Delhi

New Delhi

CC/529/2014

Surender Kuma Sharma - Complainant(s)

Versus

M/S. M2K Infrastructure - Opp.Party(s)

27 May 2016

ORDER

 

 

CONSUMER DISPUTES REDRESSAL FORUM-VI (DISTT. NEW DELHI), ‘M’ BLOCK, 1^STFLOOR, VIKAS BHAWAN, I.P.ESTATE, NEW DELHI-110002.

 

Case No.CC/529/14                                                                                                   Dated:

In the matter of:

 

              M/S Surender Kumar Sharma

              S/O Sh. Parmanand Sharma

              R/o H.No 1283 , Sector -17

              Pocket-C Gurgaon Haryana.

 

 

              ……..COMPLAINANT

    

VERSUS

M/s M2K Infrastructure Pvt Ltd

E-13/29 Harsha Bhawan,

Connaught Place

New Delhi

 

 

………. OPPOSITE PARTIES

 

ORDER 

MEMBER: H M VYAS

A complaint under section 12 in Consumer Protection Act, 1986 has been filed by the complainant praying for refund of Rs.3 lacs deposited with OP along with interest at 12% p.a; demanded Rs.2 lacs as damages/compensation for deficient services, mental agony, pain and suffering caused to the complainant and Rs.21,000/- as  litigation expenses.

Initially the complaint was filed in the Distt. Forum Janak Puri where the said complaint was dismissed in default on 19.9.12.  The complainant filed FA No.1149/12 and  the Hon’ble State Commission while allowing the appeal directed the Distt. Forum to restore the case on its original number and to proceed to decide the case on merits vide Order/Judgment dt.25.4.13. The Consumer Distt. Forum Janak Puri vide orders dated 01.4.2014 referred the matter to the Hon’ble State Commission for transfer to the other Distt. Forum holding that the territorial jurisdiction did not vests with them and as such this complaint case has been transferred by the Hon’ble State Commission to the New Delhi Distt. Forum for disposal. 

The complainant has alleged that he got registered with the OP for allotment of a flat in “Proposed Residential Group Housing Project “M2K County Heights” at Dharuhera, Haryana and deposited the first installment of Rs. 3 lacs for flat/apartment Type 3 Bedroom, tentative user area of 1350 Sq.fts. on basic sale price of Rs.1495/- per Sq.ft. Provisional apartment No.C-402 (appears to be typographical error, as the flat No. in all documents is B-706) in residential project was allotted by the OP to complainant. The complainant further alleges that the OP failed to give the booked/allotted flat to complaint and as such requested the OP to handover the flat or to cancel the booking and refund the whole amount but the OP lingered it on.  The complainant in support of his contentions has filed the copy of receipt for payment of Rs.3 lacs (Exhibit C-1) letters of OP dated 10.1.07(Exhibit C-2), 11.8.07(Exhibit C-3) and a legal notice dated 12.9.11 (Exhibit C-4). 

The OP filed W.S./its version denying the claim and has also taken preliminary objections which broadly rest on the provisions of the “Agreement/Terms of Sale” of the flat under reference. As per the OP’s Version/WS, the complainant is not a consumer and bound by the terms of offer and the terms of Sale whereunder the complainant has agreed to various conditions including forfeiture clause of earnest money.  It is further contended that the complainant’s application/offer was agreed to be irrevocable; as per clause 71 of the “Terms of Sale” the  parties to resolve  their disputes by discussion and settlement and failing which by Arbitration.  The complainant did not choose the mode of the payment nor returned the duly signed formal application for allotment in spite of repeated reminders and also did not return the ‘Apartment Buyers Agreement’.  The complainant was issued demand letters as per the “construction linked plan” for making payments but he failed.

 The OP also raised the objections that the complainant breached the terms of agreement; the complaint is barred by limitation and that this Forum does not have jurisdiction also in view of Arbitration clause in the agreement.

In support of his case complainant has filed his affidavit in evidence. On behalf of OP affidavit in evidence of Shri Vipin Jain, authorized representative of OP is filed.  Both parties have filed written arguments.

