Haryana

StateCommission

CC/247/2016

VIDYUT ARORA - Complainant(s)

Versus

GODREJ PROJECTS DEVELOPEMENT PVT.LTD. - Opp.Party(s)

KAMAL MEHTA

01 Aug 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA.

                                         

                                                 Complaint No.             247 of 2016

                                                 Date of the Institution: 29.08.2016

                                                 Date of Decision:        01.08.2017

 

 

Vidyut Arora son of late Sh. R.S. Arora, resident of S-211, 2^nd Floor, Greater Kailash One, New Delhi-110048.

…..Complainant

 

VERSUS

 

Godrej Properties Limited, Unit No.215, 2^nd Floor, Time Tower, Mehrauli, Gurgaon Road, Gurgaon -122002.

Also At

Godrej Projects Development Private Limited through its Managing Director, Godrej Bhawan, 4^th Floor, 4A, Home Street, Fort, Mumbai-400001.

Also At

Godrej Premium Builders Private Limited, Team Customer Centricity, 3^rd Floor, UM House, Plot No.35, Sector 44, Gurgaon-122002, Haryana.

….. Opposite Party

 

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Mr. Balbir Singh, Judicial Member.

                             Ms. Urvashi Agnihotri, Member.

                  

Present:-             Sh. Kamal Mehta, Advocate for the complainant

                             Mr. Kunal Dawar, Advocate for the opposite party

 

                                                O R D E R

 

NAWAB SINGH J, (ORAL)

 

          Vidyut Arora-complainant has filed the instant complaint under Section 17 of the Consumer Protection Act, 1986 with the averments that on September 10^th, 2012 he booked an apartment with Godrej Premium Builders Private Limited-opposite party (for short ‘Builder’). The price of the apartment was Rs.67,25,700/-. He was allotted apartment No.G0107, Tower-G, 1^st Floor, Godrej Summit, Sector 104, Gurgaon. Apartment Buyers Agreement dated April 22^nd, 2013 (Exhibit C-1) was executed between the parties.  In all, the complainant paid Rs.20,80,057.83, to the builder vide statement of account (Exhibit C-2). Vide email dated September 16^th, 2014 (Exhibit C-3), the complainant informed the builder regarding change of his address, that is, S211, 2^nd Floor, G.K.1, New Delhi, which was duly acknowledged by the builder on the same date. The complainant opted for the construction linked plan. The complainant did not receive any letter or notice from the builder on the changed address. The builder sent termination letter on January 13^th, 2016 to the complainant on S211, 2^nd Floor, G.K.1, New Delhi. Thereafter, the complainant sent emails dated January 22^nd, 2016, January 19^th, 2016, January 30^th, 2016 and February 18^th, 2016 to the Builder regarding restoration of his application for allotment of the said apartment. Thereafter, the complainant deposited Rs.52,05,875/- through cheque dated March 28^th, 2016 on the asking of the builder.  The Builder returned the said cheque on the pretext that the application of complainant was rejected by the management.  The complainant requested the builder to refund his deposited amount of Rs.20,80,057.83 but to no avail. 

2.      The builder, in its written version, took preliminary objections that the complaint is not maintainable before this Commission because the complainant is not “Consumer” within the meaning of Section 2(1)(d) of the Consumer Protection Act, as the apartment has been booked for investment purpose;  vide Clause 19.1 of the Apartment Buyer’s Agreement, dated April 22^nd, 2013, it was resolved between the parties that all or any of the disputes that may arise with respect to the terms and conditions of the agreement, including the interpretation and validity of the provisions hereof and the respective rights and obligations of the parties shall be first settled through mutual discussion and amicable settlement, failing which the same shall be settled through arbitration. On merits, it is pleaded all the invoices and several reminder letters were sent through courier as well email to the complainant’s on his email id vidyutarora@rediffmail.com.  The complainant himself chose not to make further payment and violated the terms and conditions of the agreement.  The builder cancelled the allotment of apartment.  The Management of the builder denied to reinstate the allotment of the apartment of the complainant.  Denying the remaining contents of the complaint, it was prayed for dismissal of complaint.

3.      The complainant Vidyut Arora in his evidence appeared as CW1 and tendered the following documents:-

1.	Apartment Buyer’s Agreement	Exhibit C-1
2.	Statement of Account	Exhibit C-2
3.	E-mail dated 16.09.2014 sent by complainant to the Builder regarding change of address	Exhibit C-3
4.	E-mail dated 16.09.2014 sent by Builder to the complainant regarding acknowledgment	Exhibit C-4
5.	E-mail dated 19.07.2015 sent by Builder to the complainant regarding demand against the completion of Brickwork	Exhibit C-5
6.	Letter regarding termination of booking sent by the Builder to the Complainant	Exhibit C-6
7.	E-mail dated 22.01.2016 sent by the Builder to the complainant regarding termination of booking	Exhibit C-7
8.	E-mail dated 29.01.2016 sent by the Builder to the complainant regarding granting of time	Exhibit C-8
9.	E-mail dated 30.01.2016 sent by the Complainant to the Builder	Exhibit C-9
10.	E-mail dated 18.02.2016 sent by the Builder to the complainant regarding granting of time	Exhibit C-10
11.	Application dated 28.03.2016 written by Complainant to the Builder regarding waiver of interest	Exhibit C-11
12.	Cheque dated 28.03.2016 accepted by the Builder subject to approval	Exhibit C-12

 

