Haryana

StateCommission

CC/83/2016

COL.HARBINDER PAL SINGH - Complainant(s)

Versus

M3M INDIA LTD. - Opp.Party(s)

INDERDEEP SINGH

04 Jul 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA.

 

                                                Complaint No.83 of 2016

                                             Date of Institution: 22.03.2016

          Date of Decision: 04.07.2017

 

Col. Harbinder Pal Singh Tiwana, r/o 1001, New Greenwood CGHS, Sec-52, Gurgaon presently now residing at H.NO.1460, Silver City Heights, Zirakpur, Distt. Mohali, Punjab.

…..Complainant

 

Versus

 

1. M3M India Limited, Paras Twin Towers, Tower-B, 6^th Floor, Golf Course road, Sector-54, Gurgaon, through its Managing Director/In Charge.
2. Sehgal Estate authorized partners of M3M India Limited, Paras Twin Towers, address D 133 Sector 57, Gurgaon, Haryana.

          …..Opposite Parties

 

 

CORAM:             Mr. R.K.Bishnoi, Judicial Member.

                   Mr.Urvashi Agnihotri, Member.                                      

For the parties:  Mr.Inderdeep Singh, Advocate counsel for the complainant.

                             Mr.Sanjay Vij, Advocate counsel for opposite parties.

 

O R D E R

 

 

R.K.BISHNOI, JUDICIAL MEMBER :-

It is alleged by the complainant that considering brochures and site location shown by opposite parties (O.Ps.)  he purchased 2 BHK flat measuring 1366 sq. feet and rate was 4462/- per sq. feet in M3M Wood Shire, Sector-107, Gurgaon.  Whenever he asked O.ps. to show the site it was told that the road work was going-on and it was not possible to go there. Thereafter he made up mind to purchase 2 BHK with study/servant quarter on  top floor being roof area. So, he sold his previous 2 BHK and purchased an other flat bearing No.BB02/1504 from Ram Kishan in the month of January 2013 and paid Rs.14,11,242/- to him vide cheque dated  21.01.2013.  Due to coercion he signed builder Buyer’s agreement on 31.05.2013 without seeing actual site.  At the time of booking it was told that flat was being constructed at a distance of about one KM from Najafgarh drain and towards South west of village Dharampur. When he visited site it was found that tower, wherein flat was being constructed was at a distance of about 100 meters from Nazafgarh drain and was towards North-West of village. He sent several e-mails to O.Ps., but, to no result.  As they changed location of flat then shown to him, so he is not willing to keep that flat and O.ps. be directed to refund Rs.21,16,862/- already deposited by him alongwith the compound interest @ 24% per annum till the payment besides compensation to the tune of Rs.Five lacs on account of loss of opportunity and Rs.Five lacs on account of mental harassment, pain and agony and Rs.25,000/- as litigation expenses.

2.      O.ps. filed reply controverting his averments and alleged that he was never misguided at the time of purchasing the flat. Complainant is a subsequent buyer and not original allottee so he cannot be considered as a consumer. He is also not having requisite loan amount to pay the balance amount. He alongwith his friend and friends  daughter booked three units for earning profit by re-selling the same, but, due to slump in the market he is not expecting desired profit that is why he is asking for refund of the amount.  He did not  make payments as per terms and conditions of agreement. Despite letters dated 08.10.2013, 08.11.2013, 13.11.2013, 05.12.2013, 19.12.2013, 13.01.2014, 23.01.2014, 19.02.2014 and 04.04.2014 he also filed civil suit for mandatory injunction to direct it not to allot his unit to anyone, but, when the true picture was brought before the civil court the suit was withdrawn and the present complaint is barred under order 23 rule I of CPC.  His daughter and friend also filed the suit  which was withdrawn. He is dealing in the business of sale and purchase of property. Her took an another 2 BHK in this project on 04.12.2012 which was transferred to one Anish Singh vide letter dated 15.03.2013.  As complicated question of law and fact is involved the matter should be decided by civil Court as per agreement the dispute be referred.  Objections about jurisdiction of this complaint, mis-joinder of parties. Objections about concealment of true facts etc. were also raised and requested to  dismiss complaint.

3.      Both the parties have led their evidence.

4.      Arguments heard. File perused.

5.      Learned for the complainant vehemently argued that for pecuniary jurisdiction basic sale price of the flat is to be taken into consideration which is 68,44,708/-.  After adding interest etc. it comes to Rs.94,78,524/-.  The total sale consideration shown in clause No.301 of agreement is including EDC etc. and that cannot be taken into consideration.

