Complaint filed on: 23.02.2017 Disposed on: 04.01.2018 BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU 1ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU ? 560 027 CC.No.292/2017 DATED THIS THE 4TH JANUARY OF 2018 PRESENT SRI.S.L.PATIL, PRESIDENT SRI.D.SURESH, MEMBER SMT.N.R.ROOPA, MEMBER Complainant/s: - Sri. H.Sharathkumar Aged about 63 years, Sri.Sawan Salian, aged about 27 years, Both R/at at ?Srihari?, no.26, 9th main, Venkatappa layout, Hosakerehalli, Banashankari 3rd stage, Bengaluru-85. By Adv.Sri.Ranjan Shetty V/s Opposite party/s Respondent/s:- The Chief Executive Officer, M/s. Sanchaya Land & Estates Pvt. Ltd., Registered office no.479, HMT layout, near R.T.Nagar bus depot, Bengaluru-32. By Adv.Sri.G.M.Balakrishna PRESIDENT: SRI.S.L.PATIL This complaint is filed by the Complainant no.1 & 2 against the Opposite party (herein after referred as Op) seeking issuance of direction to refund the plot booking amount of Rs.6,96,782/- along with interest at 18% p.a & to pay the compensation of Rs.50,000/- for mental agony. 2. The brief facts of the case of the Complainant are that the Op had introduced a housing scheme i.e. development of residential Apartment complex under the name ?Sky View? in survey numbers 412, 416/1 & 416/2 of Devanhalli village, Kasaba hobali, Devanahalli Tq, Bengaluru rural Dist., during 2014 and published and advertised the housing scheme in various mode to the general public thereby offered them to purchase the residential apartment. It is the case of the Complainant that, the Op has promised that the residential apartment complex will be provided with all the basic amenities like tar roads, street lights, underground draining, jogging track, children?s play ground, parks, round the clock security etc., By believing the offer of the Op, the Complainants booked a 2 bedroom apartment no.606 in 6th floor, measuring 82.49 sq.mtr. with covered car parking at Jupiter block, A tower in the proposed residential complex. The Complainant further submits that the Op had executed sale agreement as well as construction agreement with the Complainants on 28.11.14. Op had allotted the said Complainants apartment vide allotment letter dtd.28.10.14. The Complainants further submits that they have already paid Rs.6,96,782/- in four instalments as detailed below: (1) By cheque no.493907/22.06.14 Rs.2 lakhs (2) By cheque no.493909/25.06.14 Rs.1 lakh (3) By cheque no.493911/17.09.14 Rs.3,21,782/- (4) By cheque no.972201/17.06.16 Rs.75,000/- The Op had duly acknowledged the receipt of above detailed payments by issuing receipt no.s.99, 160, 769 & 1837 in favour of the Complainants. In terms the construction agreement executed by the Op in favour of the Complainants on 28.11.14, the Op is supposed to hand over the possession of the fully completed apartment to the Complainants on or before March 2016. The Complainants further submits that on visit to the construction site they have found that construction even up to 2nd floor is not yet completed out of proposed 10 floors. New paper advertisement released on 07.08.16 by the Op reveals that construction even up to 20% is not yet completed. In view of these facts they have repeatedly requested the Op orally and in writing to refund the advance payment of Rs.6,96,782/- paid by them and also to cancel their booking. So far the Op has failed to respond to their request. Having no other alternative the Complainants got the legal notice issued on 05.12.16 to the Op calling upon him to refund Rs.6,96,782/- with interest at the rate of 10% from 22.06.14 up to date. The Op failed to receive the legal notice and also failed to refund the apartment booking amount till date. The Complainants further submits that the Op after collecting the apartment booking amount from the Complainants has failed to complete the project and handover the completed flat to the Complainants and also failed to refund the booking amount after the Complainants cancelled the booking. The said acts of the Op clearly amounts to deficiency of service on his part. Hence this complaint. 3. On receipt of the notice, Op did appear before this forum through their counsel, but did not file the version to deny the contents of the complaint. 4. To substantiate the case, Complainant no.1 filed his filed affidavit evidence and got marked the documents Ex-A1 to A12. Though Op did appear through their counsel neither filed the version nor filed affidavit evidence to deny the claim of the Complainant. The Complainant filed written arguments. Heard the learned counsel for the complainant. 