Haryana

StateCommission

CC/127/2016

DLF LTD. - Complainant(s)

Versus

MRIDUL ESTATE PVT.LTD. - Opp.Party(s)

RECEIVED FROM NCDRC,NEW DELHI

16 Dec 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

         

         

Complaint No  :       127 of 2016

Date of Institution:   16.05.2016

Date of Decision :    16.12.2016

 

 

 

Mridul Estate Private Limited, H-108, Connaught Place, New Delhi-110001 through its Director Shri Kamal Kumar Singh.

                                      Complainant

 

Versus

 

 

 

DLF Limited, DLF Centre, Sansad Marg, New Delhi-110001.

 

                                      Opposite Party

 

 

 

 

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Shri B.M. Bedi, Judicial Member.

                             Shri Diwan Singh Chauhan, Member                                                                                                                                         

Argued by:          Shri  N.P. Singh, Advocate for complainant.

Shri Sumit Goel, Advocate for Opposite Party.

 

                                                   O R D E R

 

NAWAB SINGH J,  

 

Background of the case:- Mridul Estate Private Limited-complainant filed complaint under Section 17 of the Consumer Protection Act, 1986 (for short, ‘Act’) before this Commission against DLF Limited, DLF Centre, Sansad Marg, New Delhi-Opposite Party (for short, ‘builder’). 

2.      The complaint relates to a residential building project in the name of “The Aralias” at Gurgaon.  The complainant applied for a flat alongwith two parking spaces on September 25^th, 2004.  The total price of the flat was Rs.2,44,00,000/- (Two crores Forty Four Lakh Only) including Rs.6,00,000/- for two parking spaces.

3.      The complaint was allowed by this Commission vide order dated July 15^th, 2015.  The letter dated September 17^th, 2009 demanding an amount of Rs.1,09,63,010/- by the builder from the complainant was set aside.  The possession of the flat was already with the complainant, so, it was directed that builder shall formally handover symbolic possession and also hand over actual physical possession of two parking spaces.  The builder was also directed to execute conveyance deed in favour of the complainant and to pay Rs.2,00,000/- as compensation and Rs.50,000/- litigation expenses to the complainant.

4.      Against the said order, builder filed appeal before Hon’ble National Consumer Disputes Redressal Commission, New Delhi.

5.      Hon’ble National Consumer Commission vide order dated April 25^th, 2016 accepted the appeal, set aside the order dated July 15^th, 2015 and remanded the matter for decision of all objections of builder taken in written version and decide the complaint afresh after giving an opportunity of being heard to the parties.

6.      At the outset, learned counsel for the builder has contended that the complaint is not maintainable before this Commission because value of the flat in question is Rs.2,44,00,000/-.  So, the Hon’ble National Consumer Commission shall have pecuniary jurisdiction to entertain the complaint.  In support of the contention, reliance has been placed upon two orders of Hon’ble National Consumer Commission in First Appeal No.1194 of 2016, Santosh Arya Vs. Emaar MGF Land Limited decided on October 07^th, 2016  and First Appeal No.644 of 2015, Parikshit Parashar Vs. M/s Universal Buildwell Private Limited and Others, decided on October 07^th, 2016 presided by Hon’ble Mr. Justice D.K. Jain, President. 

7.      On the other hand, learned counsel for the complainant has urged that price of the flat, that is, Rs.2,44,00,000/- for making out jurisdiction of this Commission is not to be taken into consideration because flat does not fall within the definition of ‘goods’.

8.      After hearing learned counsel for the parties and perusing the record over the file, the question arises for consideration is as to whether the complaint is maintainable before this Commission or not?

9.      Prior to the pronouncement of the orders passed by Hon’ble National Consumer Commission in Santosh Arya and Parikshit Parashar cases (supra), this Commission in number of orders held that for assessing the value of service, the price of the flat cannot be counted because flat is an immovable property.  In view of the definition of ‘goods’ provided under Section 2 (1)(h)(i) of the Act.  Section 2 (1)(h)(i) provides that ‘goods’ means goods as defined in the Sale of Goods Act, 1930. According to Section 2(7) of the Sale of Goods Act, 1930, “goods” means every kind of movable property other than actionable claims and money; and includes stock and shares, growing crops, grass, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale.           Per the definition of ‘goods’, a flat or a parcel of land or a house cannot be deemed to be goods because the ‘goods’ can only be movable property.  The definition of ‘goods’ given under the Sale of Goods Act has been adopted under Section 2(1)(h)(i) of the Act.  Since a plot or land is not a ‘goods’, its total value cannot be reckoned for deciding the pecuniary jurisdiction where its possession and compensation are claimed. However, after deliverance of the aforesaid orders Santosh Arya and Parikshit Parashar (supra) by the Hon’ble National Consumer Commission, the legal scenario has changed.  This Commission is duty bound to follow the law as laid down by the Hon’ble National Commission.  In Santosh Arya’s case (supra) the complaint was dismissed by the State Commission on the short ground that it does not have pecuniary jurisdiction to entertain the complaint, as the total compensation claimed by the complainant works out to Rs.6,50,875/- and it being less than Rs.20,00,000/-, only the District Forum had the pecuniary jurisdiction to entertain the complaint.  The findings of the Commission were not accepted by the Hon’ble National Commission by holding in paragraph No.4 of the order as under:-

          “4.    That being the legal position, in the present case, the value of the flat in question by itself being Rs.1,85,01,285/-, and even ignoring the amount of compensation, neither the State Commission nor the District Forum, as held by the State Commission, will have the jurisdiction and this Commission alone will have the pecuniary jurisdiction to entertain the Complaint filed by the Appellant.”

10.    In Parikshit Parashar case (supra), following issues dated August 11^th, 2016 interalia were referred by a Single Member Bench of Hon’ble National Consumer 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)      Whether the interest claimed on such value by way of compensation or otherwise, is to be taken into account for determining the pecuniary jurisdiction of a particular consumer forum. 

(iii)     Whether “the value of the goods or services and compensation, if any, claimed” is to be taken as per the original value of such goods, or service at the time of purchase of such goods or hiring or availing of such service, or such value is to be taken at the time of filing the claim, in question.

(iv)    XXXXXX

(v)               XXXXXX

(vi)     XXXXXX 

          (vii)    XXXXXX.

11.    While answering Issue No.(i) referred to above, the Full Bench of the Hon’ble National Consumer Commission held that 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, the National Consumer Commission alone would have the pecuniary jurisdiction to entertain the complaint.  By referring the instance that 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 the National Consumer Commission because value of the services itself being more than Rs.1.00 crore.

12.    Under Issue No.(ii), it was held that the amount of interest which can be paid as compensation, must necessarily be taken into account for determining the pecuniary jurisdiction. 

13.    With regard to Issue No.(iii), it was held that 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. 

14.    From the aforesaid authoritative pronouncements in both the cases Santosh Arya and Parikshit Parashar (supra), this Commission holds that the present complaint does not fall within the pecuniary jurisdiction of this Commission because value of the flat in question is itself Rs.2,44,00,000/-.  Hence, the complaint is not maintainable before this Commission.  It is accordingly dismissed. 

 

 

Announced 16.12.2016

(Diwan Singh Chauhan) Member

(B.M. Bedi) Judicial Member

(Nawab Singh) President

UK