JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL) The complainant booked a residential apartment with the opposite party Supertech Limited, in a project namely “Supertech Hues”, which the opposite party was to develop in Sector 68 of Gurgaon. The booking was made on 14.01.2017 and after allotment of flat number F/0101 in the aforesaid project to the complainant for a consideration of Rs.92,52,038/- a Buyer Development Agreement was executed between the parties on 18.07.2014. As per the aforesaid agreement the possession was to be offered to the complainant within 42 months i.e by July,2017 with a grace period of 6 months. The grievance of the complainant is that even the construction was not complete by the opposite party despite he having paid Rs.27,60,864/- to them. The complainant is therefore before this Commission with the following prayers:- “a. To direct the First Opposite Party to give the allotment of similar residential unit immediately; and; b. In the alternative, refund the principle amount of Rs. 27,60,864/- along with 12% from date of payment till refund of entire amount to the Complainant wherein the complainant already made payment of interest to Bank from 2014-2017 on the loan amount; and; c. Grant compensation of Rs. 10 lakhs as compensation for mental agony and harassment; and; d. Grant litigation cost of Rs. 50,000/- in favour of the complainant.” 2. The complaint has been resisted by the opposite party which has admitted the allotment made to the complainant as well as the payment received from him. A preliminary objection has been taken by the opposite party that this Commission lacks pecuniary jurisdiction to entertain the consumer complaint. On merits it is stated in the written version filed by the opposite party that the construction has been delayed on account of (1) an order dated 07.04.2015 passed by National Green Tribunal, placing restrictions on construction activities and (2) on account of the opposite party having sought to enhance the construction quality and having sought to strengthen the structure by applying advanced shuttering technology which took some time to be implemented. It is also been stated in the Written Version that the complainant was defaulter in making payment of the balance sale consideration having failed to pay the payment of Rs.34,25,453/- demanded vide letter dated 05.08.2017 followed by a reminder dated 19.09.2017. 3. As for as the pecuniary jurisdiction of this commission is concerned in terms of Section 21 of the Consumer Protection Act, this Commission possesses the requisite pecuniary jurisdiction where the value of the goods purchased or the services hired or availed as the case may be and the compensation if any, claimed in the complaint exceeds Rs.1 Crore. It was held by a Three-Members Bench of this Commission in Ambrish Kumar Shukla Vs. Ferrous Infrastructure & Ors. Vs. Ferrous Infrastructure Pvt. Ltd. on 07.10.2016, that the value of the services in such a case would mean the sale price agreed to be paid by the buyer to the seller. The aforesaid decision to the extent it is relevant reads as under:- “12.Section 21 of the Consumer Protection Act, to the extent it is relevant provides that this Commission shall have jurisdiction to entertain complaints where the value of the goods or services and compensation, if any, claimed exceeds Rs.1.00 crore. Therefore, what has to be seen, for the purpose of determining the pecuniary jurisdiction, is the value of the goods or services and the amount of the compensation claimed in the complaint. If the aggregate of (i) the value of the goods or services and (ii) the compensation claimed in the complaint exceeds Rs.1.00 crore, this Commission would have pecuniary jurisdiction to entertain the complaint. Similarly, if the aggregate of the value of (i) the goods or services and (ii) compensation, if any, claimed in the complaint exceeds Rs.20.00 lacs but does not exceed Rs.1.00 Crore, the State Commission would have the pecuniary jurisdiction to entertain the complaint. 14. It is evident from a bare perusal of Sections 21, 17 and 11 of the Consumer Protection Act that it’s the value of the goods or services and the compensation, if any, claimed which determines the pecuniary jurisdiction of the Consumer Forum. The Act does not envisage determination of the pecuniary jurisdiction based upon the cost of removing the deficiencies in the goods purchased or the services to be rendered to the consumer. Therefore, the cost of removing the defects or deficiencies in the goods or the services would have no bearing on the determination of the pecuniary jurisdiction. 