DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (CENTRAL)
ISBT KASHMERE GATE DELHI
CC/33/2017
No. DF/ Central/
Rajib Kumar Bhattacharya
S/O Sh. Mukti Nath Bhattacharya
R/O Shiv Mandie Path, House No. 26
Opposite Director of Agriculture Office,
Khanapara, Guwahati, Assam-781022 ……..COMPLAINANT
VERSUS
M/S Earth Infrastructures Ltd.
(A Company Incorporated Under the
Provisions of Companies Act, 1956)
(Represented through its Managing Director)
Having one of its corporate office at:
26,1st Floor, Pusa Road,
New Delhi-110005 …..OPPOSITE PARTY
Quorum : Ms. Rekha Rani, President
Mrs. Manju Bala Sharma
ORDER
Rekha Rani, President
1. It is pleaded in Para 3, Page 2 of the complaint that complainant booked one flat measuring 995 sq. ft. in project of OP for total consideration amount of Rs.22,20,460/- which amount is more than Rs. 20,00,000/-.
2. OP in its written statement has taken an objection that this forum has no pecuniary jurisdiction to adjudicate the claim in view of judgment in Ambrish Shukla (supra).
3. We have heard Sh. A.K. Jha and Sh. S.N. Shukla learned counsel for the complainant.
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 exceeds 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 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. Learned counsel for complainant has relied on a judgment of National Commission in consumer case no. 687 of 2017 titled Abhishek Kumar & Anr. v/s Nitesh Urban Development Pvt. Ltd., wherein vide its letter dated 05.09.2017, National Commission observed:
“It is found that the judgment of Ambrish Kumar Shukla (supra) is silent on the issue of value of goods and services in cases where refund has been requested. Obviously, there is difference in the cases where parties want to go ahead and conclude the sale of goods and availment of services and where one party is only seeking the refund and thereby clearly deciding for non-execution of the agreement. The learned counsel for the Complainants has drew my attention to para 14 of the judgment of the larger Bench of this Commission in Ambrish Kumar Shukla (supra). This portion of the judgment has elucidated the point by giving example that if matter of dispute is regarding repair of the machine where the cost is less then Rupees one crore, but the machine has costed more than Rupees one Crore then the jurisdiction of the National Commission may be invoked. Clearly this is not the matter in the present case. In the cases of refund the value of goods or services has to be the value of the amount actually paid because the “payment promised” will never materialise. In the present case, amount deposited is Rs.3,00,000/- and compensation of Rs.3,00,000/- has been demanded. Thus, the total figure does not cross the limit of Rupees One Crore, which is necessary for this Commission to exercise its jurisdiction. Even if the interest is added to this amount, the total value of the complaint would not cross the figure of Rs. One Crore. In these circumstances, this Commission does not have pecuniary jurisdiction to decide the instant complaint case.”
In the said case of Abhishek Kumar, complainant booked flat for Rs.1,09,72,256/- whereas he paid Rs. 3,00,000/- as the booking amount. The complainant sought direction to the OP to handover the possession of the booked flat or in the alternative, refund of deposited amount i.e. Rs. 3,00,000/- with interest @ 18% per annum.
Learned counsel for complainant further referred to the judgment of National Commission in DeepakSharma v/s M/S Bptp Ltd. dated 24.04.2018 and Richa Sachdev & v/s M/S 1000 Trees Housing Pvt. Ltd. dated 25.06.2018 which are to the same effect.
A two member bench of the Hon’ble National Commission in RP 3496/2017 in Gurmukh Singh v/s Greater Mohali Area dated 09.02.2018 while hearing against order dated 11.10.2017 in appeal no. 464/17 of State Commission, Punjab held that it is the total value of goods and services not partial amount deposited by the allotee which will determine the pecuniary jurisdiction. Since, the total price of the booked unit was Rs. 37,00,000/-, it was observed that District Forum did not have pecuniary Jurisdiction to adjudicate the matter. In the said judgment, the two member bench had discussed the judgment of Ambrish Shukla.
10. The three judgments referred above and relied on by learned counsel for the complainant titled Abhishek Kumar, Deepak Sharma and Sicha Sachdev(supra) were delivered by single member bench of National Commission whereas Gurmukh Singh case(supra) was decided by two member bench of National Commission wherein Ambrish Shukla judgment was also discussed.
11. 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 2018.
