Haryana

StateCommission

CC/20/2016

VEENA MALIK - Complainant(s)

Versus

SUN CITY PROJECTS PVT.LTD. - Opp.Party(s)

DEEPAK AGGARWAL

15 Mar 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA.

 

                                                Complaint No.20 of 2016

                                                       Date of Institution: 01.02.2016                  Date of Decision: 15.03.2016

 

Veena Malik wife of Sh.Anand Kumar Malik, presently resident of House No.1516, First Floor, Sector 34-D, Chandigarh.

…..Complainant

 

Versus

 

M/s Sun city projects Private Limited through  its Director having Group Housing Project at Sector 20, Panchkula, Haryana.

Regd. Office at LGF-10, Vasant Square, Plot-A Sector-B, Pocket-V, community Centre, Vasantkunj, New Delhi-110070 (India).

          …..Opposite Party

 

 

CORAM:             Mr. R.K.Bishnoi, Judicial Member.

                   Mrs.Urvashi Agnihotri, Member.                                    

 

For the parties:  Mr.Deepak Aggarwal, Advocate counsel for the complainant.

 

O R D E R

 

R.K.BISHNOI, JUDICIAL MEMBER :-

 

It is alleged by the complainant that she booked flat on 15.05.2008 with the complainant and was assured to deliver possession within two years from the date of booking.  She has deposited Rs.59,37,275/- till date but the possession is not delivered as yet. Buyers Apartment Agreement was signed by her under constrained circumstances on 20.07.2012 vide condition No.25 of that agreement the compartment was to be completed within two years from the said date. The O.Ps. be directed  to handover vacant possession of the apartment after the completion of development works, to pay interest @ 18% per annum from  15.05.2010 on the total amount deposited by her till the date of the possession, Rs. 17,87,000/- on account of the actual rent paid by her w.e.f. September, 2010 upto January 2016.  Besides compensation for mental agony and harassment to the tune of Rs.10/- lacs and litigation expenses as Rs.1,50,000/-.  As value of the flat was 49,98,500/- so this Commission is having pecuniary jurisdiction to entertain this complaint.

2.      At the time of admission learned counsel for the complainant argued that value of the flat is to be taken into consideration. 

3.      This argument is of no avail.  For the purpose of pecuniary jurisdiction this commission has clearly opined in Vinita Goyal Vs. M/s Unitech Limited III (2014) CPJ 139 (Har.)  that flat is not covered by the definition of goods and it’s value cannot be taken into consideration for the purpose of pecuniary jurisdiction.  For ready reference the relevant paras are reproduced as under:-

 

“7.               The Act was enacted with a view to providing better protection to the consumers. As is apparent, the word consumer denotes a person who buys the goods or avails the services yet the Act includes within its ambit the user of goods or services as well. Section 2(d) of the Act defines the term ‘consumer’ which is set out as under:-

 

Section 2(d) “consumer” means any person who—

1. buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
2. hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes and beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payments, when such services are availed of with the approval of the first mentioned person but not include a person who avails of such services for any commercial purpose,.

8.                A plain reading of the aforesaid Section makes it clear that the consumer is a person who either buys the goods or avails or hires the services and also a person who is user of such goods or services but such use is made with the approval of the first mentioned person. Needless to say, goods or services for commercial purpose or for resale have been excluded from the purview of the Act. Now what emerges from the provision is that a person is consumer either of goods or of services.

9.                Further Section 17 of the Act deals with the jurisdiction of this Commission. For facilitation, the same is reproduced as under:-

17. Jurisdiction of the State Commission:-(1) Subject to the other provisions of this Act, the State Commission shall have jurisdiction-

1. to entertain-

1. complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees twenty lakhs but does not exceed rupees one crore; and
2. appeals against the orders of any District Forum within the State; and

(b)     to call for the records and passed appropriate orders in any consumer dispute which is pending before or has been decided by any District Forum within the State where it appears to the State Commission that such District Forum has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in excercise on its jurisdiction illegally or with material irregularity.

(2)     A complaint shall be instituted in a State Commission within the limits of whose jurisdiction-

(a)     the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain; or

(b)     any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such case either the permission of the State Commission is given or the opposite parties who do not reside or carry on business or have a branch office or personally work for gain, as the case may be, acquiesce in such institution; or

(c)     the cause of action , wholly or in part, arises.

10.              A plain reading of Section 17 of the Act suggests that there is a fair scheme in the Act with regard to hierarchy of the consumer forums established under the Act. In respect of the goods or services and the compensation, the value of which does not exceed rupees twenty lakhs, the complaint shall lie before the District Forum whereas where the value of such goods or services and the compensation exceeds rupees twenty lakhs but does not exceed rupees one crore, the complaint lies before the State Commission and where the value of the goods or services and compensation is exceeding rupees one crore, the complaint is maintainable before the National Commission. The legislators were conscious of the fact that the Act deals with either the defect of goods or deficiency in service. So, ordinarily, where the value of goods which are for self consumption and not for resale or commercial purpose, is less than rupees twenty lakhs, the legislators wanted to confer jurisdiction upon the District Forum at the first instance but where the value of such goods or services exceeds such limit, the alternative jurisdictions were conferred.

