State Consumer Disputes Redressal Commission
Sudesh Behal vs Era Landmarks Ltd. on 11 January, 2018
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA Complaint No. 281 of 2016 Date of Institution: 22.09.2016 Date of Decision: 11.01.2018 Sudesh Behal son of late Shri R.K. Behal, aged about 58 years, resident of # C-9/9066, Vasant Kunj, New Delhi-110077. ....Complainant Versus 1. M/s Era Landmarks Limited (formerly known as Era Landmarks (I) Limited, having its site office at Sector 68, Sohna Road, Gurgaon, Haryana through its Managing Director. (Registered Office at 153, Okhla Industrial Estate, Phase III, New Delhi-110020 and Head Office at B-24, Sector 3, Noida, Uttar Pradesh) (At present known as Adel Landmarks Limited, Registered Office at B-39, Friends Colony (West), New Delhi-110065, part of ERA Group of Companies) 2. The Managing Director M/s Era Landmarks Limited (formerly known as Era Landmarks (I) Limited, having its site office at Sector 68, Sohna Road, Gurgaon, Haryana. (Registered Office at 153, Okhla Industrial Estate, Phase III, New Delhi-110020 and Head Office at B-24, Sector 3, Noida, Uttar Pradesh) (At present known as Adel Landmarks Limited, Registered Office at B-39, Friends Colony (West), New Delhi-110065, part of ERA Group of Companies). ....Opposite Parties CORAM: Hon'ble Mr. Justice Nawab Singh, President. Shri Balbir Singh, Judicial Member.
Shri Diwan Singh Chauhan, Member.
Argued by: Shri R.D. Gupta, Advocate for the complainant.
Shri Rajiv Sidhu, Advocate for the opposite parties.
O R D E R NAWAB SINGH, J. (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, 09th Floor, Tower D, Era SkyVille 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 17.05.2016. 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 & 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 crore 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 crore 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 following the documents:-
1.
Photographs of Claim made by the Builder Exhibits C-2 to C-26
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 01.12.2010 Exhibit C-29
5. Statement of Account dated 15.01.2011 and 07.03.2011 Exhibit C-30
6. Statement of Account dated 21.09.2011 Exhibit C-31
7. Receipt of payment dated 16.08.2013 Exhibit C-32
8. Receipt of payment dated 17.12.2013 Exhibit C-33
9. Receipt of payment dated 17.02.2014 Exhibit C-34
10. TDS Certificate dated 28.03.2014 Exhibit C-35
11. Receipt of payment dated 27.06.2014 Exhibit C-36
12. Demand Notice dated 16.07.2013 Exhibit C-37
13. Demand Notice dated 26.11.2013 Exhibit C-38
14. Letter dated 14.05.2015 written by Builder to the complainant expressing inability of timely construction/ possession Exhibit C-39
15. Photographs regarding construction update at site Exhibits C-40 to C-50
16. Letter dated 09.03.2013 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 17.05.2016 issued by the District Town Planner (HQ) for Director General of Town and Country Planning Haryana.
Exhibit C-52
18. Public notice dated 17.05.2016 Exhibit C-53
19. First Information Report No. 443 dated 26.09.2015 Exhibit C-54
4. The Developer, examined Sandeep Ravish-OPW1 and produced the following documents:-
1Licence No.177 of 2008 issued by Town and Country Planning Department Haryana Government Exhibit OP-1 2 Licence No.40 of 2009 issued by Town and Country Planning Department Haryana Government Exhibit OP-2 3 Independent Auditors' report on financial statements of M/s Rational Buildcon Private Limited Exhibit OP-3 4 Balance sheet as on March 31st, 2016 of Golden Glow Estates Private Limited Exhibit OP-4 5 Letter dated 13.07.2009 regarding issuance of No objection Certificate issued by Airports Authority of India Exhibit OP-5 6 Letter dated 25.06.2013 regarding clarification of applicability of forest laws on non forest land applied by M/s Golden Glow Estates Private Limited Exhibit OP-6 7 Letter dated 15.07.2013 sent by Directorate of Town and Country Planning, Haryana regarding approval of building plans Exhibit OP-7 8 Letter dated 21.10.2013 sent by Commissioner, Gurgaon to M/s Golden Glow Estate Private Limited Exhibit OP-8 9 Letter dated 01.07.2013 sent by Office of the Administrator, HUDA, Gurgaon to M/s Rational Buildcon Private Limited Exhibit OP-9 10 Online application dated 27.07.2017 regarding environmental clearances Exhibit OP-10 11 Application dated 20.10.2016 regarding renewal of licence No.40 of 2009 sent by Rational Buildcon Private Limited to Director General, Town and Country Planning Haryana Exhibit OP-11 12 Application dated 19.01.2017 regarding availing of relief policy for recovery of external development charges and infrastructure development charges sent by Rational Buildcon Private Limited to the Director General, Town and Country Planning Haryana Exhibit OP-12 13 Application dated 19.01.2017 regarding availing of relief policy for recovery of external development charges sent by Golden Glow Estate Private Limited to the Director General, Town and Country Planning Haryana Exhibit OP-13 14 Application dated 19.01.2017 regarding renewal of Licence No.177 of 2008 sent by Golden Glow Estate Private Limited