DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (CENTRAL) ISBT KASHMERE GATE, DELHI – 110006
CC No. 172/2016
No. DF/Central Date:
Sandeep Bajpai
S/o Late S.N. Bajpai,
R/o Flat No. 3, Plot No. 121/123,
New Manglapuri, Mandi Goan Road,
Mehrauli, New Delhi - 110030
…… COMPLAINANT
VERSUS
1.Earth Iconic Infrastructure Pvt. Ltd., Through its Managing Director,
Registered Office : 26, 1st Floor, Pusa Road,
Karol Bagh Metro Station, Delhi - 110005
2. Wealth United Estate India Pvt. Ltd., Through its Managing Director,
Registered Office : D -1/125, Chitranjan Park, Kalkaji,
New Delhi – 110019
3. Earth Infrastructure Ltd., Through Managing Director
Registered Office : 26, 1st Floor, Pusa Road, Karol Bagh Metro Station,
Delhi – 110005
4. Mr. Vikas Gupta, Managing Director Earth Infrastructure Ltd.,
AND
Director Earth Iconic Infrastructure Pvt Ltd
5. Mr. Atul Gupta,
Managing Director Earth Infrastructure Ltd.
AND
Director Earth Iconic Infrastructure Pvt. Ltd.
6. Mr. Avdhesh Kumar Goel
Managing Director Earth Infrastructure Ltd.,
AND
Director Earth Iconic Infrastructure Pvt. Ltd.
7. Mr. Rajnish Mittal,
Managing Director, Earth Infrastructure Ltd.
AND
Director Earth Iconic Infrastructure Pvt. Ltd.,
All R/o :
26, 1st Floor, Pusa Road,
Karol Bagh, Metro Station,
Delhi – 110005
8. Ms. Geetu Chauchan,
Director Wealth Unlimited Estate India Pvt. Ltd.,
9. Mr. Baiju Kumar
Director Wealth Unlimited Estate India Pvt. Ltd.,
10. Mr. Vijay Chauhan,
CEO Wealth Unlimited Estate India Pvt. Ltd.,
11. Mr. Abhijeet Dubey
General Manager Wealth Unlimited Estate India Pvt. Ltd.
All R/o :
D – 1/25, Chitranjan Park, Kalkaji,
New Delhi - 1
…..OPPOSITE PARTIES
ORDER
Rekha Rani, President
1. The complainant Mr. Sandeep Bajpai has filed the instant complaint under section 12 of the Consumer Protection Act 1986 as amended (in short the Act) pleading therein the following submissions:
Earth Infrastructure Ltd., (OP 3) is a Real Estate Company and OP 1 and OP 2 are its sister concerns. OP 4 to OP 7 are the Managing Directors and OP 8 to 9 are the Directors and OP 10 is Chief Executive of OP 2 and OP 11 is General Manager of OP 2. OPs induced the complainant to book a plot in their ‘’Soft Launch Project in Earth Titanium Sez Tech Zone Plot, No. 6 located at Yamuna Expressway measuring 11,000 sq. yards to be developed by Earth
Group of Companies.’’
The complainant received an e-mail dated 09/10/2013 & 21/10/2013 Annexure – 4 from OP 2 and vide his e-mail dated 02/11/2013 complainant confirmed booking of the plot on the terms as under :
‘’... – A 5% discount on composite SP of Rs. 18000.00/sqm (inclusive of all charges ) for 1000m unit.
- Rs. 5,00,000.00 cheque along with booking application form during the
Soft launch so as to block the above rate and 10% of the total BSP to complete booking process during the launch.
- Plot to be earmarked and agreement to sale to be furnished at 33%
payment of the total BSP within 3 months of launch.
- Balance payment to be cleared as per the following :-
- 25% of SP within 18 months of launch.
- 30% of SP within 24 month of launch.
- Balance payment within 30-36 month of launch.’’
Pursuant to assurance of OPs complainant booked a 1000 sq. yrds commercial (IT/ITEZ) plot in ‘’Earth Titanium SEZ TECH ZONE PLOT NO. 6 located at Yamuna Expressway in Pre-Launch Scheme in March, 2014 and made payment of Rs. 15,00,000/- (Rupees Fifteen Lacs Only)’’.
After receiving the booking amount the OPs unilaterally changed the payment plan in April 2014 to 24 month’s time linked plan without asking the complainant whereas complainant was willing to make entire payment in 30 months period but OPs insisted that complainant should make payment within 24 months. They neither sent payment receipt nor any letter of allotment to the complainant. As such complainant cancelled the booking of the plot and asked for refund of his deposit vide his e-mail dated 02/04/2014. Till date they have not refunded the booking amount deposit of the complainant nor they have completed the project. As such they are guilty of deficiency in service which has caused pain and agony to the complainant. He served legal notice upon OPs on 04/11/2015 but his booking amount of Rs. 15 Lacs has not been refunded to him. He has prayed for direction to the OPs to refund his booking amount of Rs. 15 Lacs, Rs. 1 Lac as compensation for causing harassment and mental agony, Rs. 3 Lacs as compensation for loss of profit as he would have earned 20% profit if he had invested Rs. 15 Lacs elsewhere , all with 18% interest and Rs. 50,000/- as cost of litigation.
