Haryana

Sonipat

CC/296/2015

Sunny Gupta S/o S.N. Gupta - Complainant(s)

Versus

Rangoli Builtech Pvt. LTd. - Opp.Party(s)

Vikas Deep

30 Mar 2017

ORDER

 

Copy of Order dated : 30.03.2017

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SONEPAT.

 

                                Complaint No.296 of 2015

                                Instituted on:20.08.2015

                                Date of order:30.03.2017

 

Sunny Gupta son of SN Gupta, resident of E40, Industrial Area, Sonepat.

                                           ...Complainant.

 

                        Versus

 

 

1.Rangoli Builtech Pvt. Ltd., Regd. Office 1105, 11^th Floor, Akashdeep Building, New Delhi-01.

2.M/s Taneja Developers and Infra. Ltd. 9, Kasturba Gandhi Marg, New Delhi-01.

                                           ...Respondents.

 

COMPLAINT UNDER SECTION 12 OF

THE CONSUMER PROTECTION ACT,1986

 

Argued by: Sh. Vikas Deep Adv. for complainant.

           Sh. Atul Aggarwal, Adv. for respondent no.1.

           Sh. VK Tyagi, Adv. for respondent no.2.        

 

BEFORE-  NAGENDER SINGH, PRESIDENT.

        SMT.PRABHA WATI, MEMBER.

        J.L. GUPTA, MEMBER.

 

O R D E R

 

          First of all, we would like to mention here that earlier the present complaint was dismissed by this Forum vide order dated 16.02.2016. Aggrieved against the order dated 16.02.2016 passed by this Forum, the complainant preferred First Appeal no.306, Instituted on 11.04.2016, decided on 17.08.2016 by the Hon’ble State Commission, Haryana, Panchkula, vide which, the appeal of the complainant was accepted and order dated 16.02.2016 passed by this Forum was set-aside and this Forum was directed to entertain the complaint and decide the same in accordance with law.  The above said order passed by the Hon’ble State Commission was received in this Forum on 04.10.2016 and the file of the present complaint was received back from the Hon’ble State Commission on 07.10.2016.

 

2.            Complainant has filed the present complaint against the respondents that the respondent no.1 floated the scheme for allotment of plot of various sizes in residential colony TDI Green in Sector 16, Sonepat.  The respondent no.2 also is the beneficiary of the licensed colony and managing the affairs of respondent no.1.  The respondents obtained the licence no.65 to 98 of 2005 dated 5.8.2005 over an area of 113.363 acre for setting up a residential plotted colony from the office of DTCP Haryana. A residential plot of 700 sq. yards was got booked by  M/s Oberoi Optics International Pvt. Ltd. on 28.10.2005. The total cost of the plot was Rs.42 lacs.  The booking holder deposited the initial booking amount of Rs.8,40,000/-. The entries and booking rights were duly endorsed in favour of the complainant.  The respondents allotted the residential plot no.B-42 to the complainant  and the total amount of Rs.45,42,700/- is lying deposited with the respondents. The respondents getting received the huge amount did not start any development and thus, both the respondents are liable for the delay in development and deficiency in service and still the respondents have not shown any keenness to carry development work on the site in question.  The project could not be completed  in the stipulated time and the delay in possession has caused the loss to the complainant and in this way, the respondents are liable to pay compensation in the shape of interest at the rate of 18% per annum on the amount deposited till possession of the plot. So, the complainant has come to this Forum and has filed the present complaint for seeking relief to direct the respondents to hand over the actual physical possession of the plot no.B-42 in TDI Green Sector 16 Sonepat measuring 700 Sq. yards and further to pay the interest on the amount lying deposited with the respondents.

