1.      This complaint has been filed by Gaurav Parasrampuria &Anr., complainants against opposite parties, Bengal Unitech Universal Infrastructure Pvt. Ltd.&Anr.

2.      In short the complainants’ case is that he was allotted flat No.1103 measuring about 1574 Sq.ft. in the project “Harmony” in Uniworld city by the opposite parties vide allotment letter dated 15.02.2008.  The total consideration of the flat was Rs.50,94,903/-.   The agreement was signed on 29.02.2008 and an amount of Rs.4,47,574/- as earnest money was paid. Afterwords, Rs.43,73,540/- was paid in March, 2008 by four different cheques.  In total the amount paid was Rs.48,21,114/- which was 95% of the consideration for sale.  The possession was to be delivered on or before 31.3.2011. In August, 2014, it was told to the complainants that completion will take two more years.  The possession has not yet been given to the complainants.  Therefore, alleging deficiency in service on the part of the opposite parties, the complainants have filed this consumer complaint.

3.      The matter was first heard on the point of jurisdiction.  Learned counsel for the complainants stated that National Commission has the jurisdiction to try and entertain the complainants in light of the fact that the amount involved in dispute is Rs.1,27,78,914/- which more than Rupees One crore and same is well within the pecuniary jurisdiction of this Commission. The details of this amount are as under:

Particulars

4.      To support his contention, learned counsel drew our attention towards the case of SwaranTalwar & 2 Ors. Vs. Unitech Ltd., CC No.347 of 2014, decided on 14.08.2015 by this Commission wherein the learned counsel relied on the following portion of the judgment:-

“5.      The first question which arises for our consideration in these cases is as to whether this Commission possesses the requisite pecuniary jurisdiction to entertain these complaints. Section 11(1) of the Consumer Protection Act read with Section 21 of the Consumer Protection Act to the extent it is relevant provides that this Commission shall have jurisdiction to entertain complaints where the value of the goods or services and compensation if any claimed exceeds Rs.1,00,00,000/-. The contention of the learned counsel for the opposite party is that interest claimed by the complainants cannot be termed as compensation and if the interest component is excluded, the pecuniary value of the complaint does not exceed Rs.1,00,00,000/- except in one case. The learned counsel for the complainants on the other hand contended that the interest which they have claimed along with refund of the principal sum even if not so described specifically, is by way of compensation only, since the opposite party has been deficient in rendering services to the complainants by not delivering possession of the flats on or before the time agreed in this regard.

6.      In our view, the interest claimed by the flat buyers in such a case does not represent only the interest on the capital borrowed or contributed by them but also includes compensation on account of appreciation in the land value and increase in the cost of construction in the meanwhile. As noted by us in CC No.232 of 2014, Puneet Malhotra Vs. Parsvnath Developers Ltd. decided on 29-01-2015, there has been steep appreciation in the market value of the land and cost of construction of the residential flats in Greater Noida in last about 7-10 years and consequently the complainants cannot hope to get a comparable flat at the same price which the opposite party had agreed to charge from them. In fact it would be difficult to get a similar accommodation, even at the agreed price plus simple interest thereon at the rate of 18% per annum. Therefore, the payment of interest to the flat buyers in such a case is not only on account of loss of income by way of interest but also on account of loss of the opportunity which the complainants had to acquire a residential flat at a particular price.

7.      In Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65, the Hon’ble Supreme Court inter alia observed and held as under:

        “However, the power to and duty to award compensation does not mean that irrespective of facts of the case compensation can be awarded in all matters at a uniform rate of 18% per annum. As seen above what is being awarded is compensation i.e. a recompense for the loss or injury. It therefore necessarily has to be based on a finding of loss or injury and has to correlate with the amount of loss or injury. Thus the Forum or the Commission must determine that there has been deficiency in service and/or misfeasance in public office which has resulted in loss or injury. No hard and fast rule can be laid down, however a few examples would be where an allotment is made, price is received/paid but possession is not given within the period set out in the brochure.....

…Along with recompensing the loss the Commission/Forum may also compensate for harassment/injury both mental and physical. Similarly, compensation can be given if after allotment is made there has been cancellation of scheme without any justifiable cause.

That compensation cannot be uniform and can best of illustrated by considering cases where possession is being directed to be delivered and cases where only monies are directed to be returned. In cases where possession is being directed to be delivered the compensation for harassment will necessarily have to be less because in a way that party is being compensated by increase in the value of the property he is getting. But in cases where monies are being simply returned then the party is suffering a loss inasmuch as he had deposited the money in the hope of getting a flat/plot. He is being deprived of that flat/plot. He has been deprived of the benefit of escalation of the price of that flat/plot. Therefore the compensation in such cases would necessarily have to be higher.”        

8.  It would, thus, be seen that the Hon’ble Supreme Court recognized that the interest to the flat buyers in such cases is paid by way of compensation. Therefore, there is no reason why the interest claimed by the complainants or at least part of it should not be taken into consideration for the purpose of deciding the pecuniary jurisdiction of this Commission. If this is done, the aggregate amount claimed in each of the complaints exceeds Rs.1,00,00,000/- and, therefore, this Commission does possess the requisite pecuniary jurisdiction.”

5.      Learned counsel also mentioned that the Civil Appeal was also filed against the order passed by this Commission in the case of SwaranTalwar & 2 Ors. Vs. Unitech Ltd.(supra), which was dismissed by the Hon’ble Supreme Court vide their Order dated 11.12.2015. He thus contended that the principle laid down by this commission in the case of SwaranTalwar& 2 Ors. Vs. Unitech Ltd.(supra), has been upheld by the Hon’ble Supreme Court.

