This consumer complaint has been filed by the complainant Parkash Kaur against the opposite party Everest Construction Company alleging deficiency in service on the part of the opposite party.

2.      Brief facts of the complaint are that the complainant booked a flat with the opposite party in the year 1981 by paying 5% of the total consideration amount which was Rs.2,32,875/-. The agreement was signed between the parties on 13.10.1981.The complainant then paid Rs.50,000 to the opposite party on 28.12.1987, however, the same was returned by the opposite party vide letter dated 28.01.1988 by challenging the validity of the agreement itself. The complainant then filed a civil suit being suit No.82/1989 before the Hon’ble High Court of Delhi seeking relief of declaration inter-alia that the agreement dated 13.10.1981 be declared as operative and binding on the parties. On 15.04.1991, the Hon’ble High Court restrained the respondent from completing the sale or transferring or alienating the flat in question. Delhi High Court transferred the case to Tis Hazari District Court in Delhi on account of increase in pecuniary jurisdiction. As late as in the year 2019, the Civil Court dismissed the civil suit on 16.11.2019 as non-maintainable on the ground that the complainant had not prayed for possession/specific performance of the agreement and had simply sought declaration. Now the complainant is availing the jurisdiction of this Commission. The following prayers have been made in the complaint.

 “(a)  direct Respondent, its partners, agents, assignees and transferees to deliver to the Complainant vacant and peaceful possession of the Apartment/Flat of the carpet area 1035 sq.ft. (Carpet area) in the building to be constructed on Final Plot bearing No.1074 of Town Planning Scheme IV, Mahim and Cadestral Survey No.1104 [Part] of Lower Parel Division situate at Prabhadevi, Bombay;

(b)  in the alternative, pay an amount of Rs.4.43 Crores being the value of the Flat as per the government published Ready Reckoner price;

(c) in the alternative to prayer (a) & (b), grant the market value of the Flat as on the date of filing of the complaint/passing of the order to enable the Complainant to purchase the Flat of equivalent area in the nearby vicinity;

(d) pass any other order or direction that may be deemed fit and proper under the facts and circumstances of the case;”

3.      Heard the learned counsel for the complainant at the admission stage. The learned counsel stated that this Commission has got the pecuniary jurisdiction to consider the present complaint as the present value of the flat would have been more than Rs.4.00 crores which is clear from the complaint where it has been mentioned that the value of the flat as per circle rate of the government is Rs.4.43 crores.  It has also been mentioned that the opposite party in its reply filed in 2008 before the civil court has admitted that the value of the flat is more than Rs.2.00 crores and therefore, it is certain that the value of the flat is definitely more than Rs.1.00 crore which is sufficient to avail the jurisdiction of this Commission. The learned counsel also argued that compensation demanded is to be considered along with the value of the service to avail the jurisdiction of a particular consumer forum. In the present case, the compensation is in the form of the increased value of the flat as per the market value or as per the government circle rate and therefore if value of the flat is considered as compensation, then this Commission definitely has the pecuniary jurisdiction to entertain the present complaint. The learned counsel referred to the judgment of the Hon’ble Supreme Court in Ghaziabad Development Authority versus Balbir Singh, (2004) 5 SCC 65 to impress that compensation for a person who does not get possession is more as compared to a person who gets the possession. The learned counsel referred to the following observation of the Hon’ble Supreme Court in this case:-

 “9.  That compensation cannot be uniform and can best be illustrated by considering cases where possession is being directed to be delivered and cases where only monies are directed to be returned. In cases where possession is being directed to be delivered the compensation for harassment will necessarily have to be less because in a way that party is being compensated by increase in the value of the property he is getting. But in cases where monies are being simply returned then the party is suffering a loss inasmuch as he had deposited the money in the hope of getting a flat/plot. He is being deprived of that flat/plot. He has been deprived of the benefit of escalation of the price of that flat/plot. Therefore the compensation in such cases would necessarily have to be higher.  Further if the construction is not of good quality or not complete, the compensation would be the cost of putting it in good shape or completing it along with some compensation for harassment.  Similarly, if at the time of giving possession a higher price or other amounts are collected unjustifiably and without there being any provision for the same the direction would be to refund it with a reasonable rate of interest.  If possession is refused or not given because the consumer has refused to pay the amount, then on the finding that the demand was unjustified the consumer can be compensated for harassment and a direction to deliver possession can be given.  If a party who has paid the amount is told by the authority that they are not in a position to ascertain whether he has paid the amount and that party is made to run from pillar to post in order to show that he has paid the amount, there would be deficiency of service for which compensation for harassment must be awarded depending on the extent of harassment.  Similarly, if after delivery of possession, the sale deeds or title deeds are not executed without any justifiable reasons, the compensation would depend on the amount of harassment suffered.  We clarify that the above are mere examples.  They are not exhaustive.  The above shows that compensation cannot be the same in all cases irrespective of the type of loss or injury suffered by the consumer. ”        

4.      It was further argued by the learned counsel that if the prices have increased during the pendency of the case for a long time, the complainant may be asked to pay some more reasonable amount which should still be less than the current price. In support of his argument , the learned counsel relied on the judgment of the Hon’ble Supreme Court in Nirmala Anand Vs. Advent Corporation (P) Ltd. and Others, (2002) 8 SCC 146.

