This complaint is filed by the Complainant u/S 12 of the Consumer Protection Act, 1986 alleging deficiency in service as well as unfair trade practice against  the OP as the OP did not bother to refund the amount as paid by the Complainant till filing of this complaint.

It is evident from the petition of complaint that the Complainant being intended to purchase one residential flat from the OP had approached and paid a part payment out of the total consideration price of the said flat. The Complainant paid a sum of Rs.1,09,87,907/- to the OP out of the total cost of the flat along with one car parking space for Rs.1,51,54,000/-.  Inspite of making payment of 70% of the total consideration amount the OP did not bother to deliver him the physical possession in the said flat along with execution of the sale deed subject to payment of the balance amount.. But the OP did not pay any heed to the earnest request of the Complainant and the Complainant decided to get refund of the paid amount from the OP.  The Complainant was told by the OP that in case of refund of the paid amount the OP is entitled to deduct 5% on the flat value and service tax and accordingly after deduction the balance amount was refunded by the OP by issuing a cheque, which was received by the Complainant under protest. According to the Complainant the OP has no legal right to deduct any amount in case of failure on its part to deliver possession in the flat along with sale deed and there is no provision for deduction in the terms and conditions of the agreement for sale . By filing this complaint the Complainant has prayed for direction upon the OP to refund the deducted amount of Rs.8,63,778/- to him along with compensation to the tune of Rs.5,00,000/- and Rs.30,000/- as litigation cost.

The OP has duly contested the petition of complaint by filing written version contending that the total flat value has exceeded the pecuniary jurisdiction of the Ld. Forum and hence the Ld. Forum has no authority to try with this complaint. According to the OP the complaint is liable to be dismissed on this score alone with exemplary cost.

Both parties have adduced evidence on affidavit. Both parties have also filed several documents in support of their respective contentions.

It is necessary to mention that this complaint was filed before the Ld. DCDRF, Barasat. At the stage of filing questionnaire this case record has been transferred to the Ld. Additional CDRF, Rajarhat (Newtown) after establishment of this Ld. Additional CDRF. As the address of the OP falls within the territorial jurisdiction of this Ld. Additional CDRF, in view of the order passed by the Hon’ble SCDRC this case record has been transferred.  The Hon’ble SCDRC was pleased to direct the parties to appear before this Ld. Additional CDRF (Ld. Commission as amended) on 24.01.2020. On 24.01.2020 both parties appeared through their respective Ld. Advocates. Inspite of specific order passed by the Hon’ble SCDRC the Complainant did not take any step to file questionnaire and prayed further date for filing the same. The prayer was allowed subject to payment of cost of Rs.300/-  payable to the Consume legal Aid Account. Next date was fixed on 18.02.2020 for filing questionnaire. On 18.02.2020 the Complainant sought for further date for filing questionnaire and the prayer was allowed subject to payment of cost of Rs.500/- payable to the Consumer Legal Aid Account. On 16.03.2020 none was present on behalf of the Complainant, the Ld. Counsel for the OP was present. No questionnaire was forthcoming from the end of the Complainant and for this reason this Ld. Commission was pleased to close the evidence part and fixed the date on 01.04.2020 for hearing argument. But due to Lockdown declared by the Government of India on account of severe out breaking of Corona Virus this case record could not be placed before the Ld. Bench of this ld. Commission. Accordingly on 14.09.2020 this case record is placed for hearing argument. On the said date also none was present on behalf of the Complainant. In the Interest of Natural Justice further scope was given for hearing argument on 05.10.2020. This Ld. Commission was pleased to direct the office to intimate the Complainant.  But on 05.10.2020 also neither the Complainant nor his Ld. Advocate was present to advance argument. But the Ld. Counsel for the OP was present who had advanced his argument only on the point of the pecuniary jurisdiction of this complaint. It is argued by the Ld. Counsel for the OP that the total value of the flat as booked by the Complainant exceeds the pecuniary jurisdiction of this Ld. Commission and as the present complaint was filed u/S 12 of the Consumer Protection Act, 1986, it should be adjudicated upon in accordance with the Old Act, 1986.

We have carefully perused the record, documents as available and heard argument advanced from the Ld. Counsel for the OP. We have also carefully gone through the content of the complaint and evidence as adduced by the Complainant.  At the very outsell it is seen by us that the total cost of the flat which the Complainant was intended to purchase is for Rs.1,51,54,000/-. In the prayer portion the Complainant has also sought for compensation to the tune of Rs.5,00,000/- payable by the OP due to mental pain, agony and unnecessary harassment for a prolonged period.  Therefore if the compensation amount will not be added with the total consideration of the flat then also it will go beyond the pecuniary jurisdiction of this Ld. Commission as this complaint was filed under the Consumer Protection Act, 198 and hence it should be tried in view of the said Act, not under the amended Consumer Protection Act, 2019.

In view of the  judgment passed by the Hon’ble Larger Bench of the NCDRC passed in the case of  AMBRISH KUMAR SHUKLA & 21 Others Vs. FERROUS INFRASTRUCTURE Private Limited, dated 07 Oct 2016, wherein it is mentioned that the order dated 11.08.2016, passed in First Appeal No. 166 of 2016, First Appeal No. 504 of 2016 and First Appeal No. 505 of 2016, the following issues were referred, by a single Member Bench of this Commission to the larger Bench:

(i) In a situation, where the possession of a housing unit has already been delivered to the complainants and may be, sale deeds etc. also executed, but some deficiencies are pointed out in the construction/ development of the property, whether the pecuniary jurisdiction is to be determined, taking the value of such property as a whole, OR the extent of deficiency alleged is to be considered for the purpose of determining such pecuniary jurisdiction.

(ii) ……………………………………

(iii)…………………………………… etc.

The Hon’ble Commission has been held that ‘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 envisaged 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 lacs, 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 lacs, the complaint would have to be filed before this Commission, the value of the services itself being more than Rs.1.00 crore.

Having regard to the abovementioned judgment we are of the view that as the total cost of the flat in question has crossed the pecuniary jurisdiction of this Ld. Forum (Commission as amended), hence the complaint is not maintainable before this Ld. Commission being barred by its pecuniary jurisdiction. But the Complainant is at liberty to approach before the appropriate Forum/Court/Commission, if not barred otherwise, in view of the judgment of Laxmi Engineering Works vs. PSG Industrial Institute (1995 AIR 1428).

Hence, the complaint being no-RBT/CC/20/2020 is hereby dismissed without any cost being barred by pecuniary jurisdiction of this Ld. Commission. Considering the facts and circumstances of this complaint there is order as to cost.

Let plain copy of this judgment be given to the parties free of cost in view of the Consumer protection Regulation.

Dictated and corrected by

Hon’ble Mrs. Silpi Majumder