Haryana

StateCommission

CC/211/2016

CHAROO BINDLE - Complainant(s)

Versus

RAHEJA DEVELOPERS LTD. - Opp.Party(s)

SANJEEV SHARMA

01 Dec 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

         

                             Consumer Complaint No.     211 of 2016

                                      Date of Institution                  04.08.2016

                                       Date of Decision                             01.12.2017

 

 

 

 

 

 

 

 

Charoo Bindle wife of Sh. Rahul Bindle, resident of E-303, Park View City-1, Sohna Road, Gurgaon, Haryana.

                                      Complainant

Versus

 

Raheja Developers Limited through its Chairman having its registered office at E-6, Ground Floor, Saket, New Delhi-110017.

 

Raheja Developers Limited through its Managing Director having marketing office at Raheja Atlantis, Sector 31-32A, Jharsa Road, Gurgaon, Haryana.

                                      Opposite Parties

 

 

 

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

                             Shri Balbir Singh, Judicial Member.

                             Shri Diwan Singh Chauhan, Member.

 

                                                                                                               

 

Argued by: Shri Sanjeev Sharma, Advocate for the complainant

                   Shri Suvir Kumar, Advocate for the opposite parties

 

                                                   O R D E R

 

NAWAB SINGH J, (ORAL)

 

          Charoo Bindle-complainant, has filed the instant complaint under Section 17 of the Consumer Protection Act, 1986 (for short ‘the Act, 1986) with the averments that on October 19^th, 2017, she booked a flat in the project ‘Raheja’s Navodaya’, Sector 92 & 95, Gurgaon with Raheja Developers Limited-opposite party (for short, ‘Developer’). The basic sale price of the flat was Rs.34,07,950/-. Flat Buyers Agreement (Exhibit C-2) was executed between the complainant and the developer on July 04^th, 2008. Flat No.H-113, 11^th Floor, Tower H, Sector 92, Gurgaon was allotted to the complainant.  In all, the complainant paid Rs.39,11,024/- to the developer. As per Clause 4.2 of the Buyers Agreement, the possession of the flat was to be handed over within a period of 36 months from the date of execution of the agreement (Exhibit C-2), that is, on or before July 03^rd, 2011. The developer failed to handover the possession of the flat to the complainant. The complainant prayed that the developer be directed to refund the deposited amount, that is, Rs.39,11,024/- alongwith interest at the rate of 18% per annum; to pay Rs.5,00,000/- on account of harassment and Rs.75,000/- litigation expenses.

2.      The developer, 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 15.2 of the Buyer’s Agreement, 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 developer denied the averments of the complaint and pleaded that the complainant was defaulter in making the payment.    

3.      The complainant Charoo Bindle appeared as CW1 and produced following the documents:-

1.	Application form dated 19.10.2007	Exhibit C-1
2.	Flat Buyer Agreement dated 04.07.2008	Exhibit C-2
3.	Receipt of payment of amount of Rs.3,88,488/- issued by Developers	Exhibit C-3
4.	Receipt of payment of amount of Rs.5,82,732/- issued by Developers	Exhibit C-4
5.	Receipt of payment of amount of Rs.7,897/- issued by Developers	Exhibit C-5
6.	Receipt of payment of amount of Rs.2,00,000/- issued by Developers	Exhibit C-6
7.	Receipt of payment of amount of Rs.2,20,398/- issued by Developers	Exhibit C-7
8.	Receipt of payment of amount of Rs.2,11,030/- issued by Developers	Exhibit C-8
9.	Receipt of payment of amount of Rs.49,030/- issued by Developers	Exhibit C-9
10.	Receipt of payment of amount of Rs.1,74,786/- issued by Developers	Exhibit C-10
11.	Receipt of payment of amount of Rs.3,88,488/- issued by Developers	Exhibit C-11
12.	E-mails	Exhibit C-12
13.	Statement of account as on 01.06.2016	Exhibit C-13
14	E-mails	Exhibit C-14

 

 

4.      The developer, examined Mintu Kumar-OPW-1 and produced the following documents:-

1.	Resolution passed in the meeting held on 20th February, 2017	Exhibit OP-1
2.	Letter dated July 29th, 2008 sent by Developer to the complainant	Exhibit OP-2
3.	Postal receipt dated 29.07.2008	Exhibit OP-3
4.	Letter dated 20th April, 2009 sent by Developer to the complainant	Exhibit OP-4
5.	Demand Letter dated 17.07.2009	Exhibit OP-5
6.	Postal receipt dated 18.07.2009	Exhibit OP-6
7.	Demand Letter dated 05.09.2009	Exhibit OP-7
8.	Postal receipt dated 08.09.2009	Exhibit OP-8
9.	Demand Letter dated 23.10.2009	Exhibit OP-9
10.	Postal receipt dated 26.10.2009	Exhibit OP-10
11.	Google earth images for the year 2011-16	Exhibit OP-11
12.	Demand Letter dated 02.01.2009	Exhibit OP-12
13.	Postal receipt dated 04.01.2009	Exhibit OP-13
14.	Letter dated 17.02.2009 sent by Developer to the complainant	Exhibit OP-14
15.	Postal receipt dated 18.02.2009	Exhibit OP-15
16.	Demand Letter dated 09.01.2010	Exhibit OP-16
17.	Postal receipt dated 12.01.2010	Exhibit OP-17
18.	Demand Letter dated 23.02.2010	Exhibit OP-18
19.	Postal receipt dated 24.02.2010	Exhibit OP-19
20.	Final Notice dated 27.02.2010	Exhibit OP-20
21.	Receipt dated 18.03.2013 of application for permission to occupancy	Exhibit OP-21
22.	Letter dated 11.11.2016 sent by Director General, Town and Country Planning Department Haryana to the Developer granting permission for the occupation of the buildings	Exhibit OP-22
23.	Applicant Ledger run dated 23.02.2017	Exhibit OP-23
24.	Lease Deed 01.04.2008	Exhibit OP-24
25.	E-mail dated 04.03.2017 sent by Developer to the complainant	Exhibit OP-25
26.	Reminder dated 06.01.2017 sent by Developer to the complainant	Exhibit OP-26

 

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 15.2 of the Buyer’s Agreement, dated July 04^th, 2008?

(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 flat for the purpose of trading, a bald assertion by the developer that file 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 developer is hereby repelled.

7.      The next question is as to whether the matter is to be referred to the Arbitration per Clause 15.2 of the Buyer’s Agreement, dated July 04^th, 2008 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 developer is rejected.

9.      It is not disputed that the developer 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 developer 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 developer.  The developer was to hand over the possession of the flat on or before July 03^rd, 2011, which the developer failed to do so.  It is certainly a deficiency in service on the part of developer. The developer could not deny the refund of the deposited amount sought by the complainant.  The complainant has paid Rs.39,11,024/- to the developer. The developer is a commercial organization and used the amount for promotion of its business.

10.    In view of above, the complaint is allowed.  Raheja Developers Limited-Developer is directed to pay Rs.39,11,024/- (Rupees Thirty Nine Lakh Eleven Thousand Twenty Four 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 developer 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 developer 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 01.12.017

(Diwan Singh Chauhan) Member

(Balbir Singh) Judicial Member

(Nawab Singh) President

U.K