Delhi

StateCommission

CC/12/55

IQBAL BEGUM - Complainant(s)

Versus

OMAXE & ANR. - Opp.Party(s)

18 Nov 2019

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments :18.11.2019

Date of Decision : 22.11.2019

COMPLAINT NO.55/2012

In the matter of:

Mrs. Iqbal Begum,

W/o. M. Naseem Siddiqui,

R/o. 3165, Kucha Tara Chand,

Delhi Gate, Darya Ganj,

• ………Complainant

Versus

           

1. Omaxe Ltd.,

Through its Managing Director,

Building No.7, Kalkaji,

New Delhi.

 

2. M/s. Nike India Pvt. Ltd.,

701. Millennia Tower-B,

Murhy Road, Ulsoor,

Bangalore-560008.                                                       ……..Opposite Parties

 

 

CORAM

Hon’ble Sh. O. P. Gupta, Member (Judicial)

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                      Yes/No

2.      To be referred to the reporter or not?                                                                                                           Yes/No

Shri O.P. Gupta, Member (Judicial)

JUDGEMENT

1. This order will dispose of application dated 22.02.19 moved by complainant for amendment/ substitution of relief. The application has been filed in pursuance of order dated 11.05.18 passed by Hon’ble Supreme Court in SLP (Civil) No.34635 of 2015. The Hon’ble Supreme Court permitted the complainant to move an appropriate application within 3 weeks. It was directed that in case such application is moved, the State Commission would examine the same subject to any objection which may be raised  by the respondent. Since the application could not be moved within 3 weeks, the complainant moved application for extension of time which was registered as IA no.15069/2019 and was allowed vide order dated 18.02.19. The time was extended upto one week from said order.
2. It is necessary to give a brief background of the case so as to appreciate the application effectively. The complainant filed a complaint for refund of Rs.77,23,843.67/- being  price of the commercial space with interest @15% p.a.,  Rs.15,000/- per day from 05.05.08 to the date of payment as compensation for harassment, inconvenience, frustration and mental agony  and Rs.1 lakh as cost of  legal notice and other expenses. The said complaint was resisted by OP by pleading that the complainant booked commercial space vide agreement dated 05.05.08, the construction was to be completed within 30 months i.e. by December, 2010. OP completed construction by Feb. 2010, completion certificate dated 10.03.10 was issued. OP offered possession/ fit out and demanded balance payable. Complainant failed for the same. Thus she rendered herself liable to pay holding charges apart from balance sale consideration and other charges. A sum of Rs.11,72,797/- was due as on 19.03.12. The complainant also failed to pay maintenance charges. Addendum dated 05.05.08 was signed according to which OP was to pay assured monthly return of Rs.77,236.66 per month till offer of possession/ offer of fit out whichever was earlier. OP-1 paid return amount of Rs.17,81,506/- after deducting TDS. The OP was liable to pay return amount till 22.02.10 but as a good will gesture it made  payment dated 31.03.10. The OP took objection that complaint was time barred, complainant was not consumer. The property was commercial in nature and complainant invested with a view to earn profit by way of renting out the commercial space, it was not meant for  self employment. This Commission had no jurisdiction (territorial and pecuniary) to try and entertain the complaint. Amount of compensation claimed was more than the pecuniary limit of this Commission.
3. This Commission allowed the complaint  vide order dated 12.11.13 and directed the OP to pay Rs.69,31,411/- with  interest @9% p.a.  from 05.05.08 till the date of payment and Rs.25,000/- as cost of litigation.
4. The OP filed appeal against the said order which was registered as FA no.887/13. The said appeal was accepted  vide order dated 16.05.14. it was observed in para-5 of the judgement that complainant claimed Rs.15,000/- per day from 05.05.08, complaint was filed in January, 2012, amount of compensation came to about Rs.3,97,00,000/- meaning thereby that complainant claimed total amount of about Rs.4,74,00,000/-. As per decision of NC in Country  Colonisers Pvt. Ltd vs. Preeti Kapoor I (2013) CPJ 387 pecuniary jurisdiction was to be decided in accordance with compensation prayed in the complaint and any order passed in a case in which the Commission has no pecuniary jurisdiction, is nullity in the  eye of law. The complainant was given liberty to file new complaint on the same cause of action before appropriate forum.
5. The complainant filed SLP before Hon’ble Supreme Court in which order dated 11.05.18 Supra was passed. Now the complainant wants to claim a lumpsum compensation of Rs.15 lakhs for harassment, inconvenience, frustration, deprivation and mental agony instead of Rs.15,000/- per day from 05.05.08 and claim Rs.5 lakhs towards cost of litigation expenses and other expenses instead of Rs.1 lakh claimed in the original complaint.
6. The OP has not filed any reply to the said application. But its counsel opposed the application by addressing arguments that complainant has claimed interest @15% p.a. on Rs.72,23,843.67 but she has not specified the date from which she has claimed the interest. In other words she has not specified  whether she is claiming interest from date of booking or date of filing the initial complaint or the date of filing amendment application. In case it is treated as interest from the date of booking, again the matter would be beyond the pecuniary jurisdiction of this Commission.
7. The counsel for complainant submitted only one  thing that amendment has been allowed by Hon’ble Supreme Court., The same was refuted by counsel for OP by submitting that Hon’ble Supreme Court has permitted application for amendment  to be moved and not allowed the amendment as such. He  urged that Hon’ble  Supreme court  directed this Commission to consider the application subject to objections raised by OP. The argument for counsel for OP seems to be well founded.
8. On merits I may mention that the complaint as it stands today is  beyond pecuniary jurisdiction of this Commission. This has been so held by Hon’ble National Commission also in order dated 16.05.14 Supra. That is why the appeal was accepted  and the complainant was given liberty to file new complaint on the same cause of action before appropriate forum.
9. The question which arises is whether this Commission can allow amendment in a case in which originally it has no pecuniary jurisdiction to bring the same within pecuniary jurisdiction of this Commission. This question is no more res integra in view of decision of National Commission in Inderjit Singh vs. Accord Land Developers 2016 SCC online NCDRC 175.  It was held that  if originally complaint was beyond jurisdiction, amendment cannot be  allowed.
10. Applying the said law the application for amendment is dismissed. The original complaint already stand dismissed by NC.
11. Copy of the order be sent to both the parties free of cost.
12. File be consigned to record room.

 

(O.P. GUPTA)                                                     

MEMBER (JUDICIAL)