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, it is this Commission alone which would have the pecuniary jurisdiction to entertain the complaint. For instance if a person purchases a machine for more than Rs.1.00 crore, a manufacturing defect is found in the machine and the cost of removing the said defect is Rs.10.00 lacs, it is the aggregate of the sale consideration paid by the consumer for the machine and compensation, if any, claimed in the complaint which would determine the pecuniary jurisdiction of the Consumer Forum. Similarly, if for instance, 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 this Commission, the value of the services itself being more than Rs.1.00 crore. The Hon’ble Supreme Court thus recognized that the interest to the flat buyers is paid by way of compensation. In fact, though the Consumer Protection Act, authorises the Consumer Forum to award compensation, no specific powers to award interest has been conferred upon it. Therefore, in view of the provisions contained in Sections 21, 17 and 11 of the Consumer Protection Act, the amount of the interest, which can be paid as compensation, must necessarily be taken into account for determining the pecuniary jurisdiction. 4. The learned counsel for the opposite party in support of his application relies upon the decision of this Commission in CC/1195/2017 Narendra Shah & Anr. Vs. Supertech Ltd. decided on 24.5.2017. The aforesaid decision rendered by a single Member Bench of this Commission being contrary to the decision of the three-Members Bench of this Commission in Ambrish Kumar Shukla (Supra) is per curiam and therefore, does not constitute a binding legal precedent. The amount paid by the flat buyer to the builder would have absolutely no relevance in such a case. A reference in this regard can be made to the order passed in CC No. 508 of 2017 Pradeep Kumar Verma & Anr. Vs. M/s Supertech Limited, decided on 27.08.2018 against this very opposite party, which reads as under:- 4. The first plea advanced by the learned counsel for the opposite party is that this Commission lacks pecuniary jurisdiction to entertain this complaint. In support of her contention she relies upon the decision of a Coordinate Bench of this Commission in CC/1195/2017 Narendra Shah & Anr. Vs. Supertech Ltd. decided on 24.5.2017. The aforesaid decision, in my view, is contrary to the decision of a Three-Members Bench of this Commission in Ambrish Kumar Shukla Vs. Ferrous Infrastructure Pvt. Ltd. CC No. 97 of 2016, decided on 07.10.2016 and therefore, does not constitute a binding legal precedent. In terms of Section 21 of the Consumer Protection Act, this Commission possesses the requisite pecuniary jurisdiction to entertain a consumer complaint where the value of the goods or services, as the case may be, and the compensation, if any, claimed, in the consumer complaint exceeds Rupees one crore. It was held by the Three-Members Bench of this Commission in Ambrish Kumar Shukla (supra) that the value of the service in such cases would mean the sale consideration agreed to be paid by the flat buyer to the builder. The amount actually paid by the flat buyer to the builder would have absolutely no relevance in such a case, the only relevant factors being the value of the service i.e. the sale price agreed to be paid by the flat buyer to the builder and the compensation claimed in the consumer complaint. For instance, if a flat buyer agrees to purchase a residential house for a consideration of more than Rupees one crore, but pays only Rs.10.00 lacs to the builder and is aggrieved on account of the builder having failed to honour his contractual commitment, the appropriate Forum, if he wants to file a consumer complaint, would be this Commission, since the value of the service i.e. the price which he had agreed to pay to the builder for the flat was more than Rupees one crore. In the present case, admittedly, the sale price of the flat was agreed at more than Rs.1,38,00,000/-. Therefore, it is only and only this Commission which would have pecuniary jurisdiction to entertain a consumer complaint. 5. An appeal being Civil Appeal Diary No.39429 of 2018 Supertech Limited Vs. Pradeep Kumar Verma & Anr. was preferred before the Hon’ble Supreme Court against the decision of this Commission in Pradeep Kumar Verma (supra) and the said appeal was dismissed vide order dated 19.11.2018 which reads as under: “Delay condoned. We see no merit in this appeal. The civil appeal is, accordingly, dismissed. Pending application(s), if any, shall stand disposed of.” 6. In Kunhayammed & Ors. Vs. State of Kerala & Anr. (2000) 6 SCC 359, the Hon’ble Supreme Court held as under: 41. Once a special leave petition has been granted, the doors for the exercise of appellate jurisdiction of this Court have been let open. The order impugned before the Supreme Court becomes an order appealed against. Any order passed thereafter would be an appellate order and would attract the applicability of doctrine of merger. It would not make a difference whether the order is one of reversal or of modification or of dismissal affirming the order appealed against. It would also not make any difference if the order is a speaking or non- speaking one. 44. To sum up, our conclusions are :- - Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law.
(vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation. Recently, in Civil Appeal No. 2432 of 2019 Khoday Distilleries Ltd. (Now Known as Khoday India Limited) & Ors. Vs. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd., Kollegal (Under Liquidation) Represented by the Liquidator, decided on 01.03.2019, a three Judges Bench of the Hon’ble Supreme Court inter-alia held as under: 27) From a cumulative reading of the various judgments, we sum up the legal position as under: (vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation. Therefore, the order passed by this Commission on 27.08.2018 in Pradeep Kumar Verma (supra) stands merged in the order passed by the Hon’ble Supreme Court on 19.11.2018 in Civil Appeal Diary No. 39429 of 2018. 5. The learned counsel for the opposite party submits that since the aforesaid issue is under consideration of a Larger Bench of this Commission and the Larger Bench is scheduled to meet on 13.03.2020 the hearing of the consumer complaint may be deferred awaiting the decision of the Larger Bench. However, I find no justification for adjournment merely on account of pendency of the reference made to the Larger Bench. The request is, therefore, declined. 6. As regards the default on the part of the complainant in making payment in terms of the payment letter dated 05.08.2017, a perusal of the legal notice sent by the complainant to the opposite party on 25.08.2017 in response of the above referred demand letter would show that the complainant did not make the balance payment since he was informed on the website of the opposite party that the possession of the houses in this project would be handed over in 18 months and considering the usual time frame for completing the project from superstructure stage it takes two and half years for completion. As noted earlier the possession of the flat was to be delivered to the complainant by July 2017, though a grace period of 6 months was also available to the opposite party. Since the opposite party itself was claiming on its website that the possession will be delivered after 18 months it is obvious that it was not in a position to complete the construction and offer possession to the complainant even by January 2018 when the grace period of 6 months expired. The opposite party responded to the legal notice of the complainant on 09.09.2017. But in the response to the legal notice the opposite party did not even claim that it would be in a position to deliver possession to the complainant by January 2018. Considering that even according to the opposite party the construction had reached only the superstructure level by August, 2017, the complainant could not be expected to keep on making further payments and thereby keep on sinking more and more money into a project in which the possession was nowhere in sight in near future. The subsequent events also vindicate the stand taken by the complainant in legal notice sent by him. The demand was raised by the opposite party in August, 2017. It has been more than two and a half years since then. Even today construction is not complete and the opposite party is not in a position to deliver possession of the allotted flat to the complainant. The learned counsel for the opposite party submits that they will be in a position to deliver possessioin of the allotted flat to the complainant in June 2021. The complainant cannot be made to await indefinitely for the possession of the flat, he having booked apartment way back in January 2014 and more than 6 years have already expired since. A reference in this regard can be made to the decision of the Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan & Connected Matters, (2019) 5 SCC 725. In Pioneer Urban Land & Infrastructure Ltd. (supra), the builder submitted before this Commission itself that since the construction of the apartment was complete and Occupancy Certificate had been obtained, the flat purchaser must be directed to accept the possession instead of directing refund of the amount deposited. In that case, there was a delay of about three years in offering possession and the flat purchaser had submitted that he was not interested in taking possession after delay of about three years. He also stated that he had taken an alternative property in Gurgaon. This Commission having allowed refund to the complainant/respondent, the appellant before the Hon’ble Supreme Court inter-alia contended that as per the terms of the agreement executed between the parties, the flat purchaser could claim refund only after expiry of twelve months from the grace period by terminating the agreement but the Consumer Complaint had been filed even before the said twelve months period after the grace period had come to an end. Rejecting the contentions advanced by the builder, the Hon’ble Supreme Court inter-alia held as under: 6.1. In the present case, admittedly the Appellant – Builder obtained the Occupancy Certificate almost 2 years after the date stipulated in the Apartment Buyer’s Agreement. As a consequence, there was a