IMPORTANT POINT
Arbitration Clause - An arbitration clause in the Agreement does not bar the jurisdiction of the consumer fora to entertain the complaint.

ORDER

Subhash Chandra, Member—This complaint has been filed under section 21(a) of the Consumer Protection Act, 1986 (in short, the ‘Act’) alleging deficiency in services and unfair trade practice in respect of the residential apartment booked by the complainants with the opposite party.

2. In brief, the facts of the case are that the complainant had booked a residential flat in the project ‘Indiabulls Enigma’, Sector 110, Gurgaon, Haryana being developed and executed by the opposite party on 02.12.2011 by paying a booking amount of Rs.5,00,000/-. On 15.02.2012 he was provisionally allotted a 4 BHK plus servant quarter unit, number 112, 11th floor in Block B by the opposite party for a sale consideration of Rs.1,89,40,251/- inclusive of all charges. A Flat Buyer’s Agreement (in short, ‘Agreement’) was signed between the complainant and the opposite party on 16.02.2012 and as per the Agreement possession was promised after 3 years with a grace period of 6 months i.e. by 16.08.2015 which the opposite party has failed to do despite payment of Rs.1,79,60,139/- or nearly 95% as on 16.02.2012 by the complainant. The complainant had opted for the construction linked plan which included a loan @11.5% rate of interest from Indiabulls. As on 01.05.2017, the date of filing of this complaint, there is no occupancy certificate or offer of possession in respect of the said apartment. It is averred by the complainant that at the time when the Agreement was executed after booking of the apartment, the complainant had already paid Rs.1,79,60,139/- and he was therefore not in a position to contest the one sided agreement loaded in favour of the opposite party since it included a clause that 15% of the amount would be forfeited in case of cancellation as Earnest Money. Such a one-sided Agreement which was executed under compulsion is an example of unfair trade practice. It is also averred that though clause 21 of the Agreement promised construction in 42 months, the opposite party did not have a licence as on the date of accepting the booking which was not disclosed and was therefore constitutes an unfair trade practice. Despite the promised handover of the apartment in August 2015, there was no progress and several efforts were made by the complainants between September 2015 and December 2016 with the opposite party to expedite possession which were of no avail. He is therefore before us with the following prayer:—

(a) Direct the opposite parties to hand over possession of apartment to the complainants, complete in all respects and in conformity with the flat buyers agreement, with all additional facilities and as per quality standards promised and execute all necessary and required documents in respect of the said apartment in favour of the complainants within 8 months of this petition being filed before this Hon’ble Commission or as directed by this Commission;

(b) Direct the opposite parties for an immediate 100% refund of the total principal amount paid by the complainants, along with a penal interest of 18% per annum from the date of the receipt of the payments made to the opposite parties, in case the opposite parties cannot deliver or fails to deliver the absolute, complete and final possession of the flat within a period of 8 months of this petition being filed before this Hon’ble Commission or as directed by this Hon’ble Commission;

(c) Direct the opposite parties to pay interest @ 12% per annum on the amount deposited by the complainants with the opposite parties, with effect from August 2015, i.e., date when possession was promised, till the date of actual possession as per clause (i) above is handed over by the opposite parties along with all necessary documents and common area and facilities as promised during the initial booking made by the complainants;

(d) Direct the opposite parties to refund wrongfully charged taxes, which includes but not limited to service tax, and other charges along with the interest on that amount