• Deduction in refund amount

1. I booked a flat in Nov-2012 , builder made the one sided agreement in March-2012, i had to agree as made 25% advance payment already, 2.) Cancelled the flat in Sep-15 , on account of the slow construction and change in site plan without taking my consent , did not give the approach road from highway. 3.) builder refunded the amount after deducting amount around 1.5 lacs on account of commission to a dealer. till now dt. 10.10.2016 construction has not completed. 4) I filed a case in consumer forum praying  a). refund balance 1.5 lacs, alongwith 2.) interest from the time of the booking comes to around 17.5 lacs total refund amount 19 lacs  5) builder took the plea and asked to settle the case out of the consumer court as per the arbitration clause already there in agreement as per below . 

" in the event of any dispute between two,  the same shall be refereed to  the arbitration of a retired high court judge appointed by builder, the arbitration shall be under the provision of arbitration and reconcilation act"

As agreement is unilateral as per the appartment act and property act . But totally in favor of builder

My questions

1) Will i get the refund of deduction on account of commission
2.) what about interest part will i get it too
3.) Most important , Can builder force me through consumer forum to settle the case out of the court as per the agreement , Arbitration clause  as per above, since builder office too far from my place, moreover it will not be possible for me to fight the case at his place.
Asked in Property Law from SAS NAGAR, Punjab
Religion: Hindu
1) you are at Liberty to file complaint before consumer forum and seek refund of money paid by you with interest 

2) you cannot be forced to refer dispute to arbitration as consumer forum is an additional remedy 

3) contract is one sided andxin favour of builder . Consumer forum may refuse t permit builder 25 per cent deduction on cancellation of contract  act 
Ajay Sethi
Advocate, Mumbai
28548 Answers
1548 Consultations

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1. Your remedies before the civil court and consumer forum are closed due to the arbitration clause.

2. The builder is bound to refund the entire amount paid to him by the buyer if the cancellation is necessitated by the failure of builder to deliver the possession in a time bound manner. 

Ashish Davessar
Advocate, Jaipur
19896 Answers
520 Consultations

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1)the stand of builder is that it is mandatory to refer disputes to arbitration on account of amendment made to arbitration act 

2) it is well settled law that remedy before consumer forum is an aduitiinal remedy and consumer forum can entertain your complaint 
Ajay Sethi
Advocate, Mumbai
28548 Answers
1548 Consultations

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This means that when arbitration clause has been incorporated in the agreement the consumer forum cannot assume jurisdiction over the dispute in the first instance. However, the award of the arbitrator can be challenged in the civil court.
Ashish Davessar
Advocate, Jaipur
19896 Answers
520 Consultations

5.0 on 5.0

My questions

1) Will i get the refund of deduction on account of commission

If this commission payment was not part of the agreement then it cannot be deducted, you are supposed to get it back.



2.) what about interest part will i get it too

You claim the interest too, let the court decide about it. 





3.) Most important , Can builder force me through consumer forum to settle the case out of the court as per the agreement , Arbitration clause  as per above, since builder office too far from my place, moreover it will not be possible for me to fight the case at his place.

It is not necessary that you should settle it through an arbitrator only, you can approach consumer court which is not barred due to the presence of arbitration clause. 
T Kalaiselvan
Advocate, Vellore
18745 Answers
176 Consultations

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In application moved by builder in CF , he has quoted that " though the view has been taken by the Honble National commission that remedy under the consumer protection act being an additional remedy, the consumer forum possesses the requisite jurisdiction to proceed with the consumer complaint in accordance with the provision of the consumer protection act, however , in view of the amendment, the Legislature has stepped in and added the words notwithstanding any judgement , decree or order of the supreme court or any court by way of the arbitration and concilation (amendment ) act , 2015, so as to make it mandatory for a judicial authority to refer the parties to arbitration , despite the decisions given earlier.      

Can you please explain the above ,


He is trying to take an advantage of the amendment in the arbitration law whereas if correctly interpreted then there is no harm in approaching consumer forum bypassing the arbitration clause, 
T Kalaiselvan
Advocate, Vellore
18745 Answers
176 Consultations

5.0 on 5.0

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