Haryana

Ambala

CC/96/2016

Ms. Shashi Bala - Complainant(s)

Versus

M/s Unitech Ltd. - Opp.Party(s)

C.M.Sehgal

29 Aug 2016

ORDER

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

 

            Complaint Case No.: 96 of 2016

Date of Institution   : 15.02.2016

Date of Decision     : 29.08.2016

Shashi Bala W/o Sh.Ashwani Kumar R/o H.No.1718, Radha Kishan Vatika, Radha Kishan Bazar, Ambala City.

                                                                                                                                                                             ……Complainant

                                                                                            Versus

1.         M/s Unitech Ltd. through its Managing Director, Signature Towers, Ground Floor, NH-8, South City-1, Gurgaon (                               Haryana).

2.         M/s Unitech Ltd. through its Managing Director Regd. Office 6, Community Centre, Saket, New Delhi-110017.

3.         Incharge office of Unitech Ltd. Unihomes Sector-16, Ambala City, Haryana.

                                                                                                         ……Opposite Parties

Complaint Under Section 12 of the Consumer Protection Act.

CORAM:        SH. A.K. SARDANA, PRESIDENT.

                        SH. PUSHPENDER KUMAR, MEMBER.                       

Present:          Sh. Mohit Sehgal, Adv. counsel for complainant.

                        Sh. Abhishek Kathuria, Adv. counsel for Ops.  

ORDER.

                        Complainant has filed the present complaint averring therein that complainant got booked a flat with OP on 21.05.2013 in a township UNIHOMES carved out by OP in Sector -16, Ambala City having basic price of Rs.30,66,336/- and possession of the flat was to be handed over to complainant by OP within 36 months from the date of  signing the agreement executed on 19.07.2013.  Accordingly, complainant paid a sum of Rs.06,10,210/- to OP as per payment plan attached  with the agreement as Annexure ‘A’.  It has been further averred that even after deposit of the booking amount in May 2013 and other payments later on as per schedule, OP has failed to raise construction on the site and hand over the possession of the flat as per terms of the agreement. Hence, the present complaint has been preferred by the complainant seeking relief qua issuing a direction to the Ops:-

1. To pay compensation of Rs.10.00 lacs towards deficiency in service and unfair  trade practice.
2. To pay Rs.5.00 lacs towards mental torture, harassment and humiliation caused to the complainant alongwith 18 % interest per annum from the date of booking till the possession of the flat be given to the complainant.
3. To pay recurring compensation of Rs.20,000/- per month till the completion of construction and delivery of possession of the flat/plot to complainant.
4. And  to pay Rs.20,000/-towards cost of litigation.
5. And to construct the flats at the earliest and hand over the possession as soon as possible.  

2.                     Upon notice, Ops appeared through counsel and tendered reply to the complaint raising preliminary objections qua pecuniary jurisdiction. Besides this, some other objections viz. territorial jurisdiction & complainant is not covered in the definition of  consumer  and the relief sought by the complainant is not a consumer dispute rather a dispute of contractual nature which can only be adjudicated in civil proceedings etc. have  also been raised. On merits, the OP has admitted that the company could not hand over the possession of the flat due to reasons of Global meltdown of the economy worldwide wherein the Foreign Investors, as anticipated by the Ops have refrained from any kind of investment in India and there is a total cash crunch throughout. The answering Ops is facing extreme financial hardship due to the recession in the reality market. All these circumstances were beyond the control of the Ops. However,  despite all the aforesaid problems faced by the Ops, construction work is in full swing and the possession shall be handed over to the complainant at the earliest. Moreover, the penal interest @ 18% charged by the Ops is a part of terms & conditions of the Buyer Agreement. Some other reasons for not handing over the possession in time has also been averred.  At last, a prayer for dismissal of complaint with heavy cost has been made.

3.                     To prove his version, counsel for complainant tendered affidavit of complainant as Annexure CX alongwith documents as Annexures C1  to C-5 and closed the evidence whereas on the other hand, counsel for Ops tendered affidavit of Sh. Lalit Gupta, Legal Executive Authorized Representative of OP as Anenxure RX alongwith documents as Annexures R-1 to R-3 and closed their evidence. 