We have heard learned counsels for parties and have gone through written arguments filed on behalf of parties, record of the case and relevant provisions of law.  The OP has filed common Affidavit dated 23.12.15 in respect of CC No.529 to 534 of 2014 through Shri Manoj Kumar, Vice President placing on record the status of construction of flats/towers in each of the cases.  It is an admitted position that the amount of Rs.03 lacs paid by the complainant was received by the OP, however, OP has denied the refund mainly on the ground that the complainant failed to make the payment of balance amount payable at his end despite of reminders and breached the Terms & Conditions of allotment of Agreement. The documents relied upon by the OP are:-

 Application for advance registration dated Nil (Ex-OP-1); blank Application Form (Ex-OP-2); Payment receipt No.2549 dated 21.11.06 (Ex-OP-3); Demand letter dated 26.02.07; reminder letter dt. 17.5.07 (Ex-OP-4 Colly); letter dated 11.8.07 (Ex-OP-5); letter dt.19.11.07 (Ex-OP-6); letter dt. 5.5.08, 01.04.08 25.6.08, 8..8.08, 12.09.08 (Ex-OP-7 Colly); letter dated 31.12.07 (Ex-OP-8); letters of 4.4.08, 21.4.08, 12.5.08, 5.6.08, 14.7.08, 18.8.08, 18.9.08 and 18.5.11 (Ex-OP-9 Colly); letter of 3.7.08, (Ex-OP-10); letter of 4.10.08(Ex-OP-11); letter of 17.1.08  and reminders as (Ex-OP-12 colly) and photographs (Ex-OP-13 colly).

 A glance over the documents relied upon by the OP indicates  that the application for advance registration for a flat in future Original Project of the OP Co. was made by the complainant and admitted the receipt of the amount of Rs.3 lacs.   It is noticed that the Apartment No. B-706 in M2K County Heights provisionally allotted to the complainant falls in Tower B. The common affidavit indicating the status of construction and written arguments filed by the OP speak that the Towers BC & D did not come into existence and the said Affidavit in its Para 2 only mentions that the Occupancy Certificate of the Tower J & G was issued. The entire affidavit nowhere states the construction in respect of Tower B C & D has commenced but states that construction on these towers will begin in next phase of construction.  The OP has also stated that the allotment was cancelled on the ground of non-payment of the remaining amount.

In view of foregoing factual matrix stated by both the parties and after giving careful consideration to the pleadings, evidence and arguments addressed by both the parties we are lead to conclude that:-

1. The amount of Rs.03 lacs paid by the complainant is admitted by OP. 
2. The documents and the affidavit dt. 23.12.15 of OP filed regarding stage of construction clearly shows that the construction in respect of Towers B C &D will begin in next phase of construction.
3. Despite such position of non-commencement of construction of the Towers B C & D the OP insisted for payment of the amount and for non-payment by the complainant the OP cancelled the allotment in 2011.
4.  As per OP’s own contentions the demands were raised as per construction linked plan.  It is noticeable that such series of Demand letters were issued in the scenario when the construction of these towers had not ever been commenced and begin in next phase of construction (Para 10 of the OP’s Affidavit dt 23.12.15).
5. The agreement for sale of the Apartment has not been   accepted or signed by the complaint.
6. So far as the objection regarding limitation raised by the OP,  we are of the view that the cause of action is of continuing nature and thus the objection is not sustainable.
7. The objection regarding the jurisdiction also does not arise after the case was transferred to this New Delhi, CDRF-VI  after the order of the Distt. Forum, Janakpuri.

       The objection that the complainant is not maintainable as         the Arbitration clause exists in the agreement is rejected in view of section 3 of the C.P. Act.

On this issue, the provisions of this Consumer Protection Act are in addition to and not in derogation to the other Acts or law or prevailing in India.  Even if  there exists an arbitration clause in an agreement and a complaint is made by the complainant in relation to a deficiency of  service  then the existence of an arbitration clause would not bar to proceedings before this Forums as held by the Hon'ble Supreme Court in Skypay Couriers Limited V. Tata Chemicals Limited  IV (2000) SLT 494 , Trans Mediterranean Airways V. Universal Exports IV (2011) CPJ 13 (SC) & National Seeds Corporation Ltd. V. M. Madhusudhan Reddy, 2012 (1) CPC 190.