5. The points that arise for our consideration are: Whether complaint filed by the Complainants is maintainable in view of the arbitration clause incorporated under the agreement between the Complainants and Op ? Whether is there any deficiency of service on the part of Op, if so, whether the Complainants entitled for the relief sought for ? What order ? 6. Our answers to the above points are as under: Point no.1: In the Affirmative. Point no.2: In the Affirmative. Point no.3: As per the final order for the following REASONS 7. Point no.1: During the course of arguments, the learned counsel for the Complainant draw our attention to the contents of the Ex-A3 which is original copy of the sale agreement, wherein specific clause has been incorporated (clause no. 23) in respect of the referring the matter to arbitration in the event of any dispute arise between the parties. Referring to the said clause of arbitration, the learned counsel for the Complainant submits that, the complaint filed by the Complainant is maintainable by virtue of Sec.3 of CP Act, as the said provision of the CP Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. In this context, he placed reliance on the decision of the Hon?ble National Commission in consumer case no.701/2015 in the case of Aftab Singh and Ors. Vs Emaar MGF land ltd., & Ors., decided on 13.07.17, wherein the arbitration clause under the agreement like in the present case on hand has specifically discussed and come to the conclusion at para 55 & 56 reads thus: 55. In view of the afore-going discussion, we arrive at the following conclusions: (i) the disputes which are to be adjudicated and governed by statutory enactments, established for specific public purpose to sub-serve a particular public policy are not arbitrable; (ii) there are vast domains of the legal universe that are non-arbitrable and kept at a distance from private dispute resolution; (iii) the subject amendment was meant for a completely different purpose, leaving status quo ante unaltered and subsequently reaffirmed and restated by the Hon?ble supreme court; (iv) Section 2(3) of the Arbitration Act recognizes schemes under other legislations that make disputes non-arbitrable and (iv) in light of the overall architecture of the Consumer Act and court evolved jurisprudence, amended sub-section (1) of Sec 8 cannot be construed as a mandate to the consumer forums, constituted under the Act, to refer the parties to arbitration in terms of the arbitration agreement. 56: 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 Complainant and the builder cannot circumscribe the jurisdiction of a consumer for a, notwithstanding the amendments made to Sec.8 of the Arbitration Act. 8. In the light of the decision cited supra, we find there is considerable force in the arguments advanced by the learned counsel for the Complainant. Hence, we are of the opinion that the complaint filed by the Complainant is maintainable, though there was an arbitration clause in the said agreement. Accordingly we answered the point no.1 in the affirmative. 9. Point no.2: We have already stated the brief facts of the case of the Complainant. Though the Op did appear through his counsel, did not filed the version. When the Op did not deny the contents of the complaint, contents of the affidavit evidence filed in support of the claim and also the contents of the text of written arguments, we are of the opinion that the Op is not interested to prosecute the case as against the Complainant. The Complainant have already paid an amount of Rs.6,96,782/- in the four instalments as we have already stated in para 2 of this order. The payment of the above said amount by way of cheques is supported by the receipts issued by Op marked as Ex-A5 to A8. In respect of delayed project is concerned, the Complainant sent email for the cancellation of the booking under Ex-A10 for which there was no any response by the Op. Thereafter, the Complainant also issued the legal notice to Op through their counsel dtd.05.12.16 marked as Ex-A11. Even though the notice served on Op, he did not respond to it. Having no other go, the Complainants have filed this instant complaint for seeking the relief as prayed for. 10. The Complainant has already produced the sale agreement