Haryana

StateCommission

CC/88/2015

ASHOK KUMAR JAIN - Complainant(s)

Versus

DWARKADHIS PROJECTS PVT.LTD. - Opp.Party(s)

BY POST

06 Nov 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA.

 

                                                Complaint No.88 of 2015

                                                       Date of Institution: 28.05.2015                            Date of Decision: 06.11.2015

 

Ashok Kumar Jain, F-1303, Celebrity Homes, Palam Vihar, Gurgaon 122017.

…..Complainant

 

Versus

 

Dwarkadhis Projects Pvt. Ltd., Corp off: Suite # 17, Second Floor, Ninex City Mart, Sohna road, Gurgaon 122018.

          …..Opposite Party

 

CORAM:             Mr. R.K.Bishnoi, Judicial Member.

                   Mrs.Urvashi Agnihotri, Member.                                    

For the parties:  Mr.Amitabh Suri, Advocate counsel for the complainant.

 

O R D E R

 

R.K.BISHNOI, JUDICIAL MEMBER :-

It is alleged by the complainant that he was allotted a dwelling unit by the opposite parties (O.Ps.) on 18.12.2009 in lieu of another unit which was allotted to him previously.  He deposited Rs.27,84,404/- with the O.Ps. as detailed below:-

“S.No.	Date	Amount
1	15.12.2006, 17.12.2006	11,00,000.00
2.	13.04.2010, 19.04.2010	3,22,000.00
3.	15.05.2010 18.05.2010	96,000.00
4.	08.07.2010 10.07.2010	1,09,000.00
5.	04.09.2010 10.09.2010	1,09,000.00
6.	17.02.2011 19.02.2011	75,000.00
7.	07.07.2011 12.07.2011	1,38,721.00
8	25.09.2012 01.10.2012	2,06,000.00
9.	25.09.2012 01.10.2012	1,23,012.00
10.	03.12.2014 04.12.2014	5,05,676.00
	Total	27,84,404.00

The break-up of the above total figure is as under:-

S.No.	Particulars	Amount in Rs.
1	Basic cost of flat   Service tax	16,80,000/- 15,317/-
2	EDC	1,26,000/-
3	IDC   Service Tax	1,02,000/- 7416/-
4	Car Parking	75,000/-
5	IFMS	72,000/-
6	Power Back-up (2KVA)	60,000/-
7	Club Membership	50,000/-
8	PLC	48,000/-
9	Electricity connection (8KVA)	40,000/-
10	Water connection	3,000/-
11	Interest	5,05,661/-
	Total	27,84,404/-“

Even after collection 95% of the price and expiry of five years and five months the O.Ps. sent letter dated 27.04.2012 about offering of possession and demanding the amount as mentioned below:-

“S.No.	Particulars	Rate(Sq. ft.)	Amount
1	-05% Basic cost at the time of possession		84,000/-
2	EDC Charges (Tentative)	105	126,000/-
3	IDC Charges (already demanded).	35	42,000/-
4	Difference of Revised IDC	50	60,000/-
	-Service Tax on difference of ID C @ 12.36%	-	7,416/-
5	PLC Charges	40	48,000/-
6	Club Membership Charges		50,000/-
7	Car Parking		75,000/-
8	Extra Parking
9	Service Tax
	-95% of Demand Service Tax		12,721/-
	-05% service tax of basic costs at the time of possession		2596/-
10	Interest on delay payment(see note No.2)
11	IFMS	60	72,000/-
12	Electricity connection charges 8KVA	5000	40,000/-
13	Water connection charges		3,000/-
14	Total Backup Charges 2 KVA	30000	60,000/-
	Total		2,278,733/-
	Net received as on 27.04.2012		1,949,721/-
	Net amount due		3,29,012/-“

 

He objected about the demand and alleged that O.P. was not entitled for the interest to the tune of Rs.1,59,600/- and parking charges etc.  OP was in dominant position and the demand raised by him was arbitrary.  As suitable reply was not given, he approached Competition Commission of India (“CCI”) on 20.07.2012 wherein it was alleged that the charges mentioned at serial No.3 to 5, 7,10,12 to 14 were illegal and one sided, but, his  complaint  was not accepted by CCI.  During the pendency of the matter before Competition Appellate Tribunal (“CAT”) OP was directed to deliver possession, but, to no avail.  Ultimately CAT rejected his appeal on 16.04.2015.  So he has been forced to come to this commission and OP be directed not to recover the amount mentioned in letter dated 27.04.2012 and to pay interest @ 36% per annum on the amount received from him which is more than Rs.Twenty lacks. The total amount involved in this litigation is more than Rs.20/- lacs so this Commission is having jurisdiction to try the complaint. 

2.      Arguments heard.  File perused.

3.      As per facts this commission is not having pecuniary jurisdiction also to decide this matter.  The amount demanded from him is 3,29,012/-.  Even if normal interest i.e. @ 9%  is calculated on the amount deposited by him and added in this demand it approximately comes to Rs.8,10,275/- which is much less then the pecuniary jurisdiction.  The complainant has asked to pay interest @ 36% per annum, which is exorbitant. Hon’ble National Commission has ordered in so many cases that normally interest should be at the rate of 9%. On what basis he is claiming 36% is not where explained.  There is no agreement about payment of interest or compensation on delay in offering possession.  Plea  of complainant about dominant position of the builder/O.P. cannot be accepted because he has already exercised his option before CCI and his complaint was dismissed vide order dated 11.10.2012.  He preferred an appeal against that order before CAT and that was also dismissed vide order dated 12.01.2015. Through this complaint he wants adjudication qua decision of CAT also. When opinion about this fact has already come from the competent authority he cannot agitate the same before this Commission.  If he was aggrieved from that order then he should have gone to the proper forum against those orders. Value of flat cannot be taken into consideration for pecuniary jurisdiction as already discussed by this Commission in Complaint No.19 of 2014 titled as Vinita Goyal and another Vs.M/s Unitech Limited and another decided on 21.02.2014, wherein it was opined as under:-

