Chandigarh

StateCommission

CC/376/2017

Sh. Narinder Kumar - Complainant(s)

Versus

M/s DLF India Ltd. - Opp.Party(s)

Kabir Sarin, Adv.

13 Nov 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	376 of 2017
Date of Institution	:	02.05.2017
Date of Decision	:	13 Nov. 2017

 

1. Sh.Narinder Kumar son of Sh.Kanshi Ram, r/o Parsons Overseas Ltd., 2^nd Floor, B-2 Wing, Gulf Tower Dubai, PO Box 9123, UAE.
2. Smt.Apoorva Sharma, d/o Sh.Narinder Kumar, r/o Parsons Overseas Ltd., 2^nd Floor, B-2 Wing, Gulf Tower Dubai, PO Box 9123, UAE.

 ……Complainants

V e r s u s

1.     M/s DLF India Ltd. through its Managing Director/Principal Officer, having its Registered Office at I-E, Jhandewalan Extension, New Delhi.
2.     M/s DLF Universal Ltd., through its Managing Director/ Principal Officer, SCO 190-191-192, Sector 8-C, Chandigarh-160009.

….. Opposite Parties.

Argued by: Sh.Kabir Sarin, Advocate for the complainants.

                 Sh.Parveen Jain, Advocate for the Opposite Parties.

 

Complaints under Section 17 of the Consumer Protection Act, 1986.

 

BEFORE:  MR. DEV RAJ, PRESIDING MEMBER.

                MRS. PADMA PANDEY, MEMBER.

 

PER PADMA PANDEY, MEMBER

                This complaint has been filed by the complainants, alleging that the opposite parties failed to deliver actual physical possession of apartment bearing no.R2-F809, Block-F, Pocket R2, measuring 1881 square feet (in short the unit), purchased by them, vide application dated 27.08.2012, in their project, namely “Hyde Park Estate”, New Chandigarh, Mullanpur, Punjab, despite the fact that they had paid almost the entire sale consideration. It was further alleged that despite the fact that as per Clause 11 (a) of the agreement dated 12.03.2013, the opposite parties were legally bound to deliver possession of the said unit, to the complainants, within a period of 30 months from the date of moving application i.e. from 27.08.2012, which came to 27.02.2015, yet, they failed to do so, despite the fact that Rs.88,48,156/- had been received by them (opposite parties).  It was stated that when possession of the unit was not delivered by the stipulated date, the complainants made number of requests to the opposite parties, to do the needful, but, to the contrary, just to evade their liability, they issued paper offer vide letter dated 28.09.2016. It was further stated that since till date neither actual physical possession of the unit, in question, has been delivered to the complainants, nor they were paid compensation, for the period of delay, as such, the opposite parties are deficient in providing service and also adopted unfair trade practice.   Hence this complaint.

2.         In the reply filed, the opposite parties while admitting factual matrix of the case with regard to price of the unit; date of delivery of possession, as mentioned in the complaint; delay in delivery of possession of the unit, in question, pleaded that the consumer complaint is not maintainable, in view of arbitration clause contained in the Agreement. It was stated that since possession of the unit, in question, was offered to the complainants, vide letter dated 28.09.2016, and they are not willing to take the same, as such, they (complainants) were liable to pay holding charges. It was further stated that compensation for the period of delay, had been credited in the account of the complainants. It was further stated that the present complaint cannot be adjudicated under summary proceedings and only the Civil Court is competent to do so. It was further stated that the project is complete in all respects; unit is also ready to be handed over, however, the complainants have not submitted requisite documents, as a result whereof, possession thereof, was not handed over to them. Territorial jurisdiction of this Commission is also disputed. Prayer was made to dismiss the complaint.
3.         The parties led evidence in support of their case.
4.         We have heard Counsel for the parties and have gone through the record and evidence of the case, very carefully and are of the considered opinion that the present complaint is not maintainable before this Commission, for want of pecuniary jurisdiction, as would be discussed hereinafter.
5.         In Ramesh Kumar Sihan Hans Vs. Goyal Eye Institute and others, Consumer Complaint No.135 of 2011 decided on 30.03.2012, it was held by the National Commission that the District Forum, State Commission or the National Commission are required to examine the complaint to find out (1) Whether the complainant is a consumer within the meaning Section 2(1)(d) of the Act and is entitled to invoke the original jurisdiction of the Consumer Forum; (ii) Whether the complaint raises one or more consumer disputes viz., unfair trade practice or restrictive trade practice, defects in goods or deficiency in service as defined under the Act; (iii) Whether Consumer Forum has territorial and pecuniary jurisdiction to entertain the complaint; (iv) Whether the complaint has been filed within the period of limitation, and; (v) Whether complaint is accompanied with such amount of fee, as has been prescribed. As such, under above circumstances, the moot question, that falls for consideration, is, as to whether, this Commission is vested with pecuniary jurisdiction to entertain and decide this complaint or not. For determining this question, it is necessary to add here that as per Section 17 (1) (a) (i) of the Act, this Commission is bound to entertain the complaints, only where the value of the goods or services and compensation, if any claimed, exceeds Rs.20 lacs but does not exceed rupee one crore. Relevant Section reads thus:-

“Section 17(1) in the Consumer Protection Act, 1986

(1) ] Subject to the other provisions of this Act, the State Commission shall have jurisdiction—

(a) to entertain—

(i) complaints where the value of the goods or services and compensation, if any, claimed 2[exceeds rupees twenty lakhs but does not exceed rupees one crore];”

               