as well as the construction agreement which are marked as Ex-A2 & A3 respectively. It is an undisputed proposition of law that ordinarily the parties are bound by the terms & conditions of the contract voluntarily agreed by them and it is not for consumer forum or even a court to revise the said terms. However, a term of contract, in our view will not be final and bound if it is shown that the consent to the said term was not really voluntarily but was given under a sort of compulsion on account of the person giving consent being left with no other choice or if the said term amounts to an unfair trade practice. In the instant case under the sale agreement as well as the construction agreement, some of the clauses incorporated are mainly beneficial to the Op. As per the terms of the construction agreement marked as Ex-A3, the possession ought to have been handed over before March 2016, but even 2nd floor was not yet completed out of proposed 10 floors. When the Op are unable in completing the project well within the time, the Complainant have no other go to ask for the refund of the money paid as they being aggrieved parties. Under such circumstances we are of the opinion that the claim of the refund is justifiable. 11. Now, the question that crops up for our consideration is, what is the interest to be levied on the amount paid by the Complainants. In this context, we place reliance on the decision rendered by Hon?ble National Commission in the consumer case no.347/2014 in the case of Swaran Talwar & Ors Vs. M/s.Unitech Ltd., decided on 14.08.15, wherein at para 10 it is held that: 10. In K.A.Nagmani Vs.Housing Commissioner, Karnataka housing board, CA no.6730-6731 of 2012 decided on 19.09.12, the Complainant who was awarded interest by this Commission at the rate of 12% p.a. on the refund amount, felt aggrieved and approached the Hon?ble Supreme court for grant of a higher interest. Despite the respondent in the above referred matter being a statutory body unlike the Op which is a private builder, the Hon?ble Supreme court, relying upon its earlier decision in Ghaziabad development authority Vs Balbir singh (supra) and noticing that the Complainant was suffering a loss in as much as she had deposited the money in the hope of getting a flat but was being deprived to get the flat and thereby deprived of the benefit of escalation of the price of the flat held, that the compensation would necessarily be higher. The Hon?ble Supreme court, therefore, granted interest to the Complainant at the rate of 18% p.a. from the date of deposit till the date of realization along with further compensation quantified at Rs.15,000/- for deficiency of service and Rs.20,000/- towards the cost of litigation. 12. In the light of the decision cited supra, we direct the Op to refund an amount of Rs.6,96,782/- paid to him by the Complainants along with compensation in the form of simple interest on that amount at the rate of 18% p.a. from the date of deposit till the date of payment. The cost of litigation is fixed to Rs.5,000/- and the said amounts shall be paid within six weeks from the date of this order. Accordingly the point no.2 is answered in the affirmative. 13. Point no.2: In view of our findings on point no.1 & 2, we passed the following: ORDER The complaint filed by the Complainant is hereby allowed. 2. Op is directed to refund an amount of Rs.6,96,782/- along with compensation in the form of simple interest on that amount at the rate of 18% p.a. from the date of deposit till the date of payment. The cost of litigation is Rs.5,000/-. The said amounts shall be paid within six weeks from the date of this order. Supply free copy of this order to both the parties. (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 4th January of 2018). (SURESH.D) MEMBER (ROOPA.N.R) MEMBER (S.L.PATIL) PRESIDENT 1. Witness examined on behalf of the complainant/s by way of affidavit: Sri.H.Sharathkumar, who being the complainant no.1 was examined. Copies of Documents produced on behalf of Complainant/s: Ex-A1 Advertisement of Op Ex-A2 Sale agreement dtd.28.11.14 Ex-A3 Construction agreement dtd.28.11.14 Ex-A4 Flat allotment letter dtd.28.10.14 Ex-A5 to A8 Receipts Ex-A9 News paper advertisement dtd.07.08.16 Ex-A10 Booking cancellation through email dtd.26.10.16 Ex-A11 Legal notice dtd.05.12.16 Ex-A12 Postal refusal acknowledgement (SURESH.D) MEMBER (ROOPA.N.R) MEMBER (S.L.PATIL) PRESIDENT