IMPORTANT POINTS
1) Arbitration Clause in the Agreement does not bar jurisdiction of the Consumer Fora to entertain the Complaint
2) No hesitation in holding that terms of Apartment Buyer’s Agreement were wholly one-sided and unfair to Complainant

ORDER

R.K. Agrawal, President—The present Consumer Complaint has been filed by the Complainants Under Section 21(a)(i) of the Consumer Protection Act, 1986 (for short “the Act”) against the Opposite Party, M/s. Krrish Shalimar Projects Pvt. Ltd. (hereinafter to be referred to as “the Developer”) seeking refund of the deposited amount with interest and compensation as the Builder has failed to deliver the vacant physical possession of the booked Apartment in terms of the Apartment Buyer’s Agreement.

2. It has been, inter alia, averred in the Complaint that the Complainants had booked a Residential Flat with the Developer for a total Sale Consideration of Rs.3,13,76,660/- and they were allotted Apartment No. A-1101, Tower A, Ibiza Town, Surajkund, Faridabad, Haryana admeasuring 4000 Sq. Ft. The Apartment Buyer’s Agreement (hereinafter to be referred to as the “Agreement”) was executed between the parties on 28.12.2012. In terms of Clause 3.1 of the Agreement, the Developer was under an obligation to complete the construction and hand over the possession of the booked Apartment within a period of 36 months (with a grace period of 9 months) from the date of signing of the Agreement, i.e. latest by 30.09.2016 which was subject to Force Majeure conditions and reasons specified in Clause 10 of the Agreement. According to the Complainants, they paid to the Developers a sum of Rs.2,77,95,968/- out of which Rs.26,80,050/- was paid by the Canara Bank from which the Complainants availed of Housing Loan facility. It is stated by the Complainants that all the payments were made to the Developer with the hope and anticipation that the Developer shall hand over the possession on time specified in the Agreement, however, the Developer could not complete the construction and deliver the possession within the stipulated period.

3. Vide email dated 22.12.2016, the Complainant called upon the Developer to pay Rs.40,000/- towards delayed compensation @ Rs.10 per sq. ft. in terms of the Agreement. Complainants wrote another email dated 16.02.2017 asking the Developer to compensate them for the delayed possession but in vain. The same was the fate of another email dated 04.05.2017.

4. Since, the Complainants did not want to wait indefinitely for handing over the possession of allotted Flat, finally, vide letter dated 10.06.2017, they requested the Developer to refund the entire deposited amount with interest @ 18% p.a. Vide email dated 15.06.2017, the Developer informed to the Complainants that on their verbal instructions they are seeking to shift their Flat to either Tower B or C. However, the Complainant denied the said instructions either in writing or verbal. It is further averred by the Complainants that they have invested their hard-earned money with the Developer but despite having received the hefty amount of Rs.2,77,95,968/-, the Developer has committed a contractual default by not handing over the possession of the booked Flat as promised and they are liable to refund the deposited amount with interest @12% p.a in terms of Clause 2.10 of the Agreement. Hence, alleging deficiency in service, the Complainant filed the present complaint with the following prayers:-

(i) direct the Opposite Party to refund an amount of Rs.2,77,95,968/- (principal amount) along with Rs.1,11,32,992/- (being the interest amount calculated @12% p.a. from the date of deposit upto the date of filing of the complaint) along with future and pendent lite interest @ 12%;

(ii) direct the Opposite Party to pay an amount of Rs.29,14,964/- which the Complainant has paid to the Canara Bank from where the Complainant had availed the Housing Loan for the said apartment along with future and pendent lite interest;

(iii) direct the Opposite Parties to pay an amount Rs.50,00,000/- as to compensation to the Complainant for mental agony, torture and damages;

(iv) direct the Opposite Party to pay an amount of Rs.5,00,000/- to the Complainant towards the cost of the present litigat