3.        The respondents no.1 and 2 appeared. The respondent no.1 only has filed their written statement.

          The respondent no.1 in its written statement has submitted that this Forum has no pecuniary jurisdiction to entertain the present complaint as the complainant admittedly has made a payment of more-than Rs.20 lacs.  On the request of the respondent no.1 for the grant of licence for the development of a residential plotted colony, a letter of intent dated 17.12.2004 was issued by the Distt. Town and Country Planning, Haryana.  The answering respondent wrote letter dated 2.8.2008 to the Director Town and Country Planning, Haryana that delay in the development of the colony had been caused for the reasons beyond the company’s control i.e. due to delay in exact demarcation and discrepancy in the earlier sanctioned layout plan of the land by the authorities. Due to reduction made by DTP Haryana of an area measuring 7.70 acres, the licensed area of the colony was decreed from 113.363 acres to 105.663 acres.  This necessarily required appropriate changes in the numbering, location and cancellation of allotment of plots.  On being compelled to resort to cancellation of allotments because of reduction of the licensed area, the respondent no.1 supposed to act in a reasonable, just and fair manner. The impact of reduction of licensed area had to be absorbed and its burnt was to be borne firstly by those who were defaulters in making the payment of installments or in complying with other requirements rather than those who had not made any such default.  License of the above claimed land bearing no.LC/572/JE(S)2012/11978 granted by Director, Town & Country Planning, Govt. of Haryana stood cancelled vide letter dated 9.7.2012. Later-on the appeal filed by the respondent no.1, the appellate authority had remanded back to the matter for fresh adjudication and ultimately the cancellation of the license was revoked and was renewed vide letter dated 27.11.2015. The complainant is not entitled for any interest or enhanced cost of construction or any compensation.  Thus, prayed for the dismissal of the present complaint.

          Sh. VK Tyagi  Adv. has made a statement on behalf of the respondent no.2 that this project belongs to Rangoli Buildtech Pvt. Ltd. and TDI Ltd. has no concern with this project.

4.        We have heard the arguments advanced by the ld. Counsel for both the parties at length and we have also gone through the entire relevant material available on the case file carefully & minutely.

           Ld. Counsel for the complainant has submitted that the complainant has deposited Rs.45,42,700/- with the respondents.  But inspite of this, the respondents did not start any development and thus, both the respondents are liable for the delay in development and deficiency in service & still they have not shown any keenness to carry development work on the site in question.  The project could not be completed  in the stipulated time and the delay in possession has caused the loss to the complainant.

          In support of his contention, he has relied upon the order dated 8.7.2013 passed by the Hon’ble National Commission in Revision Petition NO.1480 of 2013 titled as Jitender Singh Phor Vs. TDI Greens.

          Ld. Counsel for respondent no.1 has also submitted that due to reduction made by DTP Haryana of an area measuring 7.70 acres, the licensed area of the colony was decreed from 113.363 acres to 105.663 acres.  This necessarily required appropriate changes in the numbering, location and cancellation of allotment of plots.  On being compelled to resort to cancellation of allotments because of reduction of the licensed area, the respondent no.1 supposed to act in a reasonable, just and fair manner. The impact of reduction of licensed area had to be absorbed and its burnt was to be borne firstly by those who were defaulters in making the payment of installments or in complying with other requirements rather than those who had not made any such default.  License of the above claimed land bearing no.LC/572/JE(S)2012/11978 granted by Director, Town & Country Planning, Govt. of Haryana stood cancelled vide letter dated 9.7.2012. Later-on the appeal filed by the respondent no.1, the appellate authority had remanded back to the matter for fresh adjudication and ultimately the cancellation of the license was revoked and was renewed vide letter dated 27.11.2015.

          Ld. Counsel for the respondent no.l has submitted that this Forum has no pecuniary jurisdiction to entertain the present complaint as the complainant admittedly has made a payment of more-than Rs.20 lacs i.e. he has paid Rs.45,42,700/- approximately. The respondent no.1 is ready and willing to hand over the possession of the plot after the completion of the development as the licence has been renewed or in the alternative the respondent no.1 is ready to refund the amount paid by the complainant. The total cost of the plot is Rs.52,99,700/-.

 

          We have perused the order dated 17.8.2016 passed by the Hon’ble State Commission, Haryana, vide which, the earlier order passed by this Forum was set aside by the Hon’ble State Commission, Haryana and it was directed to this Forum to decide the case afresh in accordance with law.

 

          In the order dated 17.8.2016, the Hon’ble State Commission, Haryana, Panchkula in para no.12 has mentioned that:-

          “A flat or a parcel of land or a house cannot be deemed to be goods because the ‘goods’ can only be moveable property. The definition of ‘goods’ given under the Sales of Goods Act has been adopted under Section 2(1)(h)(i) of the Act. In general law, it is the Transfer of Property Act, which deals with sale/transfer etc. of immoveable property.  Since a plot of land is not a ‘goods’ its total value cannot be reckoned for deciding the pecuniary jurisdiction where its possession and compensation are claimed”.

          In para no.13, it is mentioned that situation shall ofcourse be different when claim relates to refund etc. of the value of the plot but when allegations are that of delay etc. in delivery of possession, it will be simply a case of deficiency in service.  The amount demanded as compensation for deficiency in service shall be the deciding factor for deciding the pecuniary jurisdiction.”

