Haryana

StateCommission

CC/177/2016

INDER DEV DESWAL - Complainant(s)

Versus

OMAXE LTD. - Opp.Party(s)

SIKANDER BAKSHI

08 Sep 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

         

                             Consumer Complaint No.     177 of 2016

                                      Date of Institution                  08.07.2016

                                       Date of Decision                             08.09.2017

 

 

 

 

 

 

 

 

Inder Dev Deswal son of Sh. Dharam Singh Deswal, resident of House No.1609, Sector 2, Bahadurgarh, District Jhajjar.

                                      Complainant

Versus

 

1.      Omaxe Limited, Registered Office: Shop No.19B, First Floor, Omaxe Celebration Mall, Sohna Road, Gurgaon.

 

2.      Omaxe Limited, Omaxe House 7, Local Shopping Centre, Kalkaji, New Delhi.

 

                                      Opposite Parties

 

 

 

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

                             Shri Balbir Singh, Judicial Member.

 

                                                                                                               

 

Argued by: Shri Sikander Bakshi, Advocate for the complainant

                   Shri Bhupender Singh, Advocate for the opposite parties

 

                                                   O R D E R

 

NAWAB SINGH J, (ORAL)

 

          Inder Dev Deswal-complainant, has filed the instant complaint under Section 17 of the Consumer Protection Act, 1986 (for short ‘the Act, 1986) with the averments that Flat No.902, 09^th Floor, Tower-18, Revanta Homes, Bahadurgarh was initially allotted to Rahul Bansal and the agreement was executed on December 21^st, 2012. Thereafter, one Mukesh Kumar Singh purchased the aforesaid flat on February 28^th, 2014. The complainant further purchased the flat from Mukesh Kumar Singh in the months of March-April, 2014. In all, Rs.42,71,549/- was paid to Omaxe Limited-opposite party (for short ‘Builder’). The price of the flat was Rs.56,09,800/-.  As per Clause 40(a) of the Buyers Agreement, the construction of the unit was to be completed within a period of 18 months from the date of signing the agreement or within an extended period of 6 months, that is, on or before March 27^th, 2016. The builder failed to handover the possession of the flat to the complainant.

2.      The builder, in its written version, resisted the complaint on various grounds including its maintainability.  The complainant is not “Consumer” within the meaning of Section 2(1)(d) of the Consumer Act, as the flat in question has been booked for the purpose of investment.  Clause 62 of the Buyer’s Agreement, dated March 27^th, 2014, it was resolved between the parties that all the disputes, differences or disagreements arising out of, in connection with or in relation to the Agreement, shall be decided by Arbitration in accordance with the provisions of the Arbitration & Conciliation Act, 1996.  On merits, the builder denied the averments of the complaint and pleaded that the flat was transferred in the name of complainant on October 01^st, 2014.  The period of development shall be computed from the date of execution of the transferred documents, that is, October 01^st, 2014.  The complainant was defaulter in making the payment.    

3.      The complainant Inder Dev Deswal in his evidence appeared as CW1 and produced following the documents:-

1.	Buyers Agreement	Exhibit C-1
2.	Receipts of payment	Exhibit C-2 to C-10
3.	Demand Letter dated May 03rd, 2016 sent by the builder to the complainant	Exhibit C-11
4.	Photograph	Exhibit C-12
5.	Request Forum	Exhibit C-13

 

4.      The builder, examined Deepanjit Singh-OPW-1 and produced the following documents:-

1	Booklet for assignment of allotment right	Exhibit OP-1
2	Affidavit Cum Indemnity	Exhibit OP-2
3	Reminder dated 16.01.2016 sent by opposite parties to the complainant	Exhibit OP-3
4	Reminder dated 01.02.2016 sent by opposite parties to the complainant	Exhibit OP-4
5	Letter dated 17.02.2016 regarding payment of dues outstanding sent by opposite parties to the complainant	Exhibit OP-5
6	Letter dated 01.03.2016 regarding payment of dues outstanding sent by opposite parties to the complainant	Exhibit OP-6
7	Letter dated 17.03.2016 regarding payment of dues outstanding sent by opposite parties to the complainant	Exhibit OP-7
8	Letter dated 01.04.2016 regarding payment of dues outstanding sent by opposite parties to the complainant	Exhibit OP-8
9	Letter dated 19.04.2016 regarding payment of dues outstanding sent by opposite parties to the complainant	Exhibit OP-9
10	Letter dated 03.05.2016 regarding payment of dues outstanding sent by opposite parties to the complainant	Exhibit OP-10
11	Letter dated 19.05.2016 regarding payment of dues outstanding sent by opposite parties to the complainant	Exhibit OP-11
12	Letter dated 01.06.2016 regarding payment of dues outstanding sent by opposite parties to the complainant	Exhibit OP-12
13	Letter dated 17.06.2016 regarding payment of dues outstanding sent by opposite parties to the complainant	Exhibit OP-13
14	Letter dated 01.07.2016 regarding payment of dues outstanding sent by opposite parties to the complainant	Exhibit OP-14
15	Letter dated 20.07.2016 regarding payment of dues outstanding sent by opposite parties to the complainant	Exhibit OP-15
16	Letter dated 01.08.2016 regarding payment of dues outstanding sent by opposite parties to the complainant	Exhibit OP-16
17	Letter dated 19.08.2016 regarding payment of dues outstanding sent by opposite parties to the complainant	Exhibit OP-17
18	Letter dated 01.09.2016 regarding payment of dues outstanding sent by opposite parties to the complainant	Exhibit OP-18
19	Letter dated 15.09.2016 regarding payment of dues outstanding sent by opposite parties to the complainant	Exhibit OP-19

 

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 62 of the Buyer’s Agreement, dated March 27^th, 2014?

(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 62 of the Buyer’s Agreement, dated March 27^th, 2014 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 disputed that the builder floated the project and they were bound to complete the construction work and to handover the possession of the flat within the stipulated period. When the builder invited the applications and collected huge amount from the public, they cannot delay the allotment/possession of the flat. Thus, delay/breach, if any, was on the part of the builder. Moreover, the builder in paragraphs No.10 & 11 of the written version has stated that the “project although minutely delayed, is in its advanced stage of development”. It is clearly made out that the builder was at fault in non-performance of the services agreed. The builder could not deny the refund of the deposited amount sought by the complainant.  The complainant has paid Rs.42,71,549/- to the builder. The builder is a commercial organization and used the amount for promotion of its business.

10.    In view of above, the complaint is allowed.  Omaxe Limited-builder is directed to pay Rs.42,71,549/- (Rupees Forty Two Lakh Seventy One Thousand Five Hundred Forty Nine Only) 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.10,000/- 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 with both.          

  

Announced 08.09.2017

(Balbir Singh) Judicial Member

(Nawab Singh) President

U.K