failure to hand over possession of the flat to the Respondent – Flat Purchaser within a reasonable period. The Occupancy Certificate was obtained after a delay of more than 2 years on 28.08.2018 during the pendency of the proceedings before the National Commission. In Lucknow Development Authority v. M.K. Gupta,2 this Court held that when a person hires the services of a builder, or a contractor, for the construction of a house or a flat, and the same is for a consideration, it is a “service” as defined by Section 2 (o) of the Consumer Protection Act, 1986. The inordinate delay in handing over possession of the flat clearly amounts to deficiency of service. In Fortune Infrastructure & Anr. v. Trevor D’Lima & Ors.,3 this Court held that a person cannot be made to wait indefinitely for possession of the flat allotted to him, and is entitled to seek refund of the amount paid by him, along with compensation. 6.2. The Respondent – Flat Purchaser has made out a clear case of deficiency of service on the part of the Appellant – Builder. The Respondent – Flat Purchaser was justified in terminating the Apartment Buyer’s Agreement by filing the Consumer Complaint, and cannot be compelled to accept the possession whenever it is offered by the Builder. The Respondent – Purchaser was legally entitled to seek refund of the money deposited by him along with appropriate compensation. 7. As far as the delay in completion of the construction is concerned, as noted earlier, two grounds have been taken in the Written Version. As far as the order passed by the National Green Tribunal is concerned, a perusal, of the said order would show it was applicable to the construction which was being carried out without obtaining the requisite environmental clearances or in contravention of the orders passed by NGT. If the opposite party was carrying out construction without obtaining the requisite environmental clearance or in contravention of the orders passed by National Green Tribunal, it is only itself to blame for a situation in which the order dated 07.04.2015 came to be passed by the National Green Tribunal. The opposite party obviously cannot be allowed to take advantage of its own lapse in the matter. Moreover in written version filed by it, the opposite party has not disclosed the period during which the above referred order passed by National Green Tribunal was in force. Therefore, it is not possible to know for how much period the opposite party could not go ahead with the construction on account of the order passed by the National Green Tribunal. As regards the delay on account of the developer being keen to employ an advanced technology, it had to procure and use the said technology well in time, so as to ensure timely performance of its contractual obligation. 8. This is the case of the opposite party itself that it had completed the superstructure by the time the payment notice issued on 05.08.2017. This would mean that the order passed by the National Green Tribunal had come to an end much earlier. The opposite party, however, has not been able to offer possession of the flat to the complainant despite it claiming to have completed the superstructure way back in August 2017 and it is seeking to deliver possession only in June, 2021, almost four years after the superstructure was originally completed by it. This clearly shows that the opposite party has not completed the entire work in relation to the allotted flat even if the superstructure had been completed by it before 05.08.2017. In the circumstances, it would be really unfair and unreasonable to the complainant to ask him to wait indefinitely or at least till June 2021 for taking possession of the allotted flat. The complainant, therefore, is entitled to seek refund the amount which he had paid to the opposite party along with interest on that amount. 9. Though the complainant had sought allotment of an alternative flat by the opposite party no such offer was made to him during pendency of this complaint. The complainant, who is present in the court states that under these circumstances he does not want any alternative allotment from the opposite party and wants only refund of the amount which he had paid to the opposite party along with appropriate compensation. 10. The learned counsel for the complainant, on instructions, states that complainant is pressing for refund of the principal amount being paid to the opposite party along with interest as per the rates under RERA of Haryana. The said rate is currently stated to be 10.2% p.a. The complainant is, therefore, disposed with the following directions:- (a) Opposite party shall refund the entire principal amount of Rs.27,60,864/- to the complainant along-with compensation in the form of simple interest at the rate of 10.2% p.a. from the date of each payment till refund; (b) Opposite party shall pay a sum of Rs.25,000/- as cost of litigation to the complainant. (c) The payment in terms of this order shall be made within 3 months from today. | 
