Non-compliance with contractual obligations regarding refunds and unjustified deductions constitutes deficiency in service.

1. This Appeal has been filed by the Appellant / Opposite Party against Respondents / Legal Heirs of the original Complainant, challenging the impugned Order dated 5.5.2017 passed by the Ld. State Commission, Delhi, in Complaint Case bearing No. 406 of 2011. Vide such Order, the State Commission had allowed the Complaint.

2. The brief facts of the case are that relying upon the assurance of the Opposite Party that the possession would be handed over by March, 2011, the Complainant had booked a Flat in a new Group Housing Project launched by the Opposite Party, situated at Sector - 76, Faridabad in 2008. Subsequently, the Complainant was allotted a Flat bearing No. T - 7/101, Park Floors, BPTP after payment of Rs. 5,00,000 on 15.12.2008. It was averred that time was the essence of the contract. The Complainant further claimed to have paid Rs.16,04,533 by April, 2009. It was the case of the Complainant that on his visit to the construction site in June, 2010, it was found that he was allotted the Flat in a building which was not supposed to be constructed. Therefore, the Complainant claimed cheating and fraud by the Opposite Party. Consequently, he requested for refund and Email dated 1.3.2011, the Opposite Party promised that the entire money would be refunded along with 9% interest and also admitted that construction was not yet initiated. Thereafter, the Opposite Party asked the Complainant to fill a pre - drafted form which stated that the Complainant was voluntarily withdrawing his money and further asked him to submit all the original documents which was duly done by the Complainant on the assurance that these were just formalities.

3. It was further the case of the Complainant that he had received merely Rs.15,31,790 in the last week of May, 2011 as refund by the Opposite Party and contended that the Opposite Party had failed to return the full amount along with interest @ 9%. The Opposite Party failed to even assign a reason for deducting Rs.72, 743. Therefore, the Complainant was constrained to send a Notice dated 7.7.2011 for getting the dues which were denied by the Opposite Partyletter dated 30.8.2011. Therefore, the Complaint was filed before the Ld. State Commission being aggrieved by the acts of the Opposite Parties in failing to refund the dues alleging deficiency in services, seeking refund of Rs.72,743 along with interest @ 18% till realisation, interest @ 18% on deposited amounts till the date of payment, Rs.10,60,500 for loss due to fake allotment, and appreciation of prices, Rs. 20,00,000 for mental harassment and Rs. 25,000 as legal expenses.

4. The Opposite Party appeared before the Ld. State Commission and resisted the Complaint and denied all the allegations thereby denying deficiency in service on its part. It was contended that the Complainant is not a Consumer because he has already surrendered the allotment of unit No. T7-101 vide surrender application dated 20.4.2011 wherein he had agreed to accept the refund of the deposited amount after deducting all the charges / interest as per the rules of the Company, as full and final amount payable to him and further encashed the cheque issued for refund of Rs.15,31,790 unconditionally and without any protest. It was contended that the said case is covered by the decision of this Commission wherein it was held that the privity of Contract or relationship of consumer and service provider between the parties came to an end the moment Petitioner accepted the refund unconditionally and also got the cheque encashed. It was submitted that Rs.72,743 were deducted on account of brokerage. It was further averred that the Ld. State Commission lacked territorial and pec