6.      The learned counsel also cited the following judgments in support of his contention that the interest claimed by the complainant on the amount deposited with the builder would be in the form of compensation and therefore, it will be included in deciding the value of the complaint under Section 21(a)(i) of the Consumer Protection Act, 1986.

i.        “Arun Datta & Anr. Vs. Unitech Ltd. &Anr., CC No.359 of 2015, decided on 06.04.2016 (NC)

ii.       A.K.Gupta  Vs. Unitech Limited, CC No.276 of 2014, decided on 01.04.2016. (NC)

iii.    Manoj Kumar Jha&Anr. Vs. M/s. Unitech Ltd., CC No.487 of 2014 decided on 18.01.2016. ( NC)”

7.      It has been argued that compensation would include interest and if the interest is added to the cost of the flat from the date of booking till 2016, @ 18%, it would definitely be more than Rs.1,00,00,000/-.

8.      We have carefully considered the arguments advanced by learned counsel for the complainants and have gone through the records. Section 21a(i) of the Consumer Protection Act 1986 ( in short the ‘Act’ ) reads as follows:-

“Jurisdiction of the National Commission.- Subject to the other provisions of this Act, the National Commission shall have jurisdiction-

(a)  to entertain-

     (i) complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees one crore.”

9.  The complainant is bound by the terms and conditions of the builder- buyer’s agreement.  As per this agreement, in case of delay in possession, there are certain charges @5 /- per sq.ft. per month that will be payable by the builder to the allottee.  As per Section 21 a (i) of the Act, the value of the goods or services along with compensation is to be considered for deciding the jurisdiction of the Consumer Forum.  We are of the view that value of goods/services should be considered in the context of Section 2(1)(d) of the Consumer Protection Act, 1986, defining the consumer, which reads as under:

   “(d)  consumer means any person who,-

1. buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid and partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

2. [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose]”

10.  From the above definition of the Consumer, it is clear that consideration could be either paid or promised or partly paid and partly promised or under any system of deferred payment.  Whatever be the method of the payment in the present case, the value of consideration remains at the level of Rs.50,94,903 /- only.  As the “value” is not separately defined in the Act, it may be seen in congruence with the definition of the “consumer” for all practical purposes.   Hence, we have no option but to take valuation on its face value i.e. the sale consideration, which is Rs.50,94,903/- in this case.  A compensation of Rs.30,00,000/- has been demanded by the complainant in the complaint, though the complainant has given no justification for such a high compensation.  Even if both these amounts are added, the amount does not exceed Rs.1,00,00,000/-.  It is another question as to what amount will be refundable by the opposite party to the complainant as per terms and conditions of the builder- buyer’s agreement.

11.     The learned counsel for the complainant has pressed to consider interest as compensation. In the judgement of Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65, which has been referred in the judgement of SwaranTalwar  & 2 Ors. Vs. Unitech Ltd. (supra) by this Commission cited by the complainant, the Hon’ble Supreme Court inter alia has observed that the power to and duty to award compensation does not mean that irrespective of facts of the case compensation can be awarded in all matters at a uniform rate of 18% per annum.  Even the National Commission, in the case of SwaranTalwar & 2 Ors. Vs. Unitech Ltd.(supra) has observed as follows:-

   “8.  It would, thus, be seen that the Hon’ble Supreme Court recognized that the interest to the flat buyers in such cases is paid by way of compensation. Therefore, there is no reason why the interest claimed by the complainants or at least part of it should not be taken into consideration for the purpose of deciding the pecuniary jurisdiction of this Commission.”

12.  We have thus to consider the period for which interest should be considered for this purpose. This issue has been considered by this Commission in Praveen Mehta Vs. Bengal Unitech Universal, CC No.1457 of 2015, decided on 29^th March, 2016 (NC), wherein the following has been observed:-

“13.   If we consider   interest as compensation, then we have to consider the period for which interest should be considered for this purpose. Obviously, no interest is payable till the promised date of possession. However, interest will start from the date the opposite party has defaulted and for valuation purposes, it can be considered for a period of two years within which the complaint may be filed, though the actual question of interest will be decided after the case is finally disposed of and it will depend on the facts and circumstances of each case. From this consideration also, the total amount does not exceed Rs.1 crore.”

13. In the present case, adding the interest even @18% p.a. for two years to the paid amount for the flat, which is Rs.48,21,114/- also does not make the value of the complaint beyond Rupees One Crore. There is no provision for awarding the quarterly interest and hence only the Simple Interest has to be considered.

14. There is also a prayer for reimbursement to the complainant of the rent for tenanted flat paid by the complainant for the period of delay, which has been calculated as Rs.11,60,000/-. It has been argued that this rent paid by the complainant should also be considered for deciding the valuation of the complaint. As per Section 21(a)(i) of the Act, for deciding the pecuniary jurisdiction, we have to only consider the value of the goods and services and compensation demanded.  The compensation has to be for the deficiency of service alleged in the present case is the non-delivery of possession of the flat in time.  The builder–buyers agreement provides a compensation of Rs.5/- sq. ft. per month for such delays.  Hence, in such situation, we are of the view that any other compensation than as agreed in the agreement, which may be incidental to the delay, cannot be awarded.   Many questions of facts would arise in such cases - such as, size of the accommodation taken on rent and its location etc.  An allottee may be living in own flat and may not require tenanted accommodation. Therefore, we are of the opinion that the rent paid by the complainant for his tenanted accommodation, cannot be considered for deciding the valuation of the complaint for the purpose of deciding the pecuniary jurisdiction.  

15.    Based on the above discussion, we are of the view that this Commission lacks jurisdiction to decide the present consumer complaint and the same stands dismissed for want of jurisdiction.  However, in the interest of justice liberty is granted to the complainant to seek his remedy in the appropriate form, which has jurisdiction to decide the complaint in question.