6.      This argument is of no avail. From the perusal of clause 3.1 it is clear that total consideration to be paid by complainant is 81,82,562/-.  For ready reference the said para is reproduced as under:-

“3.1   In accordance with the terms and conditions of this agreement as agreed between the parties, the company hereby agrees to sell to the allottee and the allottee hereby agrees to purchase the Apartment NO.MW TW-B02/1504 of Super Area admeasuring approximately 1534 sq. ft. (142.51 sq. mtrs.) on the Floor 15 in the Woodshire Tower B2 in the Group Housing Colony for a total consideration of Rs.8182562/- (Rupees Eighty-One Lakh Eighty-Two thousand Five Hundred Sixty-Two only) (hereinafter referred to as the “Total Consideration”) payable to the Company strictly as per the payment plan annexed hereto as Annexure “A”

The Total consideration includes:

i.        Basic sale price (“BSP”) of Rs.4462/- (Rupees Four Hundred Sixty Two only) per sq. ft. of the Super Area amounting to a total BSP of Rs.6844708/- (Rupees Sixty-Eight Lakh Forty Four thousand Seven Hundred Eight only).

ii.       Preferential location charges (“PLC”) of Rs.100/- (Rupees One Hundred only) per sq. ft. of Super Area amounting to a total PLC of Rs.153400/- (Rupees One Lakh Fifty Three thousand Four Hundred only).

iii.      Charges for exclusive use of 1 Car Parking space(s) for a total of Rs.450000/- (Rupees four Lakh Fifty thousand only).

iv.      Development Charges (“DC”) of Rs.584454/- (Rupees Five Lakh eight-
Four Thousand Four Hundred Fifty-Four only) per sq. ft. of the Super Area amounting to a total of Rs.381/- (Rupees Three Hundred Eight-One Only).

v.       Club Membership charges of
Rs.150000/-

Applicable taxes shall be additionally payable by the allottee.”

In payment plan the amount has been bifurcated showing to be paid under different heads. In this plan also the total cost is shown as 83,35,962/-.  If interest claimed on amount deposited is added in the sale consideration then it is more than one crore, which is as under:-

            “Sr.No. Payment paid.               Total cost of flat                       As per agreement

          1.             Total consideration to be paid            Rs.81,82,562/-                        Rs.83,35,962/-

                2.             Interest                                   Rs.16,08,816/-                        Rs.16,08,816/-

                3.             Compensation claimed        Rs.10,25,000/-                        Rs.10,25,000/-

                                Total                                       Rs.1,08,16,378/-                     Rs.1,09,69,778/-

7.      As per opinion of Hon’ble National Commission expressed in Consumer case No.97 of 2016 titled as Ambrish Kumar Shukla & 21 Ors. Vs. Ferrous Infrastructure Pvt. Ltd. decided on 07.10.2016 consideration paid or agreed to be paid by the consumer is to be taken into consideration.  In Issue No.2 pertaining to reference dated 11.08.2016 it is specifically opined that interest claimed is also to be taken for the purpose of pecuniary jurisdiction.  Reference dated 11.08.2016 is as under:-

          “Reference dated 11.08.2016

          Issue No.(i)

It is the value of the goods or services, as the case may be, and not the value or cost of removing the deficiency in the service which is to be considered for the purpose of determining the pecuniary jurisdiction.

          Issue No.(ii)

The interest has to be taken into account for the purpose of determining the pecuniary jurisdiction of a consumer Forum.

Issue No.(iii)

The consideration paid or agreed to be paid by the consumer at the time of purchasing the goods or hiring or availing of the services, as the case may be, is to be considered, alongwith the compensation, if any, claimed in the complaint, to determine the pecuniary jurisdiction of a Consumer Forum.

Hon’ble National Commission has opined in Appeal No.1194 of 2016 titled in Santosh Arya Vs. EMAAR MGF Land Limited decided on 07.10.2016 that general relief claimed is also to be taken into consideration. For ready reference para No.3 of that judgement is reproduced as under:-

“3.     On a bare reading of the afore-extracted provision, it is clear that it is only the value of the goods or services and the quantum of the compensation, if any, claimed in the complaint, which determines the jurisdiction of the State Commission.  In other words, it is the aggregate of the value of the goods agreed to be paid by the consumer and the amount claimed as compensation, which will determine the pecuniary jurisdiction of the state Commission. the act does not envisage determination of the pecuniary jurisdiction based upon the cost of removing the deficiency in the goods purchased or the services to be rendered to a consumer.”

As per this calculation relief claimed is more than one crore which is beyond pecuniary jurisdiction of this Commission.  When this commission is not having jurisdiction to adjudicate upon this matter, it is not supposed to go into the merits of the case because judgment without jurisdiction is nullity as opined by Hon’ble National Commission in Revision Petition No.317 of 1994 titled as Haryana Urban Development Authority Vs. Vipan Kumar Kohli decided on 19.01.1995.

8.                As a sequal to above discussion, complaint is dismissed as without jurisdiction. Complainant may be given the benefit of the time consumed during the proceedings of this complaint for the computation of period for limitation in subsequent proceedings, if any, as per opinion of Hon’ble Supreme Court in Laxmi Engineering Works Versus PSG Industries Institute (1995) 3 SCC 583.

 

July, 04th, 2017

Mrs.Urvashi Agnihotri, Member, Addl.Bench

R.K.Bishnoi, Judicial Member Addl.Bench

 

S.K.