to the Director General, Town and Country Planning Haryana Exhibit OP-14 15 Covering Letter dated 17.08.2017 alongwith Bank Guarantee issued by HDFC Bank to the Director General, Town and Country Planning Haryana Exhibit OP-15 16 Covering Letter dated 18.08.2017 alongwith Bank Guarantee issued by HDFC Bank to the Director General, Town and Country Planning Haryana Exhibit OP-16 17 Covering Letter dated 04.09.2017 alongwith Bank Guarantee issued by HDFC Bank to the Director General, Town and Country Planning Haryana Exhibit OP-17 18 Bank Guarantee issued by Union Bank of India to the Director General, Town and Country Planning Haryana alongwith covering letter dated 06.09.2017 Exhibit OP-18 19 Bank Guarantee issued by Union Bank of India to the Director General, Town and Country Planning Haryana alongwith covering letter dated 02.09.2017 Exhibit OP-19 20 Letter dated 13.06.2017 regarding submission of compliance sent by Golden Glow Estates Private Limited to Director General, Town and Country Planning Haryana Exhibit OP-20 21 Letter dated 13.06.2017 regarding submission of compliance sent by Rational Buildcon Private Limited to Director General, Town and Country Planning Haryana Exhibit OP-21 22 Letter dated 14.07.2017 regarding submission of compliance sent by Rational Buildcon Private Limited to Director General, Town and Country Planning Haryana Exhibit OP-22 23 Letter dated 24.07.2017 regarding information of renewal of license No.117 of 2008 sent by Directorate of Town and Country Planning, Haryana to Economics Offence Wing, Police Commission, Gurugram Exhibit OP-23 24 Letter No.32855 regarding renewal of license No.177 of 2008 Exhibit OP-24 25 Letter No.32846 regarding renewal of license No.40 of 2009 Exhibit OP-25
26.
Memorandum of Understanding dated October 24th, 2017 Exhibit OP-26
5. After hearing learned counsel for the parties, perusing the record over the file and the documents relied upon by the parties, the following questions arise for consideration:-
(i) Whether the complainant is consumer or not? (ii) Whether the present complaint is to be referred to Arbitration in view of Clause 19.1 of the Buyer's Agreement, dated November 17th, 2012? (iii) Whether the complainant is entitled to get refund of the deposited amount or not?
6. The first question, that falls for consideration is whether the complainant is consumer or not? Unless there is evidence on record to show that the complainant had booked more than one property/flat for the purpose of trading, a bald assertion by the Developer that apartment 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 next question is as to whether the matter is to be referred to the Arbitration per Clause 19.1 of the Buyer's Agreement, dated November 17th, 2012 or not?
8. In a recent judgment Aftab Singh versus Emaar MGF Land Limited and another, Consumer Case No.701 of 2015, decided on July 13th, 2017, Hon'ble National Consumer Disputes Redressal Commission, New Delhi held as under:
"4. Consequently, we unhesitatingly reject the arguments on behalf of the Developer and hold that an Arbitration Clause in the afore-stated kind of Agreements between the Complainants and the Developer 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. Admittedly the flat was purchased on 22nd November, 2010. The complainant paid Rs.44,56,318/- to the Developer. Clause 10.1 of the Flat Buyers Agreement (Exhibit C-27) reads as under:-
"10.1 It is understood and agreed between the parties that based on present plans and estimates and subject to all just exceptions, the Developer contemplates to give/offer possession of Unit to Allottee(s) within 36 months from the date of execution of the buyers agreement (with a grace period of 6 months). The said delivery date is subject to force majeure events or governmental action/inaction or due to failure of other activity of Allottee(s) deterrent to the progress of the Complex/Project/Residential Colony."
10. A reading of the aforesaid clause clearly shows that the Developer was to offer the possession of the flat to the complainant within a period of 42 months from the date of execution of agreement, that is, on or before 17th May, 2016. The Developer failed to do so.
11. Sandeep Ravish-OPW1 in his cross-examination admitted that still the Developer is not in a possession to hand over the possession of the flat to the complainant and the possession can be offered after 03/04 years. It is clearly made out that the Developer was at fault in non-performance of the services agreed. The Developer could not deny the refund of the deposited amount sought by the complainant. The complainant has paid Rs.44,56,318/- to the Developer. The Developer is a commercial organization and used the amount for promotion of its business.
12. In view of above, the complaint is allowed. Era Landmarks Limited-Developer is directed to pay Rs.44,56,318/- (Rupees Fourty Four Lacs Fifty Six Thousand Three Hundred Eighteen 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.11,000/- 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 11.01.2018 (Diwan Singh Chauhan) Member (Balbir Singh) Judicial Member (Nawab Singh) President U.K