DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (CENTRAL)
ISBT KASHMERE GATE DELHI
CC/292/2015
No. DF/ Central/
Shri Mukesh Chaudhary
S/o Shri Arvind Chaudhary
Resident of 34401 Dobson Way,
Fremont, CA, 94555 USA
(Through his father and General Attorney
Shri Arvind Chaudhary) .…..COMPLAINANT
VERSUS
M/s. AMR Infrastructures Ltd.
2425/11, AMR House,
Gurudwara Road, Opposite HDFC Bank,
Karol Bagh, New Delhi - 110005 …..OPPOSITE PARTY
Quorum: Ms. Rekha Rani, President
Ms. Manju Bala Sharma, Member
Mr. R.C. Meena, Member
ORDER
Rekha Rani, President
1. Shri Mukesh Chaudhary (in short the complainant) filed the instant complaint U/s 12 of the Consumer Protection Act 1986 as amended up to date (in short the Act) pleading therein that he purchased Space measuring 1,000 Sq. Ft. in IT/ ITes Complex in Tech Zone in Greater Noida, Uttar Pradesh, for a sum of Rs. 37,00,000.00/- (Rs. Thirty Seven Lac only). It is stated that OP was required to hand over possession on or before February 2009, but has failed to do so and also failed to pay assured return of Rs. 41,800/- per month since October 2012. Hence the instant complaint seeking direction to OP:
- “To hand over the possession of the vacant and peaceful possession of the above the office space i.e. IT/Ites Complex/ Office Space No. IT A -91, admeasuring 907.860 Sq. Ft. at Upper Ground Floor, Kessel – I, Valley, Greater Noida (U.P.) to the complainant.
- To pay the arrears of the committed amount of Rs. 15,04,8000.00/- (Rs.41,800.00/- x 36 months since October 2012) till the date of filing of the complaint which amount is due and outstanding against the respondent.
- To pay interest @ 18% p.a. on the arrears of the committed amount of Rs.15,04,800.00/- from the date of default till its payment, together with Notice charges of Rs. 5,500.00/-.
- To pay damages to the tune of Rs.3,00,000.00/- for the harassment and mental tension”.
During the pendency of the case complainant also filed an application seeking amendment in the complaint to the effect that he booked the space/unit in question for the purpose of earning livelihood. He has served various I.T. Companies and wanted to set up development and services centre for I.T. services in India.It is stated that due to his ignorance he could not plead these facts earlier in the complaint.The application is strongly opposed by OP.It is stated by OP that as per MOU between the parties dated 20.07.2007, complainant had authorized the developer to lease out his office space and has also received assured returns of Rs. 41,800/- per month.It is further stated that he purchased the said unit for the purpose of earning profits and therefore the complainant does not fall within the ambit of consumer.It is also stated that vide this application complainant is trying to improve his case because neither in his complaint nor in his affidavit he has stated that he purchased the office space for earning his livelihood.
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3. We have heard
4. As per Section 11 (i) of the Act the District Forum has pecuniary jurisdiction to adjudicate claims where the value of goods and services and the compensation claimed does not exceed Rs. 20 Lacs whereas in the present case the sale consideration alone is Rs. 37,00,000/- out of which complainant has already paid Rs. 34,67,991/-.
5. Three member bench of National Commission in Ambrish Kumar Shukla & Ors Vs Ferrous Infrastructure Pvt Ltd in CC No. 97/2016 vide order dated 07.10.2016 observed that value of goods & services and value of the relief claimed is to be seen for the purpose of pecuniary jurisdiction instead of value of alleged deficiency.
6. The same question again came up before National Commission in Rajkishore V/s TDI Infrastructure Ltd III (2017) CPJ 155. In that case total sale price of the property was above Rs. 20,00,000/- but complainant sought refund of Rs. 8,06,300/- charged in excess by the OP. Complaint was filed before State
Commission which was dismissed vide order dated 16.02.2016 on the issue of pecuniary jurisdiction with liberty to file fresh complaint before District Forum.
The complainants went in appeal contending that consumer dispute involved property whose value was above Rs. 20,00,000/-(Rs. Twenty Lacs only) National Commission allowed the appeal and following Ambrish Kumar Shukla
(supra) observed that even if there was a small deficiency in the service availed by the complainant the total value of the said service is taken into consideration for the purpose of determining pecuniary jurisdiction.
7. In another case titled Daimler Financial Services India Vs Laxmi Naryan Biswal in First Appeal no. 1616 of 2017 decided on 30.08.2017 by Hon’ble National Commission judgment in Ambrish Kumar Shukla(supra) was again referred and following relevant part of the said judgment was quoted:
“Reference order dated 11.8.2016 Issue No. (i) It is evident from a bare perusal of Sections 21, 17 and 11 of the Consumer Protection Act that it's the value of the goods or services and the compensation, if any, claimed which determines the pecuniary jurisdiction of the Consumer Forum. The Act does not envisage determination of the pecuniary jurisdiction based upon the cost of removing the deficiencies in the goods purchased or the services to be rendered to the consumer. Therefore, the cost of removing the defects or deficiencies in the goods or the services would have no bearing on the determination of the pecuniary jurisdiction. If the aggregate of the value of the goods purchased or the services hired or availed of by a consumer, when added to the compensation, if any, claimed in the complaint by him, exceeds Rs.1.00 Crore, it is this Commission alone which would have the pecuniary jurisdiction to entertain the complaint. For instance if a person purchases a machine for more than Rs.1.00 Crore, a manufacturing defect is found in the machine and the cost of removing the said defect is Rs.10.00 lakh, it is the aggregate of the sale consideration paid by the consumer for the machine and compensation, if any, claimed in the complaint which would determine the pecuniary jurisdiction of the Consumer Forum. Similarly, if for instance, a house is sold for more than Rs.1.00 Crore, certain defects are found in the house, and the cost of removing those defects is Rs.5.00 lakh, the complaint would have to be filed before this Commission, the value of the services itself being more than Rs.1.00 Crore.”
