DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (CENTRAL)

                                        ISBT KASHMERE GATE DELHI

CC/149/2016

No. DF/ Central/

MRS. TANYA KHURANA

W/o Dr. Rishi Khurana,

R/o 7/123-124 , G. Floor,

Ramesh Nagar,

New Delhi-110015

                                                                                      …………..COMPLAINANT

VERSUS

EARTH INFRASTRUCTURE LTD

(through its manager/ GM/MD/CMD)

Regd. Office

26, Ist Floor, Pusa Road,

Adjacent Karol Bagh , Metro Station,

New Delhi-110005

                                                                                               …..OPPOSITE  PARTY

                                                              ORDER                                       

Rekha Rani, President

1. Mrs. Tanya Khurana (complainant) has filed  the instant complaint  U/s 12 of the Consumer Protection Act (in short the Act) against Earth Infrastructure Ltd (in short the OP) alleging therein that she  booked “one apartment”  measuring 1900 sq. ft. consisting of 3 BHK in project namely “ Earth Copia” “Ultimate Lifestyle”  at Sector 112, Gurgoan , Haryana and  deposited Rs. 6 Lacs as booking amount. On 14.08.2012 OP executed an Apartment – Buyer agreement confirming construction Linked Payment Plan and agreed to handover possession within 36 months. Considering the application dated 24.08.2012 SBI sanctioned loan of Rs. 67 Lacs vide sanction letter dated 16.10.2012 in favour of the complainant. Complainant has already paid  Rs. 25,41,510/- to OP prior to sanction of home loan amount of Rs. 67,00,000/-. The  OP has unduly delayed completion of construction and handing over possession which is an unfair trade practice and has caused huge financial loss to the complainant. OP has arbitrarily  demanded an amount of Rs. 10,52,294/- from the complainant which he is not liable to pay. Hence, the complaint seeking direction to  the OP to recall demand of an  amount of  Rs. 10,52,294/-  as indicated in their own account statement, Rs. 5 Lacs as compensation  on account of negligence, deficiency in service and harassment , Rs. 50,000/- as litigation cost.
2. Order of predecessor bench dated 25.07.2016 indicates that right of OP to file written statement was closed.
3. We have heard Mr. Bhupesh Kumar Chandna counsel for the complainant.
4. Copy of the Apartment Buyer’s agreement (Ex. C/C and Ex. C/D ) is placed on record. para 1.1 whereof indicates the Apartment details as under:

The total sale consideration of the booked unit is Rs. 8486830/- 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 exceeds 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 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.  Hon’ble Apex Court has repeatedly held that the question of jurisdiction can be raised at any stage of the proceedings as the court/tribunal/forum is bound to decide the same before proceeding to adjudicate the matter on merits as the issue of jurisdiction goes to the root of the matter and decision of the court/tribunal/forum without jurisdiction is a nullity which cannot be executed.
12. In Jagmittar Sain Bhagat (Dr.) v. Director, Health Services, Haryana & Ors., III (2013) CPJ 22 (SC) = Civil Appeal No. 5476 OF 2013 dated 11/07/2013,Hon’ble Apex Court observed:

“Indisputably, it is a settled legal proposition that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior Court, and if the Court passes a decree having no jurisdiction over the matter, it would amount to nullity as the matter goes to the roots of the cause. Such an issue can be raised at of the any stage proceedings. The finding of a Court or Tribunal becomes irrelevant and unenforceable/  inexecutable once the forum is found to have no jurisdiction. Similarly, if a Court/Tribunal inherently lacks jurisdiction, acquiescence of party equally should and perpetrate, defeating the legislative animation. The Court cannot derive jurisdiction apart from the Statute. In such eventuality the doctrine of waiver also does not apply. 

13.   Since this forum lacks pecuniary jurisdiction to adjudicate the claim  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 on this    17^th   Day  of February 2018.