 

“7.               The Act was enacted with a view to providing better protection to the consumers. As is apparent, the word consumer denotes a person who buys the goods or avails the services yet the Act includes within its ambit the user of goods or services as well. Section 2(d) of the Act defines the term ‘consumer’ which is set out as under:-

 

Section 2(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 or 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 and 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 payments, when such services are availed of with the approval of the first mentioned person but not include a person who avails of such services for any commercial purpose,.

8.                A plain reading of the aforesaid Section makes it clear that the consumer is a person who either buys the goods or avails or hires the services and also a person who is user of such goods or services but such use is made with the approval of the first mentioned person. Needless to say, goods or services for commercial purpose or for resale have been excluded from the purview of the Act. Now what emerges from the provision is that a person is consumer either of goods or of services.

9.                Further Section 17 of the Act deals with the jurisdiction of this Commission. For facilitation, the same is reproduced as under:-

17. Jurisdiction of the State Commission:-(1) Subject to the other provisions of this Act, the State Commission shall have jurisdiction-

 

 

1. to entertain-

1. complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees twenty lakhs but does not exceed rupees one crore; and
2. appeals against the orders of any District Forum within the State; and

(b)     to call for the records and passed appropriate orders in any consumer dispute which is pending before or has been decided by any District Forum within the State where it appears to the State Commission that such District Forum has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in excercise on its jurisdiction illegally or with material irregularity.

(2)     A complaint shall be instituted in a State Commission within the limits of whose jurisdiction-

(a)     the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain; or

(b)     any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such case either the permission of the State Commission is given or the opposite parties who do not reside or carry on business or have a branch office or personally work for gain, as the case may be, acquiesce in such institution; or

(c)     the cause of action , wholly or in part, arises.

10.              A plain reading of Section 17 of the Act suggests that there is a fair scheme in the Act with regard to hierarchy of the consumer forums established under the Act. In respect of the goods or services and the compensation, the value of which does not exceed rupees twenty lakhs, the complaint shall lie before the District Forum whereas where the value of such goods or services and the compensation exceeds rupees twenty lakhs but does not exceed rupees one crore, the complaint lies before the State Commission and where the value of the goods or services and compensation is exceeding rupees one crore, the complaint is maintainable before the National Commission. The legislators were conscious of the fact that the Act deals with either the defect of goods or deficiency in service. So, ordinarily, where the value of goods which are for self consumption and not for resale or commercial purpose, is less than rupees twenty lakhs, the legislators wanted to confer jurisdiction upon the District Forum at the first instance but where the value of such goods or services exceeds such limit, the alternative jurisdictions were conferred.

11.              Now, dealing with the question formulated above, that is, whether the complaint is maintainable before this Commission or it was required to be filed before the District Consumer Forum. At the threshold, the complainant has to demonstrate whether he has come up before this Commission complaining of defect in goods or deficiency in service. If the grievance pertains to defect of goods, then the value thereof plus compensation shall govern the jurisdiction but if it is with regard to deficiency in service, the complainant has to assess the deficiency in service availed by him.

12.              In the instant case, the complainants are complaining of deficiency in service rendered by the opposite parties but when the jurisdictional point is raised the complainants put forth the price of flat, that is, Rs.17,93,750/- for making out jurisdiction of this Commission. It is to be noticed that the sum of Rs.17,93,750/- is the price of flat. The flat does not fall within the definition of ‘goods’. Section 2(i) of the Act states that ‘goods’ means goods as defined in the Sale of Goods Act, 1930. Section 2(7) of the Sale of Goods Act, 1930 which defines ‘goods’ is reproduced as under:-

“goods” means every kind of movable property other than actionable claims and money; and includes stock and shares, growing crops, grass, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale;

13.              In view of above, the irresistible conclusion  is that the complainants have invoked the jurisdiction of this Commission by counting the price of flat as price of service. For assessing the value of service, the price of flat cannot be counted because the flat is an immoveable property. That apart, the complainants have failed to show how the value of services rendered by the opposite parties is more than rupees twenty lakhs.

14.              It is repeated experience of the redressal agencies that the litigants inflate and enhance their claim of compensation to suit the jurisdiction, which they may choose to avail. It is obviously the bounden duty of the redressal agencies themselves to scrutinize the reasonableness of the monetary claim raised by the complainant. It is well settled principle of law that the computation alone does not conclusively govern the pecuniary jurisdiction of the redressal agencies under the Act.

15.              The valuation of the relief claimed in the complaint is manifestly and grossly inflated and there is every reason to believe that it has been purposely done to enable the complaint to institute the case before the State Commission.

16.              As regards the compensation, the same is required to be assessed in reference to the loss and injury suffered by the complainant. The complainants have failed to show as to how the value of the service and compensation exceeds rupees twenty lakhs. “

5.      Taking into consideration every aspect, it is clear that the present complaint is not maintainable before this Commission.  Hence the same is hereby dismissed.

 

November 06th, 2015

Mr.Urvashi Agnihotri, Member, Addl.Bench

R.K.Bishnoi, Judicial Member Addl.Bench

S.K.