ORDER
Rekha Rani, President
1. Ms. Neelam Sharam (in short the complainant) filed the instant complaint U/s 12 of the Consumer Protection Act 1986 as amended up to date (in short the Act) pleading therein that on 10/09/2012 she booked a flat admeasuring 995 sq. feet in ‘Earth Towne’ project of M/s. Earth Infrastructures Pvt., Ltd., (in
short the OP) and paid Rs. 3,00,000/- (Rupees Three Lakh only) vide chque no. 267385 as booking amount. She came to know from her friends that OP does
not have good customer satisfaction record and also have poor quality of construction. She accordingly requested the OP to cancel the booking of the flat and refund her amount. OP has failed to refund the amount to the complainant. She sent legal notice dated 13.08.2015 to claim refund of her amount. On failure of the OP to pay her amount she has filed the instant complaint seeking direction to OP to refund her amount of Rs. 3 Lacs with interest at the rate of 24% p.a. from 04/10/2013 till realization and Rs. 6 Lacs as compensation for causing harassment and mental agony, Rs. 5 Lacs for causing financial loss to the complainant along with litigation cost.
2. On receipt of notice of the complaint OP appeared and filed reply. It is stated that complainant has not complied with the terms of the booking application form duly singed by her and as such the relief sought in the complaint cannot be granted. It is stated that she had opted for construction linked payment plan and was accordingly liable to Pay 2,86,858/- i.e. 10% of the total sale price at the time of booking Rs. 2,86,858/- within 45 days of the booking and so on. It is stated that timely payment in terms of booking application form was the essence of the booking which complainant failed to pay and as such refund was subject to forfeiture under clause 9 of the booking application form.
3. We have heard Ms. Ritika Dhawan learned counsel for complainant.
None appeared for OP.
4. Booking application form is placed on record. It indicates that 2 BHK flat was booked by the complainant measuring 995 sq. feet at the basic sale price of Rs. 2883/- which comes to Rs. 28,68,585/-(Twenty Eight Lacs Sixty Eight Thousand Five Hundred Eighty Five) which is beyond the pecuniary jurisdiction of this Forum.
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. 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.
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. 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.’’
11. Since this forum lacks pecuniary jurisdiction to adjudicate the claim, the instant complaint be accordingly returned to the complainants 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 19th Day of May 2018.