5.      Coming to the issue of limitation, the learned counsel has stated that neither the booking amount has been refunded to the complainant by the opposite party, nor the possession of the flat has been given by the opposite party, therefore, the cause of action continues till filing of the complaint. It was further argued that the time taken by the complainant in pursuing the wrong remedy before the Civil Court is to be excluded under section 14 of the Limitation Act. In this regard, the learned counsel relied on the judgment of this Commission in Aneja Construction (I) Ltd. Vs. National Insurance Co. Ltd. and Ors., FA No.812 of 2013, decided on 25.06.2018.

6.      Coming to the merits of the case, the learned counsel stated that the deficiency on the part of the opposite party is clear as they did not accept the amount of Rs.50,000/- paid by the complainant towards the cost of the flat and the opposite party wrongly questioned the validity of the agreement. The learned counsel also informed that ultimately, the opposite party got the building demolished through the Municipal Corporation for taking up a new project as the building had become dangerous to the public because of its weak construction. He states that the complainant would still be entitled to get a flat in the new building as her booking amount is still with the opposite party and the opposite party had agreed for the same in its reply in the civil suit.

7.      We have carefully considered the arguments of the learned counsel for the complainant and have examined the material on record. It is a peculiar case where the complainant has pursued a civil suit for about 30 years and when the civil suit has been dismissed on account of non-maintainability of the suit, the complainant is exploring the remedy under the Consumer Protection Act 1986 by filing the present consumer complaint. Because the cause of action arose in the year 1988 and the present complaint has been filed in the year 2020, the issue of limitation also becomes important. However, we will first deal with the issue of pecuniary jurisdiction as that is central to the admission of the present complaint by this Commission. The issue of pecuniary jurisdiction has been critically examined by the larger bench of this Commission in Ambrish Kumar Shukla and Ors. versus Ferrous Infrastructure Pvt. Ltd., Consumer Case No.97 of 2016, decided on 07.10.2016 wherein it has been decided that the value of the goods or services as per the agreement along with the compensation demanded will decide the pecuniary jurisdiction. In fact, the other kinds of valuation of the goods or services have not found favour with this Commission as would be clear from the following observation of this Commission in the aforesaid judgment.:-

“Issue No. (iii)

Conflicting orders have been passed by the Benches of this Commission as to cut off date for determining the value of the goods or the services, as the case may be, in terms of Section 21, 17 and 11 of the Consumer Protection Act.  One view is that the value of the goods or services means the consideration agreed to be paid by the consumer for the goods purchased or the services hired and availed of, whereas the other view is that the value of the goods or services as the case may be, for the purpose of determining the pecuniary jurisdiction of the Consumer Forum should be the market value of the goods or services on the date of institution of the consumer complaint.  Though, the use of the word “value” in the above referred Sections, tends to suggest that it is the market price of the goods or the services, as the case may be, which when added to the amount of compensation, if any, claimed in the complaint, should determine the pecuniary jurisdiction of the Consumer Forum, on a deeper consideration we are of the view that it is the price of the goods or the services as the case may be agreed to be paid by the consumer which would be relevant for the purpose of determining the pecuniary jurisdiction.  If the market price of the goods or the services as the case may be, on the date of institution of the complaint is to determine the pecuniary jurisdiction, the market price being dynamic and ever fluctuating, this would create an unending uncertainty with respect to the Consumer Forum before which the complaint is to be instituted.  For instance, if there are 10 flat buyers in the same project, identical consideration is agreed to be paid by them to the service provider, one of them decides to approach the Consumer Forum at a time when the prevailing market value of the flat is more than Rs.1.00 crore, the complaint will have to be instituted before this Commission.  If the prevailing market value of the flat at the time when another flat buyer who agreed to pay the same consideration to the service provider decides to approach the Consumer Forum is less than Rs.1.00 crore, he will have to approach the concerned State Commission.  Therefore, there will be two separate Forums dealing with the complaints of these two consumers who agreed to pay same price for the flat purchased by them.  In one case, the order passed in the consumer complaint would be challenged before the Hon’ble Supreme Court whereas in the other case, it would be challenged before this Commission.  Creating such an anomalous situation, in our view, could not have been the legislative intent.

