DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016
Case No. 39/2020
1. Mr. Rakesh C. Kohli
D-7, 7390, Vasant Kunj,
South West Delhi
Delhi-110070.
2. Mrs. Rajni Kohli
D-7, 7390, Vasant Kunj,
South West Delhi,
Delhi-110070 ….Complainants
Versus
T.G. Buildwell Pvt. Ltd.
Having Registered Office at:
M1025A, The Magnolias,
Tower No.10, DLF Golf Links,
Phase-V, Gurgaon
Haryana-1220096.
Also Corporate Office at:
Tivoli Garden Hotel and Resort,
Chattarpur Mandir Road,
New Delhi-110030
Also at:
Khasra No.646 to 653,
Main Chattarpur Mandir Road,
Chattarpur, New Delhi-110030. ….Opposite Party
Date of Institution : 03.02.20 Date of Order : 03.03.20
Coram:
Ms. Rekha Rani, President
Ms. Kiran Kaushal, Member
Ms. Rekha Rani, President
ORDER
- Mr. Rajesh C. Kohli and his wife Ms. Rajni Kohli (in short the complainants) filed the instant complaint under section 12 of the Consumer Protection Act, 1986 as amended up to date (in short the Act) pleading therein that they jointly purchased the residential Apartment in housing project namely ‘Tivoli Holiday Village’ situated in village Dharuhera, Tehsil and District Rewari, Haryana which project belongs to T.G. Buildwell Pvt. Ltd. (in short the OP). OP allotted flat No. TG-I/2B-304 to the complainants. The total consideration of the flat was Rs.47,50,000/- out of which complainants have paid Rs.12,75,000/- till date. Immediately after execution of Apartment Buyer Agreement dated 28.08.2008, OP lured the complainants for another scheme of Assured Return, of 15% per annum w.e.f. 15 days from the date of handing over the possession pursuant to completion of construction of the said unit irrespective of whether the said unit is let out or not.
- OP issued a communication dated 25.03.2010 to the complainants thereby demanding an amount of Rs.5,65,250/-. However, OP never started the construction on the project. Complainants visited the site several times to enquire about status of construction in respect of the said project but they were unable to know the exact date of possession of the apartment. OP vide their email dated 24.01.2013 admitted that the project is delayed. Even after expiry of about 11 years complainants have neither shown nor delivered required sanctions & licenses and there is no substantial development work done by the OP at the site. Complainants sent a legal notice dated 09.08.2019 to OP demanding refund of Rs.12,75,000/- with interest @ 18 % per annum from the date of deposit till date. OP did not reply to the same. Hence the instant complaint seeking direction to OP to refund Rs.12,75,000/- to the complainants alongwith pendent-elite and future interest @ 18% per annum from 26.08.2008 till the date of payment and Rs.5,00,0000/- as compensation for causing deficiency in service alongwith litigation cost.
- The case is at admission stage.
- We have seen the file and heard Ms. Monika Adv. for the complainant regarding pecuniary jurisdiction of this Forum to adjudicate the matter.
- Learned counsel for complainant has referred to following judgments of the Hon’ble National Commission in support of her contention that the matter falls within pecuniary jurisdiction of this Forum:
(i) Sudhir Kumar Sain vs. Ireo Fiveriver Pvt. Ltd., in CC No. 1351 of 2017 decided on 07 Dec. 2017.
(ii) Ratesh Lohan vs Ireo Fiveriver Pvt. Ltd., in CC No. 1350 of 2017 date of decision 07 Dec. 2017.
(ii) In Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd. in CC No. 97 of 2016 date of decision 07.10.2016.
- We may refer to two members Bench order of the National Commission in Gurmukh Singh vs. Greater Mohali Area Development Authority & Anr. R.P. No.3496 of 2017 dated 09.02.2018. The relevant part of the said judgment is reproduced as under:-
2. The petitioner/complainant Gurmukh Singh submitted his application No. 8450 for allotment of a category ‘A’, Type – I apartment with the opposite party (OP) Greater Mohali Area Development Authority and also made an initial deposit of ₹3,70,000/-. The complainant was successful in the draw of lots taken out by the OP and a letter of intent for allotment of a residential apartment, showing the total price and payment schedule etc. was issued to him. The complainant deposited a further sum of ₹7,40,000/- to the OP and in this manner, made a total deposit of ₹11,10,000/- with them. It is stated that as the financial position of the complainant was not good, he made a request in January 2013 for refund of the amount deposited by him. It has been stated in the consumer complaint that the complainant received a partial refund only of ₹5,96,091/- through cheque dated 30.09.2015 and in this way, he suffered a net loss of ₹4,76,910/-. The complainant filed the consumer complaint in question, seeking refund of the said amount, alongwith another ₹1 lakh as cost of borrowing the funds in question. The complainant sought directions to the OPs to pay him a sum of ₹5,76,910/- alongwith compensation of ₹2 lakh and also the litigation cost. When the case came-up for hearing before the District Forum, it was ordered on 01.06.2017 that the total agreed sale consideration of the property was ₹37lakh and hence, considering the value of the goods or services, the case did not fall within the pecuniary jurisdiction of the District Forum. The District Forum ordered return of the complaint to the complainant, relying upon the decision of this Commission in “Ambrish Kumar Shukla & Ors. vs. Ferrous Infrastructure Private Limited [CC/97/2016 & allied matters decided on 07.10.2016]” and granted liberty to him to approach the appropriate consumer fora for the redressal of his grievance. Being aggrieved against the order of the District Forum, the complainant filed appeal before the State Commission. However, the said Commission, also relying upon the order passed by a larger Bench of this Commission in “Ambrish Kumar Shukla & Ors. vs. Ferrous Infrastructure Private Limited (supra)”, held that the total value of the goods or services was to be taken into consideration for determining the pecuniary jurisdiction of a particular consumer fora. The State Commission held that there was no merit in the appeal and the same was ordered to be dismissed. Being aggrieved against the order of the State Commission, the petitioner/complainant is before us by way of the present revision petition.