          The complainant by way of present complaint has sought the relief to direct the respondents to pay compensation in the shape of interest at the rate of 18% per annum on the amount deposited from the date of their respective deposits till possession of the plot with Rs.40 lacs on account of enhanced cost of construction.

          We have deep respect & regard for the orders of the Hon’ble State Commission, Haryana.

           But ld. Counsel for the respondent no.1 in support of his case has relied upon the case law i.e. order dated 22.2.2017 passed in First appeal no.280 of 2016 titled as Raj Kishore Vs. TDI by the Hon’ble National Commission and order dated 22.2.2017 passed in First appeal no.281 of 2016 titled as Tarun Aggarwal Vs. TDI by the Hon’ble National Commission and in the above said orders, it has been held by the Hon’ble National Commission that:-

          “Even if there was a small deficiency in service availed by the complainant, the total value of the said service is to be taken into consideration for the purpose of determining the pecuniary jurisdiction.  Therefore, the pecuniary jurisdiction lies with the State Commission and it is the State Commission to decide the complaint”.

          Ld. Counsel for the respondent no.1 has also relied upon the order dated 7.10.2016 passed in Consumer Case No.97 of 2016 titled as Ambrish Kumar Shukla and 21 others Vs. Ferrous Infra. Ltd.  wherein the Hon’ble Mr Justice DK Jain, President and Hon’ble Dr. BC Gupta, Member and Hon’ble Mr Justice VK Jain, Member have decided some different references which are reproduced below:-

“Vide order dated 24.5.2016 passed in CC No.97 of 2016 the following issues relating to the interpretation of Section 12(1)(c) of the C.P.Act. were referred, by a two members Bench of this Commission, to a larger bench for its decision:-

(i)Whether a complaint under section 12(1)(c) of the Consumer Protection Act filed on behalf of or for the benefit of only some of the numerous consumers having a common interest or a common grievance is maintainable or it must necessarily be filed on behalf of or for the benefit of all the consumers having a common interest or a common grievance against same person(s),

 

(ii)Whether a complaint under section 12(1)(c) of the Consumer Protection Act is maintainable, before this Forum, where the value of the goods or services and compensation, if any, claimed in respect of none of the allottees/purchasers exceeds rupees one crore,

 

(iii)Whether a complaint under section 12(1)(c) of the Consumer Protection Act is maintainable before this Commission, where the value of the goods or services and the compensation claimed in respect of an individual allottee exceeds rupees one crore in the case of one or more allottees but does not exceed rupees one crore in respect of other allottees,

 

(iv)Whether a complaint under section 12(1)(c) of the Consumer Protection Act is maintainable, in a case of allotment of several flats in a project/building, where the allotments/bookings/purchasers are made on different dates and or the agreed cost of the flat and/or the area of the flat is not identical in all the bookings/allotments/purchases.

Vide order dated 11.8.2016, passed in first appeal no.166 of 2016, first appeal no.504 of 2016 and first appeal no.505 of 2016, the followings issues were referred, by a single Member Bench of this Commission to the larger bench:-

 

(i)In a situation, where the possession of a housing unit has already been delivered to the complainants and may be, sale deeds etc. also executed, but some deficiencies are pointed out in the construction/development of the property, whether the pecuniary jurisdiction is to be determined, taking the value of such property as a whole, or the extent of deficiency alleged is to be considered for the purpose of determining such pecuniary jurisdiction,

 

(ii)Whether the interest claimed on such value by way of compensation or otherwise, is to be taken into account for determining the pecuniary jurisdiction of a particular consumer forum,

 

(iii)Whether the value of the goods or services and compensation, if any claimed is to be taken as per the original value of such goods, or service at the time of purchase of such goods or hiring or availing of such service, or such value is to be taken at the time of filing the claim in question,

(iv)In complaints, proposed to be filed under section 12(1)(c) of the Consumer Protection Act with the permission of Consumer Forum, whether the pecuniary jurisdiction is to be determined taking the value of goods or service for individual consumer, or the aggregate value of the properties of all consumers getting together to file the consumer complaint is to be taken into consideration,

(v)For filing consumer complaints under section 12(1)(c) of the Consumer Protection Act whether a group of co-op. societies could join hands to file a joint complaint,

(vi)Whether the term consumer given in section 12(1)(c) of the Act includes the term ‘person’  as defined in section 2(m) of the Act, meaning thereby that groups of firms, societies, association etc. could join hands to file the joint complaints under section 12(1)(c) of the Consumer Protection Act,

(vii)Many a time, it is seen that more-than one joint complaint are already pending in respect of one particular housing project. There is a view that while applying section 12(1)(c) of the Consumer Protection Act, only one of these complaints should be allowed to continue as a lead case and all other complaints should be dismissed and the parties in these dismissed complaints should be directed to become parties in the lead case. Whether the above view is correct or in such cases, all complaints should be clubbed and heard together.

