November 15, 2016 at 10:35 am #560
I had purchased a flat from a reputed builder in the city for 30 lakhs rupees. I had already made more than 90% payment of total value of the flat. However, there was already more than 2 years delay than the date promised before which the flat was supposed to be delivered to me and despite this the work has been done very little. Therefore, I filed the Complaint before the Consumer Court for refund of money with interest. However, the builder has filed the preliminary objection that there is arbitration clause in the agreement of allotment, hence my Complaint should be dismissed. I am fighting the case myself, can you please help me, whether my Complaint is maintainable or not?November 15, 2016 at 9:18 pm #561
If there is delay in giving possession, as per the judgment of NCDRC in the case of Thangavel Palanivel & Anr. v. M/s. DLF Southern Homes Pvt. Ltd, you can claim refund amount and you are not compelled to purchase the property.
So far as arbitration clause is concerned, section 3 of the Consumer Protection Act is very clear on this aspect – Consumer Protection Act is in addition to and not in derogation of any other law. Therefore your Complaint is maintainable. You can rely on the judgment of Apex Court in the case of Rosedale Developers Pvt Limited v. Aghore Bhattacharya and Others wherein the Supreme Court has held that “In view of the above stated legal position, the National Commission did not commit any error by holding that the remedy of arbitration available to the complainant does not bar the jurisdiction of the consumer forums and the consumer forums are not under an obligation to refer the matter to the Arbitral Tribunal.”
The Judgment is available at – Rosedale Developers Pvt Limited v. Aghore Bhattacharya and Others
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