Haryana

StateCommission

CC/295/2016

HIRA LAL YADAV - Complainant(s)

Versus

AARCITY BUILDERS PVT.LTD. - Opp.Party(s)

ROSE GUPTA

28 May 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

         

                                     Consumer Complaint No.     295 of 2016

                                      Date of Institution                  29.09.2016

                                       Date of Decision                             28.05.2018

 

 

Hira Lal Yadav son of Sh. Ram Abhilash Yadav, resident of House No.121, New Jawahar Nagar, Raipur Road, Near Government Colony, Hisar-125001.

                                      Complainant

Versus

 

1.      M/s Aarcity Builders Private Limited, 301, Krishna Apra Business Square, Neta Ji Subhash Palace, District Center, Pitampura, New Delhi-110034 through its Director Mr. Rajender Parsad Mittal.

 

2.      Mr. Rajender Parsad Mittal, Director, Aarcity Builders Private Limited, Registered Office: 301, 3^rd Floor, Krishna Apra Business Square, Neta Ji Subhash Palace, District Center, Pitampura, New Delhi-110034 (Near Fun Cinema).

 

3.      Mr. Kushal Mittal, Director, Aarcity Builders Private Limited, Registered Office: 301, 3^rd Floor, Krishna Apra Business Square, Neta Ji Subhash Palace, District Center, Pitampura, New Delhi-110034 (Near Fun Cinema).

 

4.      Mr. Arun Mittal, Director, Aarcity Builders Private Limited, Registered Office: 301, 3^rd Floor, Krishna Apra Business Square, Neta Ji Subhash Palace, District Center, Pitampura, New Delhi-110034 (Near Fun Cinema).

 

5.      Mr. Ajay Rawat, General Manager, Aarcity Builders Private Limited, Registered Office: 301, 3^rd Floor, Krishna Apra Business Square, Neta Ji Subhash Palace, District Center, Pitampura, New Delhi-110034 (Near Fun Cinema).

 

6.      Mr. Amit Saini, Marketing Office, Aarcity Builders Private Limited, Regency Park, Sector 11A & 17, Hisar-125005.

 

7.      M/s Hisar Real Estate Private Limited, SCO 10, Sector 9 & 11, 1^st Floor of 7 days store, Delhi Road, Hisar-125005 through its Directors.

                                      Opposite Parties

 

 

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Shri Balbir Singh, Judicial Member.

                                                                                                             

 

Argued by: Shri Rakesh Sharma, Advocate for the complainant

                   Shri Vaibhav Jain, Advocate for the opposite parties No.1 to 6

                   (Service of opposite party No.7 dispensed with vide order dated May 30^th, 2017)

 

                                                   O R D E R

 

NAWAB SINGH J, (ORAL)

 

          Hira Lal Yadav-complainant, has filed the instant complaint under Section 17 of the Consumer Protection Act, 1986 (for short ‘the Act, 1986) with the averments that on 12^th September, 2011 he booked a flat with Aarcity Builders Private Limited-opposite parties No.1 to 6 (for short ‘Developer’). The total sale price of the flat was Rs.33,91,096/-. He was allotted Apartment No.1006, Tower-A, Floor 10^th, Regency Park, Sector 11A and 17, Hisar.  Flat Buyers Agreement dated November 29^th, 2012 (Exhibit C-1) was executed.  As per Clause 18 of the Buyers Agreement, the construction of the unit was to be completed within a period of 36 months from the date of execution of Buyer Agreement-cum-Allotment Letter with a further grace period of 90 days, that is, on or before February 27^th, 2016.  In all, he paid Rs.20,56,408/- to the Builder.  The developer did not complete the construction work. The complainant prayed that the developer be directed to refund the deposited amount, that is, Rs.20,56,408/- alongwith interest at the rate of 18% per annum; to pay Rs.10,00,000/- towards harassment; Rs.2,50,000/- litigation expenses and Rs.10,00,000/- towards escalation cost.

2.      The developer, in its written version, pleaded that the complainant is not “Consumer” within the meaning of Section 2(1)(d) of the Consumer Act, as the flat in question has been booked for the purpose of investment.  Clause 51 of the Buyer’s Agreement, 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.  The developer denied the averments of the complaint and pleaded that the complainant was defaulter in making the payment.    