8. The facts of the case in Daimler Financial Services India (supra) were that the complainant had purchased two Hywa Trucks with the financial help of Daimler Financial Services India by taking loan of Rs. 23,55,945/- for each vehicle. Out of the total loan of Rs. 23,86,995/- for each vehicle , the complainant had already paid the entire loan amount and had agreed to pay the full and final settlement on 05.04.2016 by making payment of Rs. 14,70,000/- and had received the possession of the vehicle on the same day with further condition that the complainant should withdraw the writ petition bearing no. WP (C ) 2307 of 2016 from the High Court of Odisha. Prior to liquidation of loan / expiry of the agreement the Daimler Financial Services India had seized the vehicle for which the complainant had approached the High Court of Odisha by way of filing a Writ Petition. The High Court had issued notice and the Daimler Financial Services India after receiving the notice had called the complainant for a settlement. As per the said settlement the complainant had already paid a sum of Rs. 14,70,000/- towards full and final settlement outstanding in respect of both the vehicles. Though the complainant in pursuance to the aforesaid settlement had paid the entire amount towards liquidation of loan and had withdrawn the Writ Petition before the High Court of Odisha, the Daimler Financial Services India taking advantage of the situation had not issued NOC to the complainant. The complainant hence filed a Consumer Complaint before the Odisha State Consumer Disputes Redressal Commission, Cuttack for not granting NOC which was termed illegal deficiency in service and unfair trade practice and for directing Daimler Financial Services India to issue NOC in respect of the two vehicles. The State Commission admitted the consumer complaint which was challenged before the Hon’ble National Commission. The Hon’ble National Commission observed that:
“ Counsel for the appellant has admitted that the respondent/ complainant had taken loan of Rs. 47.74 Lakh, the cost of service and compensation asked for is Rs. 95,000/-. Hence the aggregate value of the cost of service hired or availed of and the compensation claimed by the complainant certainly falls within the pecuniary jurisdiction of the State Commission”.
9. In Jivitesh Nayal & Anr. vs M/S. Emaar Mgf Land Limited Case No. 34 of 2015 decided on 02-11-2017 and in Rakesh Mehta vs Emaar Mgf Land Limited Case No. 653 of 2015 decided on 16.10.2007 the National Commission following Ambrish Kumar Shukla (supra) observed as under:
“In terms of Section 21 of the Consumer Protection Act, this Commission possesses the requisite pecuniary jurisdiction to entertain a consumer complaint, where the value of the goods or services as the case may be, and the compensation, if any, claimed in the complaint, exceeds Rupees One Crore. As held by a Three-Members Bench of this Commission in CC No.97 of 2016 Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd., decided on 07.10.2016, the value of services in such cases, means the sale consideration agreed to be paid by the flat buyer to the builder. The following view was taken by this commission in CC/198/2015 Dushyant Kumar Gupta Vs Today Homes & Infrastructure Pvt. Ltd. and connected matters, decided on 31.01.2017.’’
10. In Reliance Consumer Finance Vs Randhir Singh First Appeal No. 431 of 2013 the Hon’ble SCDRC, Chandigarh vide order dated 24.12.2013 it was observed that it is settled principle of law, that the Consumer Fora, at any stage
of the proceedings, is duty bound to decide of its own, the legal questions as to whether the complainant within the definition of a Consumer; whether it had territorial and pecuniary jurisdiction to entertain and decide the complaint; whether the complaint involved the consumer dispute; and whether the consumer complaint was maintainable.
11. The sale consideration of the booked unit admittedly is Rs. 37,00,000/- which itself is beyond the pecuniary jurisdiction of this Forum. The complainant has further claimed arrears of assured return to the tune of Rs.15,04,800/- with interest 18% per annum form October, 2012 till payment which further enhances the subject value of the case. He has also sought compensation of Rs. 3,00,000/-. Since, this Forum lacks jurisdiction, it cannot adjudicate the objection raised by the OP that complainant is not a consumer as he purchased the said unit for the purpose of earning profits. This Forum further cannot adjudicate on the objection of OP that leasing the booked unit and earning assured return further take the complainant out of the definition of a ‘consumer’. The instant complaint be accordingly returned to the complainant to be presented before the appropriate forum having jurisdiction. Copy of the same be retained on record. Copy of this order be sent to the parties as statutorily required. File be consigned to record room.
Announced on this Day of _______ 2019.
