Delhi

North East

CC/92/2016

Rita & Mr. Arun Kr. Rai - Complainant(s)

Versus

M/s Panchsheel Realtech Pvt. Ltd. - Opp.Party(s)

09 Mar 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 92/16

 

In the matter of:

 

	Mrs. Rita Rai & Mr. Arun Kumar Rai Both R/o F-407, Shipra Krishna Vita Indirapura, Ghaziabad.	Complainant
	Versus
1.       2.	M/s Panchsheel Realtech Pvt. Ltd G-124, Shop No. 5 Dilshad Colony, Delhi.   M/s Valuent Infradevelopers Pvt Ltd G-124, Shop No.5 Dilshad Colony, Delhi.	Opposite Parties

 

 

DATE OF INSTITUTION:         JUDGMENT RESERVED ON:               DATE OF DECISION      :

21.03.2016 05.03.2018 09.03.2018

 

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

Ravindra Shankar Nagar, Member

 

 

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. The case of the complainants are that they had come across housing project “Panchsheel Pratishtha” launched by the OP in sector 75 Noida, U.P. through advertisement in Times of India and also through property dealer in the month of March 2012 and after meeting sales representative of OP on 16.03.2012 where details of specification, layout, area, other benefit and amenities etc with respect to the said project were discussed, the complainants had booked residential flat measuring 2000 sq.ft at an agreed sale value of Rs. 8,093,102.40/- inclusive of Preferential Location Charges. On the same day, the complainants made an advance payment of               Rs. 8,00,000/- vide cheque number 233851 dated 16.03.2012 drawn on Yes Bank Manesar Branch to the OP2 (sister concern of OP1 having same management) duly received and acknowledge by the OPs vide receipt no. 43 dated 26.03.2012 and the complainants were made to sign Application Form no. 24 as advance registration by the OP. The complainants further stated that the OPs vide e-mail dated 19.03.2012 confirmed the allotment of flat No. T3/403 at the given address for the agreed amount of Rs. 80,93,102/- duly acknowledged by the complainants vide reply e-mail. However the project did not take off  regarding which the complainants had written e-mails dated 30.07.2012 and 17.08.2012 to the OPs but were not replied to. The OP in June 2013 raised a demand letter dated 27.05.2013 to the complainants demanding payment of               Rs. 4,10,676/- as second installment toward the said flat instructing the complainants to pay the same before 06.06.2013. The complainants in compliance of the said demand made a payment of Rs. 4,10,676/- to the OP vide cheque No. 923551 dated 10.06.2013 drawn on Yes bank for which no receipt was given by the OP to the complainant. The complainants have further stated that in 23^rd August 2013, an e-mail was received from the OP regarding changes in their floor plan instructing the complainants to visit their head office to complete the formalities of revised application form and the complainants visited the said head office located at H-169, Sector 63 Noida where they discovered that major changes have been made by the OP in the specification, layout, site plan and other facilities and amenities to the extent of a totally different and new plan from the one initially proposed as can be seen from the new brochure, without any explanation, reason or reasonable compensation for the said changes given by OP. The complainants wrote several e-mails / reminders on 07.09.2013, 20.09.2013, 27.09.2013, 07.10.2013 and 20.10.2013 to the OPs seeking clarification/reason for changes but all the e-mails were unheeded to by the OPs except their continued insistence that the complainants visit the head office and complete the formalities of revised application form. The complainants have stated that unexpectedly vide letter dated 12.11.2013 and e-mail dated 13.11.2013, the OPs threatened the complainants to accept the changed terms and conditions within seven days from the date of said letter or face cancellation of the booking to which the complainants immediately replied to and objected to unilateral cancellation of booking without refund of payment at the current market price of flat booked. However, the OPs vide letter dated 18.01.2014, unilaterally cancelled the booking and asked the complainants to collect the refund amount cheque within one week therefrom from their office. The complainants objected to the unilateral cancelation vide reply e-mail dated 21.01.2014. The complainants visited the head office of the OP for collection of refund payment cheque on 07.02.2014 where the complainants were shocked that the OP were forcing the complainants to accept refund of only the basic amount paid and that to with a pre-condition of signing some unconditional document accepting their unreasonable and unjustified terms like that the complainants shall willfully accept the terms of cancellations and shall not demand any claim, in any form, from the OP against this cancellation, etc. As the complaints denied to accept these terms, the OP humiliated the complainants and sent them back even without handing over the cheque of refund of basic amount. The complainants have further stated that on the RTI application bearing No. 11737 dated 18.03.2014 before the Noida Authority asking the date of allotment of land for the proposed project to the OP and the passed plan and sanctioned scheme etc, the complainants were shocked to receive a reply from the Noida Authority dated 23.05.2014 stating that no such land is allotted in the name of M/s Panchsheel Realtech pvt Ltd in sector 75. Lastly the complainants were constrained to sent legal notice dated 30.03.2015 to the OPs agitating non- delivery of possession as per specification promised and unilateral cancellation of booking without any valid grounds demanding return of paid amount of Rs. 12,10,676/- alongwith the deferential of market price of Rs. 32,16,228/- and Rs. 5,00,000/- towards harassment and mental agony. However the OPs did not act upon the said notice and therefore another legal notice dated 19.06.2015 was sent by the complainants to the OP demanding refund of Rs. 12,10,676/- alongwith