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Ashok Kumar Taneja Vs. Orris Infrastructure Pvt. Ltd. - (National Consumer Disputes Redressal Commission) (21 May 2019)

Arbitration clause in Agreement does not bar jurisdiction of Consumer Fora to entertain Complaint

MANU/CF/0348/2019

Consumer

The brief facts in present case are that the Complainant, lured by the rosy representation of the officials of the Developer and the promise of possession within three years from the date of booking, booked an Apartment in the project 'Aster Court Premier' by paying a booking amount of 4,50,000 by cheque. On 18th May, 2012, an Allotment Letter was issued by the Developer. The Buyer's Agreement was executed between the parties on 4th June, 2012. It is stated that, the Complainant has paid 95% of the total sale consideration.

It is pleaded that, despite having paid 95% of the total sale consideration on time, and making several requests, the Developer has failed to deliver the possession to the Complainant till the date of filing of the present Complaint. It is averred that the project is far from completion.

The Complainant sought for refund of the money paid with interest as the Developer failed to deliver the possession within the stipulated time but there was no response. Vexed with the attitude of the Developer, the Complainant approached this Commission.

The Developer submits that, the Complainant is not a 'Consumer' and that he was in the business of buying and selling properties and was an 'Investor' is completely unsustainable in the light of the judgement of this Commission in Kavita Ahuja vs. Shipra Estates, in which this Commission has laid down the principle that the onus of establishing that the Complainant was dealing in real estate is on the Opposite Parties, which in the instant case they have failed to discharge or file any documentary evidence to prove their case that the Complainant is an 'Investor' and not a 'Consumer'. Therefore, the Complainants are 'Consumers' as defined under Section 2 (1)(d) of the Act.

Except for stating that there was shortage of water, which viewed from any angle, cannot be said to be a "Force Majeure Event", the Opposite Party has not filed any material on record to prove that the reasons were beyond their control.

Regarding objections raised by the learned counsel for the Developer that the clause of Arbitration bars this Commission from entertaining the Complaint. The Hon'ble Supreme Court in M/S Emaar MGF Land Limited vs Aftab Singh, has laid down the law that, the Arbitration clause in the Agreement does not bar the jurisdiction of the Consumer Fora to entertain the Complaint.

As no material has been produced by the Opposite Party to prove that, the completion of construction and offer of possession has been delayed on account of reasons beyond theircontrol, there is no justification for the said delay.

In Commission in Emmar MGF Land Ltd. & Ors. vs. Amit Puri, it was laid down that, after the promised date of delivery it is the discretion of the Complainant whether he/she wants to accept the offer of possession, if any, or seek refund of the amounts paid with reasonable interest.

In the instant case also the Complainant cannot be made to wait indefinitely for possession of the unit, as the construction is yet to be completed even after a period of more than 7 years has lapsed from the date of Agreement. Therefore, Complainant is entitled for refund of the principal amount with reasonable interest.

In the instant case, admittedly the project is still not complete and therefore the question of 'electing' to seek refund cannot be a substantial ground to deny refund. The filing of the Complaint with this Consumer Forum itself can be construed to be an 'electing' to seek refund. Complaint is allowed in part directing the Opposite Party to refund the principal amount with interest @ 12% p.a. from the respective dates of deposit till the date of realization together with costs of 25,000 to the Complainant.

Relevant : Emmar MGF Land Ltd. & Ors. vs. Amit Puri MANU/CF/0317/2015, Emaar MGF Land Limited vs. Aftab Singh MANU/SC/1458/2018, Kavita Ahuja vs. Shipra Estates MANU/CF/0937/2015

Tags : SERVICE   DEFICIENCY   REFUND   ENTITLEMENT  

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