2. On receipt of notice written statement was filed on behalf of OP1 and OP3 to OP7 vide which it is pleaded that this forum has no jurisdiction to adjudicate the instant complaint as complainant had booked a commercial plot worth several crores of Rupees as is evident from the facts pleaded in para 28 of the complaint. It is also stated that he is not a consumer but a hard core investor who wanted to earn profits by entering into this kind of land deal irrespective of the fact that he had no money to purchase the same. It is also evident from the fact that initial cheque issued by him bearing no. 000001 drawn on HDFC Bank for an amount of Rs. 5,00,000/- was dishonoured due to insufficient funds and another cheque issued by the complainant bearing no. 4333910 drawn on SBI Bank for Rs. 7,50,000/- was also dishonoured due to insufficient funds and complainant miserably failed to make payment of even agreed booking amount of 10 % of BSP. It is also stated that he failed to make timely payment which was the essence of the booked plot.
3. We have heard Ms. Mukta Sharma learned counsel for the complainant and Sh. Tapan Kumar Jha advocate for OP and have perused the material available on record.
- . In para 10 page 4 of the complaint complainant himself has stated he booked 1000Sq. Yds. commercial plot in Earth Titanic Earth Titanium Sez Tech Zone Plot, No. 6 located at Yamuna Expressway and paid Rs 15,00,000/- to the OPs. Payment details are mentioned in para 7 of the complaint. He has himself placed on record Annexure 4 at page 22 with his complaint vide which OPs vide their e-mail dated 09.10.2013 intimated the complainant that plot of 1000 Sq. Mtr. was available @ Rs. 18,000/- per Sq. Mtr. which offer was accepted by the complainant vide his e-mail dated 02.11.2013 placed on record as Annexure 5 at page 24 with this complaint by the complainant. Complainant has further placed on record Annexure 7 at page 26 of his complaint vide which OPs vide their e-mail dated 10.01.2014 requested the complainant to pay booking amount of 10 % i.e. Rs. 18,00,000/-. In his legal notice dated 04.11.2014 addressed to the OPs placed on record by the complainant himself as Annexure 16 at page 49 it is stated by complainant himself that Basic Sale Price was Rs. 18,000/- per Sq. Mtr. and he had booked 1000 Sq. Mtr. commercial plot which rate is not rebutted by the OPs in their reply to the said legal notice dated 04.01.2016 in corresponding para 4. As such total cost of the commercial plot is beyond the pecuniary jurisdiction of this Forum which is limited to Rs. 20 Lacs.
5.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 exceeds Rs. 20 Lacs.
6. 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 sought is to be seen for the purpose of pecuniary jurisdiction instead of value of deficiency alleged .
7.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.
8.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.”
9. 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”.
10. Hon’ble Apex Court has repeatedly held that the question of jurisdiction can be raised at any stage of the proceedings as the court/tribunal/forum is bound to decide the same before proceeding to adjudicate the matter on merits as the issue of jurisdiction goes to the root of the matter and decision of the court/tribunal/forum without jurisdiction is a nullity which cannot be executed.
11. In Jagmittar Sain Bhagat (Dr.) v. Director, Health Services, Haryana & Ors., III (2013) CPJ 22 (SC) = Civil Appeal No. 5476 OF 2013 dated 11/07/2013,Hon’ble Apex Court observed:
“Indisputably, it is a settled legal proposition that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior Court, and if the Court passes a decree having no jurisdiction over the matter, it would amount to nullity as the matter goes to the roots of the cause. Such an issue can be raised at of the any stage proceedings. The finding of a Court or Tribunal becomes irrelevant and unenforceable/ inexecutable once the forum is found to have no jurisdiction. Similarly, if a Court/Tribunal inherently lacks jurisdiction, acquiescence of party equally should and perpetrate, defeating the legislative animation. The Court cannot derive jurisdiction apart from the Statute. In such eventuality the doctrine of waiver also does not apply. (Vide: United Commercial Bank Ltd. v. Their Workmen, AIR 1951 SC 230; Smt. Nai Bahu v. Lal Ramnarayan & Ors., AIR 1978 SC 22; Natraj Studios (P) Ltd. v. Navrang Studios & Anr., AIR 1981 SC 537; and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar & Ors., AIR 1999 SC 2213).
12. 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.
13.Learned counsel for OPs also submitted that having booked a commercial plot for commercial purpose the complainant is not a consumer. Since this Forum lacks pecuniary jurisdiction this issue cannot be agitated here. 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 this Day of January 2018.
