ARVIND YADAV Vs. OMAXE AZORIM DEVELOPERS PVT. LTD.

JUDGEMENT

(1.) Arvind Yadav, the complainant herein being lured by the brochure and the advertisements given by the opposite party applied for allotment of a residential flat in the project "The Forest SPA-Faridabad" undertaken by the opposite party developer. Pursuant to the application, a letter of allotment of flat No.503, Barberry Block measuring 2520 sq. ft. was issued in favour of the complainant. As per the terms & conditions the complainant was supposed to make timely payment of the instalments and the opposite party was supposed to deliver the possession of the flat complete in all respects within 30 months from the date of signing of the allotment letter which period could be extended for six months. According to the complainant he has fulfilled his part of agreement and paid a sum of Rs.1,11,87,505.00 to the opposite party against the consideration amount of Rs.1,44,41,040.00. It is further the case of the complainant that there was some delay on the part of the complainant in making payment of the instalments but the delay was condoned by the opposite party on receipt of penal interest of Rs.6,88,168.00. It is alleged that although the stipulated time for delivery of possession has expired, the opposite party has failed to deliver the possession of the flat despite of several requests made by the complainant. Being aggrieved the complainant has filed the consumer complaint.

(2.) The opposite party on being served with the notice of the complaint has filed written statement. According to the opposite party the complainant is not a consumer as envisaged under Sec. 2 (1) (d) of the Consumer Protection Act, 1986 as he had booked the residential flat for commercial gains and not for using the same for residence. The opposite party also took the preliminary objection that as per clause 55 of the allotment letter the opposite party had agreed for resolution of the dispute, if any, by arbitration. Therefore, the jurisdiction of the Consumer Fora is ousted. It is also pleaded by the opposite party that the complaint is bad for misjoinder of parties as there is no company by the name M/s. Omaxe Azorim Developers Pvt. Ltd. and the name of the said company had been changed to M/s. Omaxe Forest Spa and Bills Developers Ltd. which fact was duly intimated to the complainant on 20.3.2014.

(3.) On merits it is pleaded that the complainant is a chronic defaulter and all the payments were made after the stipulated date of payment and some of the instalments were paid after a considerable delay of about 287 days, that too after series of reminders. Once the allotment was cancelled due to default but subsequently restored on the complainant's request on payment of the penal interest. It is alleged that the progress of the construction got delayed because of delay in payment by the complainant as well as other allottees and that there is no deficiency in service on the part of the opposite party.