DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

Consumer Complaint No.217 of 2016

                                             Date of institution:  20.04.2016                                         Date of decision   :  12.09.2018

Somesh Kapuria son of Shri Subhash Chander Kapuria, age 37 years, resident of House No.1964, Phase-5, SAS Nagar, Mohali.

…….Complainant

Versus

1.     The Managing Director, Bajwa Developers Limited, SCO No.17-18, Sunny Enclave, Desu Majra, District SAS Nagar, Mohali.

2.     The Manager (Sales), Bajwa Developers Limited, SCO No.17-18, Sunny Enclave, Desu Majra, District SAS Nagar, Mohali

                                                            ……..Opposite Parties

Complaint under Section 12 of

the Consumer Protection Act.

Quorum:   Shri G.K. Dhir, President,

                Shri Amrinder Singh Sidhu, Member.

                Mrs. Natasha Chopra, Member.

Present:    Shri Pankaj Maini, counsel for complainant.

                Shri Amit Sharma, counsel for OPs.

Order by :-  Shri G.K. Dhir, President.

Order

               As per case of complainant, he got booked 2 BHK flat BR No.932 having area of 900 sq. ft. approximately for personal needs. Total worth of the flat was Rs.25.00 lakhs. Agreement on 18/27.05.2011 was executed and thereafter complainant paid Rs.6,25,000/- on different dates. Final payment was to be made by customer on 27.11.2012, when delivery of the flat was to take place. As per the settled preposition and presumed business tactics, every builder receives final payment when possession to be handed over to the customer. Rs.3,25,000/-  were paid by complainant on 18.05.2011, but Rs.3,00,000/- on 20.05.2011. Different dates for delivery of possession were given to different customers. OPs got permission from GMADA on 19.05.2014 subject to getting approvals from other statutory bodies. Action of OPs in accepting the payment without having requisite permissions from the statutory authorities is an act of malice and of defrauding hapless customers. Time for handing over of possession was extended upto 30.09.2014. OPs were fully aware that they were not able to complete the project upto 27.11.2012 and even upto the extended date. OPs have sold the flat to complainant earmarked for EWS category by accepting the amount for allotment of general category flat. That conduct of OPs amount to unfair and restrictive trade practice. This complaint filed for seeking refund of the paid amount of Rs.6,25,000/- with interest @ 18% per annum, which is alleged to be approximately of amount of Rs.5,50,000/-. Compensation for punitive damages of Rs.2.00 lakhs and for causing mental agony and harassment of Rs.3,25,000/- more claimed. OPs have failed to disclose cogent reasons for not completing the project in time. Construction has not been started till date.

2.             In reply filed by OPs, it is claimed that this Forum has no jurisdiction because the matter pertains to transactions based on agreement of sale of flat for total sale consideration of Rs.25.00 lakhs. Complainant failed to deposit further installments as per agreement. In view of default committed by complainant in paying the installments, amount of Rs.6,25,000/- deposited as earnest amount liable to be forfeited in view of Clause-3 of agreement. Besides, in view of failure of complainant to adhere to the time plan, agreement has become void. No cause of action has accrued in favour of complainant. Complainant is well aware that approvals of the project are under process and the same will take time. Admittedly LOI from GMADA received on 19.05.2014. Complainant got the flat for speculative purposes so as to sell the same at premium as and when the same becomes available. Complaint alleged to be filed for abusing process of law. Moreover, complaint termed as frivolous and vexatious also. No date for handing over of possession was mentioned in the agreement.

3.             Complainant to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith documents Ex.C-1 and Ex.C-2 and then closed evidence.  On the other hand counsel for OPs tendered in evidence affidavit Ex.OP-1/1 of of Shri Baldev Singh Bajwa, Director of OPs and thereafter closed evidence.

4.             Written arguments on behalf of complainant submitted, but not by OPs. Oral arguments heard and records gone through.

5.             Perusal of complaint and the supporting affidavit as well as written arguments and contents of agreement Ex.C-1 establishes that complainant booked 2 BHK BR No.932 flat having area of 900 sq. ft. approximately for total sale consideration of Rs.25,00,200/-. So value of goods purchased or agreed to be purchased was Rs.20.00 lakhs. For determining pecuniary jurisdiction of the Forum, it is the value of the goods or services, as the case may be, and not the value of cost of removing the deficiency in service, which is to be considered. Interest amount has to be taken into consideration alongwith compensation, if any, claimed for determining the pecuniary jurisdiction of Consumer Forum, as per law laid down by Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case Ambrish Kumar Shukla & 21 Ors Vs. Ferrous Infrastructure Pvt. Ltd. 2016(4) CPR 83. That view reiterated again by Hon’ble National Consumer Disputes Redressal Commission, New Delhi in First Appeal No.1364 of 2017 titled as M/s. Omaxe Chandigarh Extension Developers Pvt. Ltd. & 2 others Vs. Lalitha Saini, decided on 21.08.2017. Rather in the later mentioned case of M/s. Omaxe Chandigarh Extension Developers Pvt. Ltd., it has been specifically pointed out that decision given by Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case Ambrish Kumar Shukla & 21 Ors (supra) has to be followed by all the Fora below and also by the Benches of Hon’ble National Commission untill different view happens to be of larger Bench. Specific reference to Para No.9 of case of M/s. Omaxe Chandigarh Extension Developers Pvt. Ltd., (ibid) can be made in this respect. In view of this legal position, there is no escape from the conclusion that as value of goods (2 BHK flat) in this case was Rs.25,00,200/- and as such this Forum has no pecuniary jurisdiction to decide this complaint. This Forum competent to decide cases where pecuniary limit of aggregate of sold goods or availed services is upto the extent of Rs.20.00 lakhs. Being so, complaint before this Forum is not maintainable. Whether or not point of pecuniary jurisdiction limit raised, is immaterial because this Forum bound to follow the law laid down by Hon’ble National Commission in above cited cases. Complaint is maintainable before Hon’ble Punjab State Consumer Disputes Redressal Commission only and as such this complaint deserves to be returned back to complainant with observations that he may present the complaint before appropriate Forum/Commission having pecuniary jurisdiction to deal with the complaint.

6.             As a sequel of above discussion, complaint returned for presentation before the appropriate Forum/Commission because this Forum has no pecuniary jurisdiction. Certified copies of the order be supplied to the parties as per rules.  File be indexed and consigned to record room.

Announced

September 12, 2018.

                                                                (G.K. Dhir)

                                                                President

                                                       (Amrinder Singh Sidhu)

Member

(Mrs. Natasha Chopra)

Member