11.              Now, dealing with the question formulated above, that is, whether the complaint is maintainable before this Commission or it was required to be filed before the District Consumer Forum. At the threshold, the complainant has to demonstrate whether he has come up before this Commission complaining of defect in goods or deficiency in service. If the grievance pertains to defect of goods, then the value thereof plus compensation shall govern the jurisdiction but if it is with regard to deficiency in service, the complainant has to assess the deficiency in service availed by him.

12.              In the instant case, the complainants are complaining of deficiency in service rendered by the opposite parties but when the jurisdictional point is raised the complainants put forth the price of flat, that is, Rs.17,93,750/- for making out jurisdiction of this Commission. It is to be noticed that the sum of Rs.17,93,750/- is the price of flat. The flat does not fall within the definition of ‘goods’. Section 2(i) of the Act states that ‘goods’ means goods as defined in the Sale of Goods Act, 1930. Section 2(7) of the Sale of Goods Act, 1930 which defines ‘goods’ is reproduced as under:-

“goods” means every kind of movable property other than actionable claims and money; and includes stock and shares, growing crops, grass, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale;

13.              In view of above, the irresistible conclusion  is that the complainants have invoked the jurisdiction of this Commission by counting the price of flat as price of service. For assessing the value of service, the price of flat cannot be counted because the flat is an immoveable property. That apart, the complainants have failed to show how the value of services rendered by the opposite parties is more than rupees twenty lakhs.

14.              It is repeated experience of the redressal agencies that the litigants inflate and enhance their claim of compensation to suit the jurisdiction, which they may choose to avail. It is obviously the bounden duty of the redressal agencies themselves to scrutinize the reasonableness of the monetary claim raised by the complainant. It is well settled principle of law that the computation alone does not conclusively govern the pecuniary jurisdiction of the redressal agencies under the Act.

15.              The valuation of the relief claimed in the complaint is manifestly and grossly inflated and there is every reason to believe that it has been purposely done to enable the complaint to institute the case before the State Commission.

16.              As regards the compensation, the same is required to be assessed in reference to the loss and injury suffered by the complainant. The complainants have failed to show as to how the value of the service and compensation exceeds rupees twenty lakhs. “

Buyers agreement was signed in the year 2012 and construction was to be completed within three years thereof, as mentioned as complainant.  Complainant is asking for interest and rent since the year 2012 just to enhance value for the purpose of pecuniary jurisdiction. The relief claimed seems to be highly exaggerated. It has been opined by Hon’ble National Commission in Indrani Chatterjee Vs. AMRI Hospitals in consumer complaint No.383 of 2013 decided on  07.11.2014 that if the relief claimed is “un-realistic”, “exaggerated” or “excessive” the consumer Fora can ask the complainant to amend the relief and file the complaint before appropriate Forum.  If complainant has unreasonably inflated the claim for exemplary damages for bringing complaint with the jurisdiction of this Commission the same can be rejected.  For ready reference relevant portion is reproduced as under:-

“There is no quarrel with the proposition that the question whether or not a claim made in a complaint is “unrealistic”, “exaggerated” or “excessive” is to be determined after the complainant has been given an opportunity to prove the case he has set up and establish his claim under various heads, but it has also been held that where ex-facie the claim made appears to be unusually high without any basis, as per the case set up in the complaint, a Consumer For a would be justified in declining to admit the complaint.  As regards the jurisdictional limitations of the For a below to award compensation more than what is claimed in the complaint, we feel that in view of the observations of the Hon’ble Supreme court in a recent decision in Balram Prasad & Ors. Vs. Kunal Saha & Ors. (2014) 1 SCC 384, the State Commission shall not be faced with any such handicap.

15.    A similar issue came up for consideration before this commission in Sujata Nath Vs. Popular Nursing Home & Ors. CC No.60 of 2011. Rejecting the contention of the complainant that the complainant was free to claim the compensation as per his own assessment, keeping in view the extent of the loss and the injury suffered by him, and that the complaint could not be disposed of at a preliminary stage on the ground that the claim was exaggerated, vide order dated 08.07.2011, the complaint was dismissed with a direction to the complainant to suitably amend her complaint and file the same before an appropriate Consumer forum.  The said order has been affirmed by the Hon’ble Supreme Court, vide an order dated 14.10.2011, in civil Appeal No.8642 of 2011.  A similar view as taken by this Commission in CC No.9 of 2010, which was dismissed on the ground that the complainant had unreasonably inflated the claim for exemplary damages for bringing the complaint with the jurisdiction of this Commission.”

4.      Taking into consideration every aspect, it is clear that the present complaint is not maintainable before this Commission.  When the complainant is not a consumer the complaint is not maintainable before District Forum.  When District Forum was not having jurisdiction to adjudicate upon this matter it is not supposed to go into the merits of the case because judgement without jurisdiction amounts to nullity as opined by Hon’ble National Commission expressed in Revision Petition No.317 of 1994 titled as Haryana Urban Development Authority Vs. Vipan Kumar Kohli decided on 19.01.1995.

5.      The complainant shall be at liberty to pursue matter before the competent Fora and may seek exemption/condonation of the time spent before the Consumer Fora in terms of judgment of the Hon’ble Supreme Court in Laxmi Engineering Works Versus PSG Industries Institute (1995) 3 SCC 583.

6.      Complaint is disposed of accordingly.

 

March 15th, 2016

Mr.Urvashi Agnihotri, Member, Addl.Bench

R.K.Bishnoi, Judicial Member Addl.Bench

S.K.