3.      The complainant Hira Lal Yadav appeared as CW1 and produced following the documents:-

1.	Flat Buyer Agreement Cum Allotment Letter	Exhibit C-1
2.	Cheque of Rs.3,00,000/- dated 12.09.2011	Exhibit C-2
3.	Receipt dated 17.05.2012 regarding payment of Rs.3,00,000/-	Exhibit C-3
4.	Cheque dated 21.05.2012 of Rs.235914/- alongwith remittance of payment	Exhibit C-4
5.	Receipt of payment of Rs.2,35,914/-	Exhibit C-5
6.	Receipt of payment of Rs.5,37,730/-	Exhibit C-6
7.	Cheque dated 12.03.2013 of Rs.4,45,200/-	Exhibit C-7
8.	Receipt of payment of Rs.4,45,200/-	Exhibit C-8
9.	Receipt of payment of Rs.2,68,778/-	Exhibit C-9
10.	Receipt of payment of Rs.2,68,786/-	Exhibit C-10
11.	Letter dated 21.01.2016 sent by the Developer to the Complainant regarding payment of the outstanding amount	Exhibit C-11
12.	E-mails	Exhibit C-12
13.	Legal Notice dated 30.07.2016	Exhibit C-13
14.	Postal receipts	Exhibit C-14
15.	Reply to legal notice	Exhibit C-15

 

 

4.      The developer, examined Amit Saini-OPW-1 and produced the following documents:-

1.	Applicant ledger as on 05.08.2016	Exhibit OP-1
2.	Interest Ledger as on 20.08.2016	Exhibit OP-2
3.	Letter dated 21.01.2016 regarding payment of outstanding amount	Exhibit OP-3
4.	Letter dated 28.02.2017 regarding intimation for construction work	Exhibit OP-4
5.	Letter regarding MOM held on 21.03.2017 sent by developer to the complainant	Exhibit OP-5

 

5.      Learned counsel for the parties have been heard and record over the file has been perused.

6.      Unless there is evidence on record to show that the complainant had booked more than one flat for the purpose of trading, a bald assertion by the developer that flat had been bought for the purpose of making profits is not sufficient to hold that the transaction was for “commercial purpose.”  So, this plea of the developer is hereby repelled.

7.      The developer took another plea that the matter should be referred to the Arbitration per Clause 51 of the Buyer’s Agreement, dated November 29^th, 2012. 

8.      In Aftab Singh versus Emaar MGF Land Limited and another, Consumer Case No.701 of 2015, decided on July 13^th, 2017, Hon’ble National Consumer Disputes Redressal Commission, New Delhi held as under:

          “4. Consequently, we unhesitatingly reject the arguments on behalf of the Builder and hold that an Arbitration Clause in the afore-stated kind of Agreements between the Complainants and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act.”

 

          Hence, the aforesaid contention advanced by learned counsel for the developer is rejected.

9.      It is not disputed that the developer floated the project and they were bound to complete the construction work and to handover the possession of the flat within the stipulated period.  The developer was to handover the possession of the flat on or before February 27^th, 2016. Amit Saini-OPW1 in his cross-examination stated that the developer is not in a position to handover the possession of the flat to the complainant till September, 2018.  It is certainly a deficiency in service on the part of developer.  When the developer invited the applications and collected huge amount from the public, they cannot delay the allotment/possession of the flat. Thus, delay/breach, if any, was on the part of the developer.  The developer could not deny the refund of the deposited amount sought by the complainant.  The complainant has paid Rs.20,56,408/- to the developer. The developer is a commercial organization and used the amount for promotion of its business.

10.    In view of above, the complaint is allowed. Aarcity Builders Private Limited-Developer is directed to pay Rs.20,56,408/- (Rupees Twenty Lakh Fifty Six Thousand Four Hundred Eight Only) to the complainant, alongwith interest at the rate of 12% per annum from the date of its respective deposits till the date of realization; Rs.25,000/- as compensation for rendering deficient services and Rs.10,000/- towards litigation expenses. The entire amount be paid by the developer within a period of 45 days, from the date of receipt of the order, otherwise, it will carry interest at the rate of 18% per annum, till realization and it calls for pointed notice that under Section 27 of the Act, if the developer fails or omits to comply with this order, it shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to three years or with fine or with both.              

 

 

Announced 28.05.2018

(Balbir Singh) Judicial Member

(Nawab Singh) President

UK