KRISHAN RADHU Vs. THE EMMAR MGF CONSTRUCTION

JUDGEMENT

(1.) This suit was instituted by the plaintiff against the defendant company seeking a decree in the sum of Rs.1,07,65,250/- (Rupees One Crore Seven Lakhs Sixty Five Thousand two hundred and fifty only) as damages alongwith pendent lite and future interest at the rate of 10% from the date of filing of the suit till realization alongwith costs, pleading cause of action to have arisen mainly on the averment that the defendant had caused losses to the plaintiff by having failed to deliver timely possession of the two apartments (T-2-02-02 and T-2- 03-02) at Common Wealth Games Village constructed / developed by the said company on lands admeasuring 11 hectares at junction of roads adjacent to National Highway 24 and Akshardham Temple in terms of apartment buyers agreements executed by the parties on 16.03.2009.

(2.) According to the plaintiffs case, the possession of the said two apartments were to be handed over, as per the said two identically worded agreements, before the end of June 2011 and since there was a default in this regard till September 2012, the plaintiff had earlier instituted consumer complaint before the National Consumer Disputes Redressal Commission (NCDRC) under the provisions of Consumer Protection Act , 1986, after the filing of which the possession was delivered thereby satisfying the claim for relief of possession on 27.09.2012. The plaintiff pleads that upon it being pointed out that he was not "consumer" within the meaning of the expression used in the Consumer Protection Act , 1986 and resultantly NCDRC had no jurisdiction to adjudicate upon the consumer complaint preferred before it, the said matter having been withdrawn, the present suit was instituted seeking damages for the loss suffered consequent to the delay, the defendants having failed to give the necessary relief inspite of the demand by legal notice dated 24.10.2011.

(3.) Upon the summons of the suit and notice on the application filed therewith being served on 28.11.2014, in terms of the order dated 03.11.2014 of the Joint Registrar (Judicial), the defendant, instead of filing written statement, moved the application (IA 7709/2015) under Section 8 of the Arbitration and Conciliation Act , 1996, inter alia, stating that the two apartment buyers agreements on the basis of which the case had been brought contained arbitration clauses, in which view the suit deserved to be dismissed and the parties referred to arbitration. This application came up before the Joint Registrar (Judicial) on 21.04.2015 when it was submitted by the counsel for the defendant that the written statement had not been filed for the reason it would prejudice the application under Section 8 of the Arbitration and Conciliation Act , 1996. This plea was rejected by the Joint Registrar (Judicial) by order dated 21.04.2015 whereby the right of the defendant to file the written statement was closed for the reason the period of 90 days permitted for the purpose under the Code of Civil Procedure, 1908 (CPC) had lapsed. This decision of the Joint Registrar is under challenge by the defendant by chamber appeal (OA 210/2015).