DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (CENTRAL)
ISBT KASHMERE GATE DELHI
CC/329/2015
No. DF/ Central/
DERIK FRANCIS
Late Sh. R.A. Francis,
Old No. D – 14, New No. D – 11,
Gali No. 1, East Vinod Nagar,
New Delhi - 110091
…..COMPLAINANT
Versus
M/s. EARTH INFRASTRUCTURE LIMITED
26, 1st Floor, Pusa road, Adjacent to Karol Bagh,
New Delhi – 110005
Through its Director/ Managing Director
…..OPPOSITE PARTY
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 Derik Francis (in short the complainant) U/s 12 of the Consumer Protection Act 1986 as amended up to date (in short the Act) inter alia pleading therein that he booked a unit in project called ‘‘Earth Titanium Studios’’ of Earth Infrastructure Ltd., (in short OP) situated at Techzone, Greater Noida, Gautam Budh Nagr, Uttar Pradesh. OP promised that it
would give possession of the developed unit within 20 months from the date of
booking. Complainant has paid Rs. 1,88,100/- towards booking of the unit.
Complainant came to know in July 2013 that OP has not even started the project but was asking further payment. As such complainant was compelled to cancel his booking and request the OP to refund the amount of Rs. 1,88,100/- with interest at the rate of 18% from 31/07/2012 till date of payment vide his letter dated 08/06/2015. The instant complaint is filed seeking direction to the OP to refund amount of Rs. 1,88,100/-, Rs. 1,12,795/- as interest @ 18% per annum from the date of booking till the date of filing of this complaint, and future interest at the rate 18% from the date of filing of the complaint till payment, Rs. 3,00,000/- as compensation and Rs. 25,000/- as cost of litigation.
2. On receipt of notice of the instant complaint OP appeared and contested the claim vide its reply. It is stated that complainant booked a studio apartment and opted for construction linked payment plan. He was asked to make payment vide letter dated 01/07/2013. He was further intimated to make payment of Rs.15% of BSP so as to complete 25% BSP as per construction linked payment plan but the complainant failed to make the requisite payment therefore OP sent a cancellation letter dated 17/10/2013. It is further stated that the complaint is barred by limitation as the cancellation letter was served on the complainant on 17/10/2013 but the present complaint was filed on 23/11/2015.
3. On 14/09/2018 learned counsel for the complaint made a statement that the total consideration of the apartment in question, which was booked by the
complainant, is Rs. 18,50,000/-. He further stated that the complainant is claiming interest at the rate of 18% and compensation of Rs. 3 Lacs.
4. We have heard Shri Piyush Ranjan and Shri Ishu Kanwal Advocates for complainant.
5. Total purchase price of the booked unit is Rs. 18,50,000/-. The complainant
deposited Rs.1,88,100/- with OP vide three cheques dated 31/07/2012, 04/08/2012 and 30/08/2012. Complainant has claimed interest at the rate of 18% per annum. Even if interest at the rate of 9% is calculated on the deposited amount w.e.f. the date of deposit it is more than Rs. 1 Lac. Complainant has also claimed compensation of Rs. 3 lac. Total amount thus would be beyond the pecuniary jurisdiction of this Forum. 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. 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.
8. 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 16th Day of Nov. 2018.