                First coming to the statement dated 28.04.2017 Annexure C-3, placed on record by the complainants themselves, the total due to be paid towards the said unit is  shown as Rs.98,89,954.06ps. out of which, they (complainants) have paid Rs.96,12,326.06ps. and still an amount of Rs.87,119.06 ps. is shown as balance to be paid to the opposite parties. The said statement is a detailed one and the amount of Rs.98,89,954.06ps. payable towards value of the unit, has been clearly shown therein, head-wise. As such, from the said statement, it can very well be assumed that the total value of the unit, in question, is Rs.98,89,954.06ps. If that is so, if amount of compensation for the period of delay in handing over possession of the unit, by way of interest @8.5% on the deposited amount, as also the amount of compensation towards mental agony etc. to the tune of Rs.2 lacs, as sought by the complainants in their complaint, is added to  Rs.98,89,954.06ps., it will definitely cross Rs.1 crore and as such, this Commission is not vested with pecuniary jurisdiction to entertain and decide this complaint.

6.         Not only as above, even if we go with the offer letter dated 28.09.2016 Annexure C-6, even then this Commission is not vested with pecuniary jurisdiction to entertain and decide this complaint, for the reasons to be recorded hereinafter. In the said letter, total amount payable towards price of the unit, in question, which included basic sale price, EDC, increase in Area and PLC, service tax and other charges, is shown as Rs.90,30,191.06ps. which is inclusive of Rs.61,493/- (+) Rs.8,43,158/-, on account of Early Payment Rebate and Down Payment Rebate. It means that the complainants paid a sum of Rs.90,30,191.06ps. minus Rs.61,493/- (+) Rs.8,43,158/-= Rs.81,25,540.06ps. As per the said letter, the complainants were required to pay Rs.7,94,415/- towards stamp duty and registration charges i.e. total  Rs.89,19,955.06ps. If that is so, even in this case, if amount of compensation for the period of delay in handing over possession of the unit, by way of interest @8.5% on the deposited amount, as also the amount of compensation towards mental agony etc. to the tune of Rs.2 lacs, as sought by the complainants, is added to Rs.89,19,955.06ps., it will also cross Rs.1 crore and, as such, this Commission is not vested with pecuniary jurisdiction to entertain and decide this complaint.
7.         No doubt, at the time of arguments, it was stated by Counsel for the complainants that since, in the first instance, basic sale price of the unit, in question, was fixed at Rs.70,81,802/-, as such, if the amount of reliefs claimed in the complaint,  is added in the said amount, the  same fell below Rs.1 crore, and, as such, the present complaint is under the purview of this Commission, as far as pecuniary jurisdiction is concerned. We do not agree with the argument raised. In the first instance, the said argument is contrary to what has been stated by the complainants, in para no.2 (j) of their complaint. In that para it has been clearly mentioned that the entire sale consideration, towards the said unit, paid by them, is Rs.88,48,156/-. Furthermore, it is an admitted case that, as per terms and conditions of the agreement aforesaid, the opposite parties were entitled to increase the area of the flat. It is also not disputed that apart from the basic sale price of the said unit, the complainants, by way of agreement aforesaid, also agreed to pay various charges towards EDC, PLC, electricity, escalation cost, water, service tax, VAT, etc. etc., which was to constitute the entire sale consideration of the unit, in question. As such, the total sale consideration of the unit, in question, including all the charges, referred to above, was demanded vide letter dated 28.09.2016, vide which offer of possession was made by the opposite parties to the complainants.  As stated above, if the total amount demanded by way of letter dated 28.09.2016 (after deducting early payment rebate, discount etc.) and also the compensation claimed by the complainants, is added, it definitely crosses Rs.1 crore and is beyond pecuniary jurisdiction of this Commission. At the same time, Section 17 (1) (a) (i) of the Act, clearly says that it is the value of the goods or services and also the compensation claimed, to determine pecuniary jurisdiction of the State Commission.  It is nowhere mentioned in the said Section that only basic sale price is to be taken into consideration and rest of the charges, if any, are to be ignored, while determining pecuniary jurisdiction of the Consumer Fora.  
8.         Besides as above, if we take it from another angle also; as stated above, the complainants in para no.2 (j) of their complaint have clearly mentioned that they had paid total sale consideration of Rs.88,48,156/- to the opposite parties.  To some stretch, for the sake of arguments, though not admitting, if we assume that the entire sale consideration of the unit (Rs.88,48,156/-), in question, as admitted by the complainants also, is correct, even then, if amount of compensation for the period of delay in handing over possession of the unit, by way of interest @8.5% on the deposited amount, (which as on 02.05.2017, the date of filing the complaint, as per  calculation given by Counsel for the complainants during arguments is Rs.12,94,692/- (+) Rs.83,711/-=Rs.13,78,383/-) as also the amount of compensation towards mental agony etc. to the tune of Rs.2 lacs, as sought by the complainants, is added to the same (Rs.88,48,156/-) it will clearly exceed Rs.1 crore and, as such, in that event also, this Commission is not vested with pecuniary jurisdiction to entertain and decide this complaint.
9.         Under above circumstances, it is held that the present complaint is not maintainable before this Commission, for want of pecuniary jurisdiction and the same is dismissed, with no order as to costs. However, the complainants are at liberty to approach the appropriate Fora, having pecuniary jurisdiction, for redressal of their grievance.
10.         Certified Copies of this order be sent to the parties, free of charge.
11.         The file be consigned to Record Room, after completion.

Pronounced.

13 Nov. 2017

Sd/-

[DEV RAJ]

PRESIDING MEMBER

 

 

Sd/-

[PADMA PANDEY]

 MEMBER

Rg.