4.      The builder, in its, evidence tendered affidavit of Pradeep Bhatia and tendered the following documents:-

1.	Resolution dated October 26th, 2015	Exhibit OP-1
2.	Application form Godrej Summit	Exhibit OP-2
3.	Allotment Letter dated December 30th, 2012	Exhibit OP-3
4.	Apartment Buyer’s Agreement	Exhibit OP-4
5.	E-mail dated March 03rd, 2014	Exhibit OP-5
6.	E-mail dated June 07th, 2014	Exhibit OP-6
7.	E-mail dated July 27th, 2014	Exhibit OP-7
8.	E-mail dated March 05th, 2015	Exhibit OP-8
9.	E-mail dated July 19th, 2015	Exhibit OP-9
10.	E-mail dated November 17th, 2014	Exhibit OP-10
11.	E-mail dated February 17th, 2015	Exhibit OP-11
12.	E-mail dated January 13th, 2016	Exhibit OP-12
13.	E-mail dated January 31st, 2015	Exhibit OP-13
14.	Statement of account	Exhibit OP-14
15.	Statement of interest	Exhibit OP-15
16.	Driving Licence of complainant	Exhibit OP-16
17.	Invoice dated March 02nd, 2014	Exhibit OP-17
18.	Invoice dated June 02nd, 2014	Exhibit OP-18
19.	Invoice dated June 02nd, 2014	Exhibit OP-19
20.	Invoice dated July 26th, 2014	Exhibit OP-20
21.	Invoice dated July 26th, 2014	Exhibit OP-21
22.	E-mail dated March 06th, 2014	Exhibit OP-22
23.	E-mail dated March 05th, 2015	Exhibit OP-23
24.	Copy of cheque dated March 28th, 2016	Exhibit OP-24
25.	Application to the opposite party sent by the complainant dated March 28th, 2016	Exhibit OP-25
26.	E-mail dated January 22nd, 2016	Exhibit OP-26
27.	E-mail dated February 22nd, 2016	Exhibit OP-27

 

5.      After hearing learned counsel for the parties, perusing the record over the file and the documents relied upon by the parties, the following questions arise for consideration:-

(i)      Whether the complainant is consumer or not?

(ii)      Whether the present complaint is to be referred to Arbitration in view of Clause-13 of the Buyer’s Agreement, dated March 08^th, 2011?

(iii)     Whether the complainant is entitled to get refund of the deposited amount or not?

6.      The first question, that falls for consideration is whether the complainant is consumer or not?  Unless there is evidence on record to show that the complainant had booked more than one property/flat for the purpose of trading, a bald assertion by the builder that apartment had been bought for the purpose of making profits is not sufficient to hold that the transaction was for “commercial purpose.”  So, this plea of the builder is hereby repelled.

7.      The next question is as to whether the matter is to be referred to the Arbitration per Clause 19.1 of the Apartment Buyer’s Agreement, dated April 22^nd, 2013 or not? 

8.      In a recent judgment Aftab Singh versus Emaar MGF Land Limited and another, Consumer Case No.701 of 2015, decided on July 13^th, 2017, Hon’ble National Consumer Disputes Redressal Commission, New Delhi held as under:

          “4. Consequently, we unhesitatingly reject the arguments on behalf of the Builder and hold that an Arbitration Clause in the afore-stated kind of Agreements between the Complainants and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act.”

 

          Hence, the aforesaid contention advanced by learned counsel for the builder is rejected.  

9.      It is not in dispute that the complainant booked apartment with the builder.  He paid Rs.20,80,057.83, to the builder. The complainant informed the builder regarding change of his address vide email dated September 16^th, 2014 (Exhibit C-3).  The builder acknowledged and replied the aforesaid email stating therein that “Thank-you for contacting Godrej Properties.  We have received your email and we will get back to you.  Regards Team Godrej Summit.”  Meaning thereby, the builder was having knowledge of the new address of the complainant. The complainant approached the builder.  The builder asked the complainant to deposit the outstanding amount of Rs.52,05,875/-, to which the complainant issued a cheque of Rs.52,05,875/- dated March 28^th, 2016 (Exhibit OP-24) to the builder.  The builder returned the aforesaid cheque (Exhibit OP-24) to the complainant.  The builder without any rhyme or reason terminated the allotment of the apartment of the complainant and forfeited the deposited amount of Rs.20,80,057.83.  The complainant was ready to pay the outstanding amount, which he paid by cheque (Exhibit OP-24) but the builder returned the cheque and terminated the allotment of the apartment and forfeited the deposited amount.  The act and conduct of the builder clearly shows that it’s only intention was to forfeit the deposited amount of the complainant.  Learned counsel for the complainant has stated that the complainant is still ready to take the possession of the allotted apartment after making the payment of outstanding amount to the builder.  In this view of the matter, the builder could not deny the refund of the deposited amount sought by the complainant. 

10.    In view of above, the complaint is allowed. Godrej Properties Limited -builder is directed to pay Rs.20,80,057.83 to the complainant, alongwith interest at the rate of 12% per annum from the date of its respective deposits till the date of realization; Rs.25,000/- as compensation for rendering deficient services and Rs.11,000/- towards litigation expenses. The entire amount be paid by the builder within a period of 45 days, from the date of receipt of the order, otherwise, it will carry interest at the rate of 18% per annum, till realization and it calls for pointed notice that under Section 27 of the Act, if the builder fails or omits to comply with this order, it shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to three years or with fine or both.

 

Announced 01.08.2017

(Urvashi Agnihotri) Member

(Balbir Singh) Judicial Member

(Nawab Singh) President

 

U.K