 

In M/s. National Seeds Corporation Ltd. v. M. Madhusudhan Reddy : 2012(2) SCC 506 : 2012() AIR (SC) 1160 : 2012(1) Scale 367 the honourable Supreme Court has made the following observations:

"The remedy of arbitration is not the only remedy available to a grower. Rather, it is an optional remedy. He can either seek reference to an arbitrator or file a complaint under the Consumer Act. If the grower opts for the remedy of arbitration, then it may be possible to say that he cannot, subsequently, file complaint under the Consumer Act. However, if he chooses to file a complaint in the first instance before the competent Consumer Forum, then he cannot be denied relief by invoking Section 8 of the Arbitration and Conciliation Act, 1996 Act. Moreover, the plain language of Section 3 of the Consumer Act makes it clear that the remedy available in that Act is in addition to and not in derogation of the provisions of any other law for the time being in force. In Fair Air Engineers (P) Ltd. v. N.K. Modi (supra), the 2-Judge Bench interpreted that section and held as under :

"the provisions of the Act are to be construed widely to give effect to the object and purpose of the Act. It is seen that Section 3 envisages that the provisions of the Act are in addition to and are not in derogation of any other law in force. It is true, as rightly contended by Shri Suri, that the words "in derogation of the provisions of any other law for the time being in force" would be given proper meaning and effect and if the complaint is not stayed and the parties are not relegated to the arbitration, the Act purports to operate in derogation of the provisions of the Arbitration Act. Prima facie, the contention appears to be plausible but on construction and conspectus of the provisions of the Act we think that the contention is not well founded. Parliament is aware of the provisions of the Arbitration Act and the Contract Act, 1872 and the consequential remedy available under Section 9 of the Civil Procedure Code, i.e., to avail of right of civil action in a competent court of civil jurisdiction. Nonetheless, the Act provides the additional remedy.

It would, therefore, be clear that the legislature intended to provide a remedy in addition to the consentient arbitration which could be enforced under the Arbitration Act or the civil action in a suit under the provisions of the Civil Procedure Code. Thereby, as seen, Section 34 of the Act does not confer an automatic right nor create an automatic embargo on the exercise of the power by the judicial authority under the Act. It is a matter of discretion. Considered from this perspective, we hold that though the District Forum, State Commission and National Commission are judicial authorities, for the purpose of Section 34 of the Arbitration Act, in view of the object of the Act and by operation of Section 3 thereof, we are of the considered view that it would be appropriate that these forums created under the Act are at liberty to proceed with the matters in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceedings pursuant to a contract entered into between the parties. The reason is that the Act intends to relieve the consumers of the cumbersome arbitration proceedings or civil action unless the forums on their own and on the peculiar facts and circumstances of a particular case, come to the conclusion that the appropriate forum for adjudication of the disputes would be otherwise those given in the Act."

(emphasis supplied)

30. In Skypay Couriers Limited v. Tata Chemicals Limited (supra) this Court observed :

"Even if there exists an arbitration clause in an agreement and a complaint is made by the consumer, in relation to a certain deficiency of service, then the existence of an arbitration clause will not be a bar to the entertainment of the complaint by the Redressal Agency, constituted under the Consumer Protection Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force."

31. In Trans Mediterranean Airways v. Universal Exports (supra) it was observed :

"In our view, the protection provided under the CP Act to consumers is in addition to the remedies available under any other statute. It does not extinguish the remedies under another statute but provides an additional or alternative remedy."

32. The aforementioned judgments present a clear answer to the appellant's challenge to the impugned orders on the ground that the growers had not availed the remedy of arbitration......................".

 

 

The Hon’ble National Commission is identical situation as in the present case, has upheld refund of deposited amount with interest directed by Fora below in the RP No. 729,730,731 of 2008 titled as Prasad Homes Pvt. Ltd. Vs. Mahender Reddy & Ors. Reported as 1(2009)/CPJ 136 (NC).

We, therefore, hold that the complainant is a consumer and the OP to be deficient in service and direct the OP to refund the amount of Rs.3 lacs deposited with OP along with simple interest at 12% p.a., from the date of deposit by the complaint till the date of realization.  The OP shall also pay a total  sum of Rs.30000/- as damages/compensation and litigation expenses to the complainant.

The order shall be complied with within 30 days from the date of receipt of the copy of the order; failing which further simple interest @18% on the awarded amount shall be payable till the date of realization.

Copy of the order be sent to the parties free of cost by post.  This order be also uploaded on server www.confonet.nic.in.

Announced in open Forum on 27.05.2016

 

 

(S.K.SARVARIA)

PRESIDENT

 

 

 

(H M VYAS)

MEMBER