DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (CENTRAL)
ISBT KASHMERE GATE DELHI
CC/63/2017
No. DF/ Central/
Atul Bansal,
S/o Sh. Ramesh Bansal,
R/o H. No. 23, Ram Mandir Marg,
Kewal Park, Azadpur, Delhi-110033 …..COMPLAINANT
VERSUS
Earth Infrastructures Ltd.,
Through :- Managing Director/Director,
Regd. Off :-26, 1st Floor, Pusa Road, Opp. Karol Bagh,
Metro Station, Delhi-110005 …..OPPOSITE PARTY
Quorum : Ms. Rekha Rani, President
Mrs. Manju Bala Sharma, Member
Mr. R. S. Nagar, Member
ORDER
Rekha Rani, President
1. Instant complaint was filed by the complainant under Section 12 of the Consumer Protection Act, 1986 as amended alleging therein that he booked a flat in a project called EARTH TOWNE of Earth Infrastructure Ltd. (in short the OP) situated at plot no. GH-04, Sector-1, Greater Noida, U.P.in the year 2012 and paid a sum of Rs. 9,30,542/- as per their demand. OP had given an assurance that possession of the flat will be given within 18 months from the date of execution of the allotment letter. The complainant visited the project site in March 2012 and 2013 but there was no development or progress at the site. OP vide their letter dated 13.03.2015 cancelled booking of the flat. The complainant replied vide letter dated 28.04.2015 and demanded refund of his paid amount with interest @ 10% p.a. from the cancellation of the booked flat but OP has not done so. Complainant served legal notice on the OP vide letter dated 07.08.2015. Complainant has prayed for direction to OP to refund an amount of Rs. 9,30,542/- invested by the complainant in the project with interest @ 18% p.a., compensation of Rs. 1,00,000/- and litigation charges of Rs. 50,000/-.
2. OP contested the claim vide its reply. We have heard complainant in person. In written statement, OP has taken an objection that complainant is not a consumer but an investor. It is stated that he already owns a residential house and had submitted that booking of the unit in question was done for commercial purpose. It is further stated that complainant did not adhere to the payment schedule. He deposited only the initial booking amount. The payment schedule is stated in Para 3 of the written statement.
3. Payment schedule, as reproduced in Para 3 of the written statement of the OP is not disputed by the complainant in the rejoinder. It is stated in the payment schedule that an amount of Rs. 3,10,833/- , Rs. 3,12,394/-, Rs. 3,12,393/-, Rs. 6,10,922/-, Rs. 4,41,256/-, Rs. 3,12,394/-, Rs. 3,12,394/-, Rs. 3,12,394/-, Rs. 3,12,394/- and Rs. 4,54,724/- was agreed to be payable at the time of booking, within 45 days of booking, on the start of excavation work, on the start of basement slab, at the start of 1st floor roof casting, at the start of 3rd floor roof casting, at the start of 7th floor roof casting, at the start of 10th floor roof casting, at the start of 14th floor roof casting and at the start of 18th floor roof casting respectively. Complainant has placed on record a copy of the application form for booking the residential unit in Para 16 and 17 thereof it is stated that the complainant booked 1,295 sq. ft. @ Rs. 2,430/- which is Rs. 31,46,850/-. The same is beyond the pecuniary jurisdiction of this forum.
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.
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 Gurmukh Singh v/s Greater Mohali Area Development Revision Petition No. 3496/2017 against order dated 11.10.2017 in appeal no. 464/2017 of State Commission, Punjab. Complainant Gurmukh Singh applied for allotment of an apartment with Greater Mohali Area Development (OP). He deposited total amount of Rs. 11,10,000/- in January 2013. He requested OP for refund of the amount deposited by him on the ground that his financial position was not good. Complainant submitted in the consumer complaint that he received a partial refund of Rs. 5,96,091/- and in this way suffered loss of Rs.4,76,910/-. He filed consumer complainant in question seeking refund of the said amount along with another Rs. 1,00,000/- as cost of borrowing the funds. He sought direction to OP to pay him a sum of Rs. 5,67,910/- along with compensation of Rs. 2,00,000/- and litigation cost. District forum ordered return of the complaint following the decision of National Commission in Ambrish Kumar Shukla (Supra). State Commission dismissed the appeal. National Commission dismissed the revision petition observing that total value of goods and services is to be taken into consideration for determining the pecuniary jurisdiction of a forum and not the total amount paid by an allotte.
11. Since this forum lacks pecuniary jurisdiction to proceed with the matter complaint is ordered to be returned for presentation before appropriate Forum. Copy of this order be sent to the parties as statutorily required. File be consigned to record room.
Announced on this _____ Day of _____ 2018.
