DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (CENTRAL)

ISBT KASHMERE GATE DELHI

CC/82/2017

Sh. Vishal Jain

S/o Sh. Naveen Jain,

R/o 57/G-1, Than Singh Nagar,

Anand Prabhat, New Delhi-110005.                                    …..COMPLAINANT

VERSUS

Sunworld City Pvt. Ltd.

Through its director

Regd. Office: 117, Hans Bhawan,

1, Bahadur Shah Zafar Marg,

New Delhi-110002.

Corporate office:-

A-4, Ground Floor, Sector-4,

Noida, (U.P.)-201301.                                                      …..OPPOSITE PARTY

Quorum:     Ms. Rekha Rani, President

                   Ms. Manju Bala Sharma, Member

                   Dr. R.C. Meena, Member

ORDER

Ms. Rekha Rani, President

1. Instant complaint was filed by Sh. Vishal Jain (in short the complainant) under Section 12 of the Consumer Protection Act 1986 as amended up to date inter-alia pleading therein that one Mr. Prashant, authorised broker of Sunworld City Vandita (in short OP) approached the complainant and induced him to buy a residential apartment in their project namely Sunworld City Vandita of OP situated at TS-7, Sector-22, D.Yamuna Express Way, Gautam Budh Nagar, U.P. claiming the same to be a world class city with a big green area, swimming pool, gym etc. with an assurance that fully furnished apartment will be handed over to the complainant within 30 month with a grace period of 6 months from the date of booking.  Complainant gave Rs. 2,00,000/- including service tax.  Thereafter the complainant was allotted an apartment on 11^th floor in tower 12 with super built up area measuring approximately 925.00 sq. ft. vide allotment letter of OP dated 08.10.2013. Complainant made further payment and the total amount paid by him is Rs. 4,43,500/-.  Complainant was informed by the representative of OP that he will be required to pay further depending upon the stages of construction. 36 months have passed.  The land where the project was to commence is lying vacant and no construction has started. Complainant was shocked to see that no construction at all has taken place on the project site. On questioning, the authorised representative of OP informed the complainant that the project was shifted elsewhere and that they are not able to raise construction at the original site. Complainant sent a legal notice dated 21.12.2016 to OP. OP did not bother to comply with the said notice nor replied to the same. Complainant has prayed for direction to the OP to return his deposited amount of Rs. 4,43,500/-, Rs. 10,00,000/- as compensation for causing mental agony and litigation cost.
2. On receipt of notice OP appeared and contested the claim vide its written statement on 18.07.2017 and stopped appearing before this Forum thereafter. Complainant has adduced evidence by way of affidavit. We have perused the same. We have heard Sh. Vikas Bhardwaj, counsel for complainant.
3. OP in its written statement has laid emphasis on clause 30 of the application form vide which it was agreed between the parties that in case of any dispute arising out of terms and conditions of the agreement, the matter shall be adjudicated by a sole arbitrator. It is submitted that this Forum has no jurisdiction in view of the said clause regarding appointment of arbitrator.
4. In Aftab Singh & Ors V/s Emaar MGF Land Ltd & Anr.III  (2017) CPJ 270 (NC)  the Hon’ble National Commission held that the disputes under the Act are non-arbitral and section 8 of Arbitrtion and Conciliation Act cannot be construed   as a mandate to consumer forums, constituted under  the Act, to refer parties to arbitration in terms of arbitration agreement.  Further as per section 3 of the Act remedy under the Act  is in addition to and not in derogation of the provisions of any other law.  Reference can also be made to decision of National Commission in complaint case No. 346/13 titled as Lt. Col. Anil Raj Vs Unitech decided on 02.05.2016.  In Neeraj Bhope & Anr., Bharatha Laxmi Vetsa & Anr. , Souvik Khamaru vs. Alpine Housing Development & Ors., III (2013) CPJ 58 (Kar.), in Satish Kumar Pandey & Ors. vs. Unitech Ltd., III (2015) CPJ 440 (NC), in Bharat Sanchar Nigam Ltd. vs. Ambika Singh, III (2010) CPJ 265 (U.P.) and in World Wide Immigration Consultancy Services vs. K.R. Shambhu, III (2010) CPJ 349 (Ker.) it was held that availability of arbitration as remedy does not bar complainant from approaching consumer Forum in case of deficiency in services.
5. Further it is pleaded in the written statement that due to various litigations by various land owners/farmers by way of different writs before Allahabad High Court and stay granted by Allahabad High Court project was delayed. It is also stated that the complainant was offered another apartment at another location which the complainant refused. It is also stated that the complainant had to deposit 10% of the purchase price at the time of booking further 10% within 45 days of the booking and further 10% within 90 days of the booking.  It is stated that except the initial amount of Rs. 2,00,000/- complainant did not deposit any amount on due dates which was to be deposited irrespective of stage of construction.  It is admitted that the complainant deposited Rs. 4,30,000/- including total service tax with the OP.  It is denied that OP agreed to give possession of the apartment to the complainant within 36 months.  It is stated that as per clause 18 of the application form it was agreed that OP shall make efforts to give possession of the apartment to the allottee within 48 months from the date of execution of builder-buyer agreement subject to reasonable extension of time if construction is delayed for reasons beyond its control.
6. OP has not produced any documents mentioned in its written statement on account of which it failed to fulfil its promise of handing over possession of the apartment to the complainant within stipulated period of 48 months.  Complainant has pleaded that construction has not even commenced on the project site.  OP has pleaded that there was stay granted from Allahabad High Court on a litigation initiated by land owners/farmers on account of which it could not raise construction.  OP has not produced any such documents of such litigation or orders passed therein.  OP has not given any particulars of the litigation pending before Allahabad High Court against it regarding the site in question.  OP cannot demand timely payments of instalments without fulfilling its corresponding duty to raise construction and handover the apartment in a time bound manner.  Complainant is not bound to accept alternative apartment at an alternative site.
7. Complainant has alleged that he has paid to the OP an amount of Rs.4,43,500/- .  OP in its rely has submitted that complainant has paid only Rs.4,30,000/- till date.  It is pleaded that cheque for Rs. 13,500/- was dis honoured.  In rejoinder complainant has not specifically rebutted these allegations nor has he produced any documents of encashment of cheque of Rs. 13,500/-.  Complainant has not mentioned dates of deposit of Rs.4,43,500/-. OP is accordingly directed to return to the complainant the amount deposited by him which is Rs. 4,30,000/-. OP is further directed to pay compensation of Rs.1,00,000/- for causing mental agony, harassment to the complainant and for deficiency in service.  OP is also directed to pay Rs. 25,000/- as litigation expenses.  The above said amount shall be paid within 30 days from today failing which 9% interest per annum shall be payable from the date of order till the date of payment.  Copy of this order be sent to the parties as statutorily required. File be consigned to record room.

Announced on           Day of                       2019.