Existence of an arbitration clause does not bar the entertainment of a complaint filed by a consumer under the Consumer Protection Act. The Act provides an additional remedy and is not in derogation of any other law.

ORDER

Nawab Singh, President.—The present complaint under Section 17 of the Consumer Protection Act, 1986 (for short, 'Consumer Act') has been filed by Dhiraj Gupta and his wife Punita Gupta-complainants averring that on February 12th, 2011, they booked a flat with Unitech Limited-opposite party (for short, 'Builder') in the project Unitech Gardens, Sector 97, Uniworld City, Mohali by paying Rs. 3,77,763/- through cheque No.001852. An agreement dated March 08th, 2011 (Exhibit C-2) was executed between the complainants and the builder. As per clause 4 a (i) of the agreement, the possession of the flat - apartment was to be given within thirty six months of signing the agreement. The builder had issued allotment letter (Exhibit C-3) whereby flat No.504 in Block No.3 was allotted to the complainants for a total consideration of Rs. 40,48,875/-. The complainants paid amount of Rs. 38,58,247/- to the builder vide receipts Exhibit C-4 to 14. In spite of repeated requests made to the builder to handover the possession to the complainants, the possession was not handed over. The complainants prayed that the builder be directed to refund the deposited amount, that is, Rs. 38,58,247/- along with interest at the rate of 18% per annum from the date of its respective deposit; compensation and to pay Rs. 8,91,049/- as financial loss suffered on account of pre Equated Monthly Instalments.

2. Unitech, in its reply, resisted the complaint on various grounds, including its maintainability. The builder in preliminary objections averred that this Commission does not have the pecuniary jurisdiction to try/adjudicate the complaint because the complainants are not "Consumers" within the meaning of Section 2(1)(d) of the Consumer Act, as they already own residential property and the flat in question has been booked for resale/commercial purpose; vide Clause-13 of the Buyer's Agreement, dated March 08th, 2011, it was resolved between the parties that all their 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 (for short, 'Arbitration Act, 1996') and in view thereof, no Court or Commission or Tribunal, except the Arbitral Tribunal, has jurisdiction to entertain any dispute arising out of the transaction in question. On merits, it is pleaded that the possession has got delayed due to force majeure circumstances, inasmuch as, due to active implementation of social schemes, like National Rural Employment Guarantee Act (NREGA) and Jawaharlal Nehru National Urban Renewal Mission (JNNURM), there was a sudden shortage of labour in the real estate market and, therefore, the brief amenities, to be provided, could not be completed on time. Further, the overall recession and financial problems, which were not foreseen, also contributed to the delay in the completion of the project.

3. The complainants in their evidence examined Dhiraj Gupta- complainant as CW1 and produced documents. The builder tendered affidavit of Lalit Gupta, authorised representative along with document Exhibit OP-1.

4. The following questions arise for consideration:-

(i) Whether the complainants are consumers or not

(ii) Whether the present complaint is to be referred to Arbitration in view of Clause-13 of the Buyer's Agreement, dated March 08th, 2011

(iii) Whether the builder defaulted in delivering the possession of the flat to the complainants or not

5. The first question, that falls for consideration is whether the complainants are consumers or not Since at the time of booking of the flat, the complainants were already owning a house and therefore, the flat was booked for resale/commercial purpose and hence they were not "Consumers" within the meaning of Section 2(1)(d) of the Consumer Act, unless there is evidence on record to show that the complainants had booked more than one property/flat for the purpose of trading, a