Dr. S.M. Kantikar, Presiding Member

1. The present First Appeal is from the impugned order dated 18.08.2017 of the State Consumer Disputes Redressal Forum, New Delhi (for short “the State Commission”) passed in C-667/15, whereby the complaint was disposed of as settled.

2. The crux of the case is that the complainant booked a residential unit in the project ‘SAVANA’ being launched by the OP, the basic sale price of which was Rs. 30,44,700.00/-. Buyer’s Agreement was executed between the parties on 17.11.2006. Possession was promised to be given within 36 months from the date of execution of the Agreement. Inspite of paying a substantial amount, the OP did not give possession within the stipulated time period. Being aggrieved by the act of the OP, the complainant filed a complaint in the State Commission.

3. The State Commission vide order dated 18.08.2017, disposed of the complaint as settled. The State Commission was of the view that a Settlement Deed dated 10.02.2016 existed and hence, interference was not warranted. The Order of the State Commission is reproduced as below:

Present: Sh. A.K.Singh, Counsel for the Complainant.

Sh. Sudhendra Tripathi, Counsel for the OP.

He has filed written arguments. Copy supplied. He has also filed copy of settlement deed dated 10.02.2016. He states that OP offered possession vide letter dated 05.12.2015 copy of which is at page-211 of bench of WS. The OP would deliver the possession within 30 days.

Counsel for complainant states that settlement was got signed by force. If that is so, the OP must have challenged the same by now. About one year and six months have passed.

In view of the above, the complaint is disposed of as settled.

File be consigned to Record Room.

4. Being aggrieved by the order of the State Commission, the complainant filed the present First Appeal.

5. We have heard the learned counsel for the appellant and perused the material on record.

6. There is delay of 15 days in filing the instant appeal. In the interest of justice, the short delay is condoned.

7. From the Buyer’ Agreement, it is evident that the complainant booked the residential unit in the colony “Savana”, which was to be developed by the OP for a basic sale price of RS. 30,44,700/-. The Buyer’s Agreement was executed on 17.11.2006. It was promised that the possession of the residential unit would be given within 36 months from the date of execution of the Agreement.

8. The OP issued the offer of possession / demand notice on 5.12.2015 with Annexures A and B. The Annexure A was a condition precedent for handing over possession of said residential unit and Annexure B was the schedule of balance payment. The complainant even made payment of balance charges and fulfilled all conditions outlined in the demand notice under Annexure A and B. The OP failed to hand over the possession of unit to the complainant within the stipulated timeline. Thereafter, the complainant made repeated attempts to get possession of the flat. However, during the face to face meeting with the OP at its office, he handed over a copy of the purported settlement deed for signing and made it as a condition precedent for getting possession. The complainant had no opportunity to go through the purported settlement deed and he was left with no option, but to get the possession only after signing the said settlement deed. The original copy of the signed settlement deed was retained by the OP and even its copy was not issued to the complainant till date.

9. In our view, the State Commission erred while dismissing CC No. 667/2015 on the basis of purported settlement agreement dated 10.02.2016 which was a one sided document. It was merely used by the OP as an instrument to ‘arm-twist’ the complainant and put him into ‘take-it-or-leave-it’ situation. Therefore, the purported settlement agreement is void one.

10. We further note that OP never attached the said settlement deed either with its evidence or during proceedings before the State Commission. However, it is transpired that on 18.08.2017, the last date of hearing, the OP presented a copy of settlement deed before the bench in the State Commission and sought dismissal of complaint. Same was recorded by the State Commission in its Order, without giving any opportunity to the complainant.

11. Considering the entirety of this case, it is a clear case of unilateral and high-handed approach of the builder co., who was in a dominant position and exercised ‘undue influence’ on the helpless consumer. We also view the act of OP as an “unfair trade practice as laid down under section 2(1)(r) of the Act 1986.

12. On the basis of the foregoing discussion, the First Appeal is allowed. The Order of the State Commission is set aside and the matter is remitted back to the State Commission for further adjudication.

13. The parties are directed to appear before the State Commission on 30.04.2020 for further proceedings.

Per Hon’ble Mr. Dinesh Singh, Member

14. In the interest of justice, to provide fair opportunity to the appellant / complainant, to decide the appeal on merit, the delay of 15 days in filing the appeal is condoned.

15. A perusal of the record shows that the appellant / complainant had filed a complaint against the opposite party / builder co. apropos a flat in a project of the builder co.

16. In adjudication before the forum of original jurisdiction, i.e. the State Commission, the forum passed the following Order:

18.08.2017

Item No. 22

C-667/15

Present: Sh. A.K.Singh, Counsel for the Complainant.

Sh. Sudhendra Tripathi, Counsel for the OP.

He has filed written arguments. Copy supplied. He has also filed copy of settlement deed dated 10.02.2016. He states that OP offered possession vide letter dated 05.12.2015 copy of which is at page-211 of bench of WS. The OP would deliver the possession within 30 days.

Counsel for complainant states that settlement was got signed by force. If that is so, the OP must have challenged the same by now. About one year and six months have passed.

In view of the above, the complaint is disposed of as settled.

File be consigned to Record Room.

17. A mere reading of the State Commission’s impugned Order shows that the counsel for the complainant submitted before the State Commission that a purported settlement deed produced before the State Commission by the builder co. “was got signed by force” from the complainant. Notwithstanding the said submission, the State Commission disposed of the complaint “as settled”.

18. The complainant has filed the instant appeal before this Commission, aggrieved by the disposal of his complaint as settled in the light of a purported settlement deed being produced by the builder co. before the State Commission and to which the complainant had explicitly objected and categorically submitted before the State Commission that the same was got signed by force.

19. The Act 1986 is for “better protection of the interests of consumers”, in recognizedly a fight amongst unequals.

A settlement, and moreso when it is placed before the forum of original jurisdiction, and moreso still when it is placed at the stage of filing of briefs of written arguments, i.e. at the stage of final hearing, cannot be so considered and the case so disposed of as settled when the complainant is explicitly and categorically submitting that the same was got signed by force and as such he was not agreeable to it.

In all eventualities, a settlement has to be voluntary, amicable and equitable, clean, without questions.

20. A forum should not and can not dispose of a case as settled when the counsel

for the complainant is submitting that the settlement deed was got signed by force, and, as such, there were questions, a bad air, re the settlement. 21. This Commission has no hesitation in setting aside the impugned Order dated 18.08.2017 of the State Commission and to request the State Commission to decide the complaint on merit, on facts and law. 22. The parties are directed to appear before the State Commission on 30.04.2020. The State Commission is requested to issue notice to the complainant, as also to provide him opportunity through notice if, for any reason, he is not present before the State Commission on the date fixed i.e. 30.04.2020. 23. The Registry is directed to send a copy each of this Order to the appellant / complainant, to the respondent / opposite party and to the State Commission, within three days of its pronouncement.