4.                     We have heard learned counsel for complainant as well as Ops and gone through the record very minutely.  Counsel for complainant has categorically contended that as per Buyer agreement, OP was bound to deliver  possession of the flat within 36 months from the date of signing the agreement but Op has neither delivered the same till date nor started the construction at site though complainant has paid a sum of Rs.06,10,210/-  which  amounts to deficiency in service as well as  unfair trade practice on the part of Ops.  In support of his contention, complainant counsel  placed reliance on case law titled as Satish Kumar Pandey & Anr. Vs. M/s UNITECH LTD. C.C. No.427 of 2014 wherein various complaints of similar nature have been decided on 08.06.2015 by Hon’ble  National Consumer Disputes Redressal Commission, New Delhi by issuing a direction to Ops to deliver possession of respective flats to complainants and  pay compensation @ Rs.5/- sq. ft. of the super area as per terms of agreement and pay simple interest @ 12% per annum on the deposited amount till the possession is delivered whereas on the other hand, counsel for Ops has vehemently argued that the complaint is not maintainable in the present form since it exceeds pecuniary limits of Rs.20.00 lacs entrusted to this Forum. He further argued that the complainant is seeking possession of the flat whose basic value is Rs.30,66,336/-. Apart from it, complainant is also seeking compensation to the tune of Rs.10,00,000/- for deficiency in service and Rs.5,00,000/- for mental torture. Over and above this, the complainant is also seeking interest @ 18% per annum from the date of booking till the possession of the flat. Further, the complainant is also seeking recurring compensation of Rs.20,000/- per month till the completion of construction and delivery of possession of flat alongwith Rs.20,000/- as a litigation expenditure. Even if the compensation amount alongwith 18% interest is calculated, it totals to more than Rs.20.00 lacs which is the pecuniary jurisdiction of this Hon’ble Forum.  Further, the complainant is since seeking possession of the flat, the entire sale value of the flat has to be taken into account which is Rs.30,66,336/-. Hence, the present complaint is absolutely beyond the pecuniary jurisdiction of this Hon’ble Forum and deserves to be dismissed on this ground alone. In view of this assertion of counsel for OP, the first and foremost question arises for consideration before this Forum is that “whether this Forum is having pecuniary jurisdiction to decide the present complaint?”.

                        In support of his contention, the counsel for Ops has laid emphasis on Section-11 of the Consumer Protection Act, which is reproduced as under:-

“11 Jurisdiction of the District Forum (1) Subject to the other provisions of this Act, the District Forum  shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed does not exceed rupees twenty lakhs”.

                        Section-11 is worded in clear terms and leaves no one in doubt that the District Forum shall not entertain any complaint which exceeds its pecuniary limits beyond Rs.20.00 lacs. The counsel for the OP further strengthened his version by placing reliance on case law 2016(3) CLT Pg. 20 (NC)  titled as Ravi Marwah Vs. Unitech Reliable Projects Pvt. Ltd. wherein it has been held that “Housing construction-Refund claimed with interest-The amount of interest claimed by the flat buyers needs to be added to the principal amount paid by them for the purpose of deciding whether a particular complaint falls within the pecuniary jurisdiction of  Consumer Forum”. Counsel for OP has also placed reliance on case law rendered by Hon’ble National Consumer Disputes Redressal Commission in case titled as M/s Omaxe Ltd Vs. Iqbal Begum & Anr. etc. decided on 16.05.2014 in First Appeal No.887 of 2013 wherein it is held that “pecuniary jurisdiction  is to be decided in accordance with the prayer made in the  complaint”.

5.                     In view of the legal proposition enunciated above, we refrain ourselves from giving any opinion whether complainant fall within  the purview of consumer or whether any deficiency on the part of Op but we decide the point of pecuniary jurisdiction  first in light of the case laws referred above which says that pecuniary jurisdiction is to be decided (i) in accordance  with the prayer made in the complaint and (ii) the amount of interest claimed by the complainant to be added to the principal amount paid by him for the purpose of deciding the pecuniary jurisdiction. Accordingly, we are of the confirmed opinion that this Forum lacks pecuniary jurisdiction to try the present complaint and the case law submitted by complainant’s counsel is not applicable to the facts of the present case since in the said case, Consumer Complaint was directly filed in the Hon’ble National Consumer Disputes Redressal Commission where the question of pecuniary jurisdiction does not arise at all.  As such, we have no option except to dismiss the present complaint for lack of pecuniary jurisdiction and thus the same is hereby dismissed with no order as to costs with a liberty to the complainant to approach appropriate authority on the same cause of action.  Copies of this order be sent to the parties concerned free of costs, as per rules. File be consigned to the record room after due compliance. 

ANNOUNCED:29.08.2016      

                                                                                                           Sd/-

                                                                                                (A.K. SARDANA)

                                                                                                       PRESIDENT                  

 

                                                                                                           Sd/-

                         (PUSHPENDER KUMAR)  

                                                                                                    MEMBER