interest @ 18% p.a. from the date of payment till realization after which the OPs sent the refund cheque of                      Rs. 12,10,676/- alongwith covering letter dated 15.07.2015. However the OPs did not pay the interest on the principal amount despite with holding the same for more than three years for which a rejoinder notice dated 03.08.2015 was issued by the complainants to the OPs demanding refund of interest @ 18% p.a. alongwith compensation / damages which the OPs chose to ignore. Therefore the complainants were constrained to file the present complaint alleging unfair trade practice and deficiency in service against the OPs and demanded the interest @ 18% p.a. amounting to Rs. 6,34,000/- calculated from each date the payment were made to the OPs till the date of refund from 16.03.2012 and 10.06.2013 respectively till 15.07.2015 in addition to pendent-lite and future interest @ 18% from the date of filing of the complaint till realization. The complainants also prayed for Rs. 10,00,000/- as compensation from OPs for damages suffered by the complainants on account of loss of income, financial strain, mental agony and harassment and legal cost and expenses.
2. Notice were issued to the OPs. Written statement was filed on behalf of the OPs in which the OPs took the preliminary defence that the complainants were defaulters in a dispute which was a commercial transaction and not a consumer dispute and therefore triable by a civil court. The OPs took the defence that they had written various correspondences to the complainants to visit their office and submit NOC on new specifications and layout approved by the authority and in case of objection thereto, the complainants were free to claim refund of the deposited amount  and in accordance to which, after waiting for a considerable period of time for the complainants to visit their office which the complainants did not, the OPs cancelled the booking of the complainants and sent the refund to the complainants through cheque No. 159521 dated 29.06.2015 drawn on Axis bank, Ghaziabad alongwith letter dated 15.07.2015 which was duly received and amount deposited by the complainants without any protest. The OPs further took the defence that the complainants were apprised at the time of booking of flat that all specifications, layout, amenities etc were tentative and subject to changes as per concerned authorities and if the same were not agreeable, the complainants could take refund from the OPs. OPs also took the defence that the complainants had oblique motive to blackmail the OPs by filing RTI etc despite being fully aware of the tentative nature of specifications and changes in constructions subject to approval of concerned authorities and that the present complaint has been filed to extort money from the OPs by misusing the provisions of Consumer Protection Act and therefore liable to be dismissed.
3. Rejoinder to the written statement was filed by the complainants disputing the defence taken by the OPs and the complainants stated that it was only after taking the advance payment from the complainant, not starting the project for a long time, failure to deliver the possession of the flat as per the specification promised and unilateral cancelation of the booking of the said flat without any valid grounds did the OPs refund the amount deposited by the complainants after rigorous follow up by the complainants and legal notices issued to them. The complainant further stated that the OPs despite withholding the principle amount for a period of more than three years, failed to pay the interest thereon which amount if otherwise had been taken as loan from any financial institution would have given collateral and interest of 15 to 18 % interest p.a. The complainants further stated that they are not property dealers or company but individuals who had booked a residential flat in the housing project of the OPs and were therefore consumers and had made timely payments to the demands raised by the OPs with respect to the said flat. The complainants further submitted that they had visited the office of the OPs in August 2013 when called but the OPs did not give any reason or explanation for making major changes in the specifications, layout site plan etc without consent of the complainants and instead were forcing the complainants to sign some confound document in acceptance of their unreasonable and unjustified terms which the complainants refused to accept and therefore were sent back by the OPs without handing over the cheque of refund of basic amount which amounts to deficiency in service and unfair trade practice. The complainants further submitted that booking was cancelled unilaterally by the OPs on 18.01.2014 but no refund was provided at that time till mid July 2015 ignoring all previous mails and notices of refund. The complainants further submitted that the refund amount was received under protest by them to at least secure their principal amount which was clearly communicated to the OPs vide rejoinder notice dated 03.08.2015.                                      The complainants also submitted that it is a general rule that the cost of any flat/ any commodity/ product is always worked out depending upon its specifications/ features/ quality/ standards etc. and if there is any notification / alteration in the said specifications/features/quality/standard etc. then the cost of the said flat/commodity/product should also be modified. In the present case though the OPs removed the key specifications, altered the structure and modified the layout of the complex, but they kept the price of the flat same which amounts to unfair trade practice and deficiency in services.
4. Evidence by way of affidavit were filed by both the parties exhibiting relevant documentary evidence in support of their case/defence.
5. Written arguments alongwith citations were filed by both the parties.
6. We have heard the rival contentions of both the parties and have carefully and thoroughly perused the case file and material placed on record thereof.

