheques and also having received the delay period interest, the complainants cannot maintain the present complaint. Accordingly the present complaint is dismissed.

10.     Copy of this judgment be given to the parties free of costs as per rules.

          File be consigned to Record Room.

 

 

 

(Justice Veena Birbal)

​President

 

 

(Salma Noor)

Member