The complainant had complained that the possession of the unit booked was not delivered within a maximum period of three years from the date of agreement. The Opposite parties had taken the plea that since there is an arbitration clause in the agreement, the matter should only be referred to arbitration and that the complainant was not a consumer
Where two different redressal agencies/Acts have jurisdiction to entertain the dispute, with regard to the same subject, the jurisdiction of the Consumer Fora would not be barred as held by National Commission in Abha Arora Vs. Puma Realtors Pvt. Ltd.
A larger Bench of the National Commission in a case titled as Aftab Singh v. Emaar MGF Land Limited & Anr., has held that, an Arbitration Clause in the 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.
In Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. Consumer , by the Honble National Consumer DisputesComplaint No.137 of 2010, decided on 12.02.2015 Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose.
The Opposite Parties cannot evade their liability, merely by saying that since the word endeavour/tentative/proposed was mentioned in the Agreement, for delivery of possession of the unit, as such, time is not to be considered as essence of the contract. Non-mentioning of exact date of delivery of possession of the unit(s) in the Buyer’s Agreement, is an unfair trade practice, on the part of the Builder. The builder is bound to mention the exact/specific date of delivery of possession of the unit(s) to the allottees/purchasers thereof.
The Opposite Parties failed to deliver actual physical possession of the unit within the stipulated period. The complainant is thus, entitled to get refund of amount deposited by her. The Opposite Parties are also under an obligation to compensate the complainant, for inflicting mental agony and causing physical harassment to her.
An amount of Rs. 40,82,394/-, was paid by the complainant, without getting anything, in lieu thereof. The said amount has been used by the Opposite Parties, for their own benefit. There is no dispute that, for making delayed payments, the Opposite Parties were charging heavy rate of interest for the period of delay in making payment of instalments. It was observed that the is law well settled that, whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. In view of above, the complainant is certainly entitled to get refund of the amount deposited by her, to the tune of Rs. 40,82,394, alongwith interest @10% p.a., from the date of transfer of the plot.