Vide order dated 11.3.2016, passed in the aforesaid appeal, bench no.1 of this Commission, noticing a divergence of opinion amongst various benches of this commission, on the issue of pecuniary jurisdiction, referred the said issue raised in the aforesaid appeal, to a larger bench. The aforesaid issue however, is submitted in issue no.1 referred to the larger bench in First Appeal NO.166 of 2016.

Reference dated 11.8.2016

Issue no.(i)

It is the value of the goods or services, as the case may be, and not the value or cost of removing the deficiency in service which is to be considered for the purpose of determining the pecuniary jurisdiction.

 

Issue no.(ii)

The interest has to be taken into account for the purpose of determining the pecuniary jurisdiction of a Consumer Forum.

 

Issue No.(iii)

The consideration paid or agreed to be paid by the consumer at the time of purchasing the goods or hiring or availing of the services, as the case may be, is to be considered, alongwith the compensation, if any, claimed in the complaint, to determine the pecuniary jurisdiction of a consumer forum.

 

Issue no.(iv)

In a complaint instituted under section 12(1)(C) of Consumer Protection Act, the pecuniary jurisdiction is to be determined on the basis of aggregate of the value of the goods purchased or the services hired or availed by all the consumers on whose behalf or for whose benefit the complaint is instituted and the total compensation claimed in respect of such consumers.

Issue no.(v) & (vi)

A complaint under section 12(1)(c) of Consumer Protection Act can be instituted only by one or more consumers, as defined in Section 2(1)(d) of the C.P.Act. Therefore, a group of Co-op. Societies, firms, association or other society cannot file such a complaint unless such society etc. itself is a consumer as defined in the aforesaid provision.

 

Issue no.(vii)

 

More-than one complaints under section 12(1)© of the Consumer Protectoin Act are not maintainable on behalf of or for the benefit of consumers having the same interest i.e. a common grievance and seeking the same/identical against the same person. In case more-than one such complaints have been instituted, it is only the complaint instituted first under section 12(1)(c) of the C.P.Act, with the requisite permission of the Consumer Forum, which can continue and the remaining complaints filed under section 12(1)(c) of the Consumer Protection Act are liable to be dismissed with liberty to join in the complaint instituted first with the requisite permission of the Consumer Forum.

 

          In our view, the above said law of the Hon’ble National Commission is fully applicable to the case in hand because the complainant in the present complaint in para no.9  has admitted that the total amount of Rs.45,42,700/-  of the complainant is lying with the respondents and the complainant has claimed 18% interest on the said amount from the respective dates with Rs.40 lacs on account of enhanced cost of construction.

 

          In our view, the entire relief as claimed by the complainant exceeds the pecuniary jurisdiction of this Forum and this Forum has no power to go beyond the order dated 22.2.2017 passed by the Hon’ble National Commission in First appeal no.280 of 2016 titled as Raj Kishore Vs. TDI and First appeal no.281 of 2016 titled as Tarun Aggarwal Vs. TDI by the Hon’ble National Commission. 

 

          In our view, the above cited law of the Hon’ble National Commission is fully applicable to the case in hand because the complainant has admitted in the complaint that total cost of the plot was Rs.42 lacs and total amount lying deposited with the respondents against the plot comes to Rs.45,42,700/-.

 

          So, after taking into consideration the law of the Hon’ble National Commission dated 22.2.2017 as mentioned above, we have come to the conclusion that Distt. Forum has no jurisdiction to entertain complaint pertaining to the plot costing Rs.42,00,000/- or to give Rs.40 lacs on account of enhanced cost of construction with 18% interest on the amount of Rs.45,42,700/- from its respective dates.

 

          With these observations, findings and directions, the present complaint stands dismissed with no order as to costs.

          Certified copy of this order be provided to both the parties free of costs.

File be consigned to the record-room.

 

 

(Prabha Wati Member) (JL Gupta Member)     (Nagender Singh-President)

DCDRF, Sonepat.      DCDRF Sonepat         DCDRF, Sonepat.

 

Announced:  30.03.2017