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HARYANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA
NAWAB SINGH, PRESIDENT, BALBIR SINGH, DIWAN SINGH CHAUHAN, MEMBERS
Sudesh Behal - Complainant
Versus
Era Landmarks Limited & Anr. – Respondents
Complaint No. 281 of 2016
Decided on : 11-01-2018
Consumer Protection Act - Consumer Complaint - Section 17 - Clause 10.1 of the Buyers Agreement - Arbitration and Conciliation Act, 1996 - [17, 10.1] - The court discussed the applicability of the Consumer Protection Act, the interpretation of Clause 10.1 of the Buyers Agreement, and the relevance of the Arbitration and Conciliation Act, 1996. The court's decision was influenced by the failure of the developer to offer possession within the stipulated time and the consumer's entitlement to refund and compensation.
Fact of the Case:
The complainant purchased a flat from the developer, who failed to complete the construction and offer possession within the agreed timeframe. The complainant sought a refund of the deposited amount.
Finding of the Court:
The court found that the complainant was a consumer and not engaged in commercial activities. It rejected the contention to refer the matter to arbitration and held the developer liable to refund the deposited amount and pay compensation.
Issues: (i) Whether the complainant is a consumer or not? (ii) Whether the matter is to be referred to Arbitration? (iii) Whether the complainant is entitled to a refund?
Ratio Decidendi: The court held that the complainant was a consumer and not engaged in commercial activities. It rejected the referral to arbitration based on a recent judgment and interpreted Clause 10.1 of the Buyers Agreement to hold the developer liable for non-performance.
Final Decision: The complaint was allowed, and the developer was directed to refund the deposited amount with interest, pay compensation for deficient services, and cover litigation expenses.
ORDER :
Mr. Justice Nawab Singh, President (Oral)-Sudesh Behal-complainant, has filed the instant complaint under Section 17 of the Consumer Protection Act, 1986 with the averments that on 22nd November, 2010, the complainant purchased Flat No. 902, 9th Floor, Tower D, Era Sky-Ville in Sector 68, Gurgaon from Era Landmarks-opposite parties (for short ‘Developer’). Flat Buyers Agreement dated 17th November, 2012 (Exhibit C-27) was executed between the complainant and the Developer. The basic sale price of the flat was Rs. 63,94,500. As per Clause 10.1 of the Buyers Agreement, the possession of the flat was to be offered within a period of 36 months (with a grace period of 6 months) from the date of execution of the agreement, that is, on or before 17.5.2016. In all, the complainant paid Rs. 44,56,318 to the Developer. The Developer did not complete the construction on the site. The Developer vide letter dated 14th May, 2015 had also shown its inability to complete the construction in time. The complainant requested to refund the deposited amount from the Developer but to no avail.
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. Clause 19.1 of the Buyer’s Agreement (Exhibit C-27) 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 and Conciliation Act, 1996. The Developer denied the averments of the complaint and pleaded that First Information Report No. 85 of 2015 was registered against Hem Singh Bharana, Director of Era Landmarks Limited. The FIR pertains to this project. Hem Singh Bharana filed CRM-M 40946 of 2015 and 40948 of 2015 before the Hon’ble Punjab and Haryana High Court at Chandigarh. The Hon’ble High Court directed him to pay Rs. 10 crors per month to the un-allotted customers. The developer is complying with the directions of the Hon’ble High Court. In the month of January 2017, the developer deposited Rs. 8 crors for renewal of licence before the competent authority.
3. Gaurav Puri, being the attorney holder of the complainant appeared as CW1 in the evidence and produced the following documents:
| 1. | Photographs of Claim made by the Builder to C-26 | Exhibits C-2 |
| 2. | Buyers Agreement dated 17.11.2012 | Exhibit C-27 |
| 3. | Receipt of payment dated 22.11.2010 | Exhibit C-28 |
| 4. | Receipt of payment dated 1.12.2010 | Exhibit C-29 |
| 5. | Statement of Account dated 15.1.2011 and 7.3.2011 | Exhibit C-30 |
| 6. | Statement of Account dated 21.9.2011 | Exhibit C-31 |
| 7. | Receipt of payment dated 16.8.2013 | Exhibit C-32 |
| 8. | Receipt of payment dated 17.12.2013 | Exhibit C-33 |
| 9. | Receipt of payment dated 17.2.2014 | Exhibit C-34 |
| 10. | TDS Certificate dated 28.3.2014 | Exhibit C-35 |
| 11. | Receipt of payment dated 27.6.2014 | Exhibit C-36 |
| 12. | Demand Notice dated 16.7.2013 | Exhibit C-37 |
| 13. | Demand Notice dated 26.11.2013 | Exhibit C-38 |
| 14. | Letter dated 14.5.2015 written by 39Builder to the complainant expressing inability of timely construction/ possession | Exhibit C- |
| 15. | Photographs regarding construction 40 to C-50 | Exhibits C- update at site |
| 16. | Letter dated 9.3.2013 written by the Directorate of Town and Country Planning Haryana to Golden Glow Estate Private Limited (subsidiary of the Builder). | Exhibit C-51 |
| 17. | Letter dated 17.5.2016 issued by the District Town Planner (HQ) for Director General of Town and Country Planning Haryana. | Exhibit C-52 |
| 18. | Public notice dated 17.5.2016 | Exhibit C-53 |
| 19. | First Information Report No. 443 dated 26.9.2015 | Exhibit C-54 |
4. The Develop
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