Moreover, if the pecuniary jurisdiction of the Consumer Forum varies with the market price of the goods or services at the time the complaint is instituted; there is a likelihood of the valuation given by the complainant, being seriously challenged by the opposite party.  If this happens, the Consumer Forum will first have to determine the market price of the goods or services as the case may be, at the time of institution of the complaint.  Such a determination is likely to be a time consuming process, besides being incapable of determination by way of a summary procedure, which the Consumer Forums are adopting.  Such an interpretation therefore, is likely to be counterproductive and result in an inordinate delay in the disposal of the consumer complaint.  On the other hand, no such difficulty is likely to arise if the sale consideration agreed to be paid by the consumer is taken as the value of the goods or services.  In that case, the amount of compensation as claimed in the complaint needs to be added to the agreed consideration and the aggregate of the consideration and the compensation claimed in the complaint would determine the pecuniary jurisdiction of the Consumer Forum.”

8.      This Commission in Gaurav Parasrampuria & Anr. Vs. Bengal Unitech Universal Infrastructure Pvt. Ltd., & Anr., CC No.173 of 2016, decided on 25.05.2016 (NC) has also taken the view that the value of goods or services is to be taken to be the consideration amount as per the agreement between the parties.  This Commission has observed as under:-

“9.  The complainant is bound by the terms and conditions of the builder- buyer’s agreement.  As per this agreement, in case of delay in possession, there are certain charges @5 /- per sq.ft. per month that will be payable by the builder to the allottee.  As per Section 21 a (i) of the Act, the value of the goods or services along with compensation is to be considered for deciding the jurisdiction of the Consumer Forum.  We are of the view that value of goods/services should be considered in the context of Section 2(1)(d) of the Consumer Protection Act, 1986, defining the consumer, which reads as under:

   “(d)  consumer means any person who,-

(i)   buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid and partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii)   [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose]”

10.  From the above definition of the Consumer, it is clear that consideration could be either paid or promised or partly paid and partly promised or under any system of deferred payment.  Whatever be the method of the payment in the present case, the value of consideration remains at the level of Rs.50,94,903 /- only.  As the “value” is not separately defined in the Act, it may be seen in congruence with the definition of the “consumer” for all practical purposes.   Hence, we have no option but to take valuation on its face value i.e. the sale consideration, which is Rs.50,94,903/- in this case.  A compensation of Rs.30,00,000/- has been demanded by the complainant in the complaint, though the complainant has given no justification for such a high compensation.  Even if both these amounts are added, the amount does not exceed Rs.1,00,00,000/-.  It is another question as to what amount will be refundable by the opposite party to the complainant as per terms and conditions of the builder- buyer’s agreement.”

9.      Thus, the value of the service in the present case will be the consideration for the flat which was Rs.2,32,875/- only.

10.    Now coming to the compensation demanded, it is seen that the complainant has demanded possession and in the alternative Rs.4.43 crores as compensation being the probable value of the proposed flat as per the government ready reckoner. It is to be noted that the observation of the Hon’ble Supreme Court in Ghaziabad Development Authority versus Balbir Singh (supra) was mainly in the context of the fact that in most of the cases, this Commission was awarding interest at the rate 18% per annum. In the context of this uniform compensation being awarded by this Commission, Hon’ble Supreme Court emphasized that a person who has not got the possession due to deficiency of service on the part of the opposite party deserves more compensation as compared to a person who has got the possession but with delay.

11.    This Commission in Gaurav Aneja & Anr. Vs. Supertech Limited, II (2018) CPJ 365 (NC) has observed that an interest at the rate 18% per annum should be considered for calculating the compensation for deciding the pecuniary jurisdiction of a consumer forum on the amount of value of goods or services as per the agreement. This Commission has observed as under:-

3.  In such cases, neither this Commission nor the Hon’ble Supreme Court has awarded compensation in the form of interest at a rate higher than 18% per annum.  Therefore, a claim for a higher interest would be an exaggerated and inflated claim without any legal basis and cannot be taken into consideration for the purpose of determining the pecuniary jurisdiction in terms of Section 21 of the Consumer Protection Act.  If compensation in the form of interest @ 18% per annum is awarded, it will cover the losses of all kind, including the financial loss and distress and mental agony caused to the flat buyer, since the financial loss would not be more than 10-11% per annum, considering the rates of interest prevailing during the relevant period.” 

12.    From the above observation of this Commission, it is clear that for deciding the pecuniary jurisdiction in the present case, interest at the rate 18% per annum on the total consideration of Rs.2,32,875/-for  the flat in question is to be considered from the date of cause af action or at the most from the date of the agreement. Clearly, this amount cannot reach the limit of Rs.1.00 crore and therefore, this Commission lacks the pecuniary jurisdiction to decide the present complaint.

13.    Once we are convinced that this Commission does not have the pecuniary jurisdiction to entertain the present complaint, we do not think it appropriate to express our opinion on the other issues such as limitation or maintainability of the complaint after the dismissal of the civil suit. 

14.    Based on the above discussion, we find that the present complaint is not maintainable before this Commission for want of pecuniary jurisdiction. Accordingly, the present complaint being CC No. 382 of 2020 is dismissed at the admission stage.