DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (CENTRAL)

                                                                                    ISBT KASHMERE GATE DELHI

CC/53/2017

No. DF/ Central/

Ms. Nasreen Khan W/o Sh. Maqsood Khan

R/o H.No. B – 201, Narwana Apartments

Plot No. 89, IP Extn., New Delhi- 110092

……..COMPLAINANT                                                                                          

Versus

1. M/s.Earth Iconic Infrastructures Pvt. Ltd.,

2.  Shri Naveen Goel

3.  Sh. Avdesh Goel

4.  Atul Gupta

5.  Rajnish Mittal

6.  Vikas Gupta

Having its Registered Office at 

26, Ist Floor, Pusa Road, Adjacent to Karol Bagh Metro Station,

New Delhi – 110005

(Through its Managing Director/ Director Principal Officer)

Also at :

B-100, 2^nd Floor, Naraina Industrial Area,

Phase -1, New Delhi - 28

(Managing Director/ Director /Principal Officer/

Authorized signatory of M/s. Earth Iconic Infrastructures Private Ltd.)

Also at

A-1, C & D Sector – 16,  Near Metro Station, Noida – 201301 (U.P.)                                                                                                                                                         ..…..OPPOSITE PARTIES

  Quorum:   Ms. Rekha Rani, President

                   Mrs. Manju Bala Sharma, Member

                    Shri R.S. Nagar, Member

                                                          ORDER                                  

Ms. Rekha Rani, President

1.     Instant complaint has been filed by Ms. Nasreen Khan  U/s 12 of the Consumer Protection Act 1986 as amended up to date (in short the Act)

pleading therein that she booked a studio apartment admeasuring 495 Sq. Feet. on 5^th Floor at TZ-06, Techzone, Greater Noida, U.P. in the project titled as  ‘’Earth Titanium Studios’’ of  Earth Iconic Infrastructure Pvt. Ltd., (in short OP).  Complainant has already paid Rs. 18,42,900/- towards sale consideration.  Vide MOU dated 31/08/2013 executed between the parties OPs promised payment of fixed assured return of Rs. 17,423/- per month to the complainant.   OPs have paid assured returns to the complainant up to March 2016.  Vide their letter dated 27/05/2016 OP acknowledged dues towards assured returns and offered to credit amount of Rs. 3,68,580/-  to finalize settlement of assured return issue.  As per the said letter amount of Rs. 3,68,580/- was to be added to the already paid amount of Rs. 18,42,900/- which comes to Rs. 22,11,480/-.   OPs offer of shifting of booking to another project of the Company shocked the complainant.   OPs are not completing the project to give possession of the apartment.  Hence the instant complaint seeking direction to OPs to refund amount of Rs. 18,42,900/- with interest @ 12% per annum and to further pay an amount of Rs. 17,423/- P.M. w.e.f. 1^st April, 2016 till the filing of the case and thereafter all subsequent months till payment is made. 

2.     OPs contested the claim vide their reply. 

3.     We have heard Shri MH Khan, Sh. Arun Sharma Advocates for complainant.

4.     In the written statement OPs have taken an objection that the claim in the instant complaint is beyond the pecuniary jurisdiction of this forum as per the calculation made in para 1 of the written statement.  Complainant herself in paras 12 and 13 and 14 of her complaint has pleaded that she had already paid Rs. 18,42,900/- to the OPs and on addition of Rs. 3,68,580/- as offered by the OPs vide their letter dated 27/05/2016 as dues towards assured returns the total amount comes to Rs. 22,11,480/- which is beyond the pecuniary jurisdiction of this Forum.  She has claimed refund of Rs. 18,42,900/- with interest at the rate of 12% per annum.  She has further prayed direction to OPs to pay her Rs. 17,423/- per month w.e.f. 1^st April 2016 till filing of the case and thereafter till actual payment is made along with litigation cost which again exceeds 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 exceed Rs. 20 Lacs.

6.     In Shivani Sharma Vs. TDI M/s. TDI Infrastructure Ltd., Complaint Case No. 464/2016 vide order dated  24/10/2017 our State Commission observed that compensation and interest have to be added to decide about pecuniary jurisdiction.  It held :

‘’Compensation is in any case to be added to the value of goods for determining pecuniary

jurisdiction as contemplated in the Act.  Interest cannot be ignored for the purpose, as apparently interest and compensation are the component of the same project.  Infact as per the law settled both interest and compensation can, be granted, depending on the facts of the case.  In the event the deficiency of service is established, sufferer in our view is entitled to both, interest for the delayed period and compensation for the harassment and mental agony caused to him due to alleged deficiency.  Their Lordship in the matter of Bangalore Development Authority vs. Syndicate Bank – AIR 2007 SC 2198 – has held.

‘’…..the complainant can be awarded the compensation in addition to the interest’’.   

 The Hon’ble NCDRC while disposing of the complaint case no. 213/2012 on 14.03.2016 in the matter of Vijay Kumar Arya vs. M/s. TDI Infrastructure Pvt. Ltd. passed following orders.

‘’In view of the above discussion the OP is directed to pay Rs. 38,20,000/- alongwith interest @12%

from the date of deposit by the complainant till the date of refund by the OP.  The OP is further directed to pay Rs. One Lakh as compensation.’’

7.   Our State Commission in Kusum Goenka & Anr. V. M/s. Winaxx Impex Pvt. Ltd., in CC No. 1636/2017 date of decision 31.10.2017 and National Commission in case of  Priti Arora v M/s. ARN Infrastructure India Pvt Ltd., in CC No. 246/2013 decided on 06.04.2017 held that any transaction having assured returns is a commercial transaction which is not covered u/s 2 (i) (d) of the Act. 

8.       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.

9.     In view of the Judgement in  Ambrish Kumar Shukla reiterated in Gurmukh Singh v/s Greater Mohali Area Development Revision Petition (supra) even though only refund of the amount paid is claimed,  it is the total sale consideration and value of relief claimed which is compensation and interest which determines the pecuniary jurisdiction.  As discussed above the same is beyond the pecuniary jurisdiction of this Forum.  Accordingly the instant complaint be 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 on this 05^th Day of November  2018.