Without going in to the merits of the case, this Forum has no pecuniary jurisdiction to adjudicate upon the present case in the light of the judgment passed by three members bench of Hon’ble NCDRC in the case of Ambrish Kumar Shukla and ors Vs Ferrous Infrastructure Pvt Ltd I (2017) CPJ I (NC) decided on 07.10.2016 in consumer case No. 97/16 in which the Hon’ble NCDRC has ruled that it is the value of goods and services as the case may be, and not value or cost of removing the deficiency in service which is to be considered for the purpose of determining pecuniary jurisdiction. Consideration paid or agreed to be paid by consumer at the time of purchasing the goods or hiring or availing of the services, as the case may be is to be considered, along with the compensation, if any, claimed in complaint, to determine the pecuniary jurisdiction of Consumer Forum. Further interest has to be taken into account for the purpose of determine pecuniary jurisdiction. Therefore what has to be seen for the purpose of determining the pecuniary jurisdiction is the value of goods or services and the amount of compensation claimed in the complaint. It is evident from the bare perusal of section 11 of the CPA that the said value determines the pecuniary jurisdiction and the Act does not envisage determination of pecuniary jurisdiction based upon the cost of removing the deficiency in the goods purchased or services to be rendered which therefore would have no bearing in determining pecuniary jurisdiction. Additionally, the amount of interest, which can be paid as compensation, must also necessarily be taken into account for determining pecuniary jurisdiction.

7. In view of the observations and settled law on the aspect of pecuniary jurisdiction made by the Hon’ble NCDRC in Ambrish Shukla case, in the present case, the total consideration has to be viewed in terms of the price of the flat mutually agreed upon for sale and purchase between the parties in dispute herein which was Rs. 80,93,102 (Rupees Eighty Lacs Ninety Three Thousand One Hundred and Two only) which will determine the pecuniary jurisdiction alongwith the compensation / interest claimed by the complainants in the present complaint which is beyond the pecuniary jurisdiction of the Forum of Rs. 20 Lacs since cumulative compensation under heads a, b, c of the prayer clause of the complainants comes to approximately Rs. 86,00,000/- which shall fall within the pecuniary jurisdiction of Hon’ble SCDRC Delhi which has competent jurisdiction under section 17 to adjudicate upon the matters of value of upto 1cr. Therefore let the matter be returned to the complainants with liberty to file the same before Hon’ble SCDRC, Delhi for final adjudication of the matter.

Office is directed to return the matter to the complainants to enable them to seek appropriate relief from the appropriate Forum.

8.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
9.   File be consigned to record room.
10.   Announced on  09.03.2018   

 

(N.K. Sharma)      President

(Sonica Mehrotra) Member

(Ravindra Shankar Nagar) Member