……
5. In the case, “Ambrish Kumar Shukla & Ors. vs. Ferrous Infrastructure Private Limited [supra]”, the following reference, interalia, had been made for consideration of a larger bench of this Commission :-
“(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.”
6. A three-Member Bench of this Commission in their order on 07.10.2016, stated as under on the issue referred above:-
“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 the service which is to be considered for the purpose of determining the pecuniary jurisdiction.”
7. A plain reading of the order made by the larger Bench of this Commission indicates that the total value of goods or services provided, is to be taken into consideration for determining the pecuniary jurisdiction of a consumer fora and not the partial amount deposited by an allottee. The State Commission as well as the District Forum have rightly taken the view that in the instant case, the total price of the flat was ₹37 lakh, as was evident from the letter of intent for allotment issued by the OPs. Considering the total value of the flat, the matter did not lie within the pecuniary jurisdiction of the District Forum. It is evident, therefore, that the orders passed by the consumer fora below are based on a correct interpretation of the orders passed by the larger Bench of this Commission as well as the provisions of law as contained in section 11(1) of the Consumer Protection Act, 1986.
- The same question had come before National Commission in Rajkishore V/s TDI Infrastructure Ltd III (2017) CPJ 155. In that case total sale price of the property was above Rs. 20,00,000/- but complainant sought refund of Rs. 8,06,300/- charged in excess by the OP. Complaint was filed before State Commission which was dismissed vide order dated 16.02.2016 on the issue of pecuniary jurisdiction with liberty to file fresh complaint before District Forum. The complainants went in appeal contending that consumer dispute involved property whose value was above Rs. 20,00,000/-(Rs. Twenty Lacs only) National Commission allowed the appeal and following Ambrish Kumar Shukla (supra) observed that even if there was a small deficiency in the service availed by the complainant the total value of the said service is taken into consideration for the purpose of determining pecuniary jurisdiction.
- In another case titled Daimler Financial Services India Vs Laxmi Naryan Biswal in First Appeal no. 1616 of 2017 decided on 30.08.2017 by Hon’ble National Commission judgment in Ambrish Kumar Shukla (supra) was again referred and following relevant part of the said judgment was quoted:
“Reference order dated 11.8.2016 Issue No. (i) 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 lakh, 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 lakh, the complaint would have to be filed before this Commission, the value of the services itself being more than Rs.1.00 Crore.”
- The facts of the case in Daimler Financial Services India (supra) were that the complainant had purchased two Hywa Trucks with the financial help of Daimler Financial Services India by taking loan of Rs. 23,55,945/- for each vehicle. Out of the total loan of Rs. 23,86,995/- for each vehicle , the complainant had already paid the entire loan amount and had agreed to pay the full and final settlement on 05.04.2016 by making payment of Rs. 14,70,000/- and had received the possession of the vehicle on the same day with further condition that the complainant should withdraw the writ petition bearing no. WP (C ) 2307 of 2016 from the High Court of Odisha. Prior to liquidation of loan / expiry of the agreement the Daimler Financial Services India had seized the vehicle for which the complainant had approached the High Court of Odisha by way of filing a Writ Petition. The High Court had issued notice and the Daimler Financial Services India after receiving the notice had called the complainant for a settlement. As per the said settlement the complainant had already paid a sum of Rs. 14,70,000/- towards full and final settlement outstanding in respect of both the vehicles. Though the complainant in pursuance to the aforesaid settlement had paid the entire amount towards liquidation of loan and had withdrawn the Writ Petition before the High Court of Odisha, the Daimler Financial Services India taking advantage of the situation had not issued NOC to the complainant. The complainant hence filed a Consumer Complaint before the Odisha State Consumer Disputes Redressal Commission, Cuttack for not granting NOC which was termed illegal deficiency in service and unfair trade practice and for directing Daimler Financial Services India to issue NOC in respect of the two vehicles. The State Commission admitted the consumer complaint which was challenged before the Hon’ble National Commission. The Hon’ble National Commission observed that :
“ Counsel for the appellant has admitted that the respondent/ complainant had taken loan of Rs. 47.74 Lakh, the cost of service and compensation asked for is Rs. 95,000/-. Hence the aggregate value of the cost of service hired or availed of and the compensation claimed by the complainant certainly falls within the pecuniary jurisdiction of the State Commission”.
10. In Jivitesh Nayal & Anr. vs M/S. Emaar Mgf Land Limited Case No. 34 of 2015 decided on 02-11-2017 and in Rakesh Mehta vs Emaar Mgf Land Limited Case No. 653 of 2015 decided on 16.10.2007 the National Commission following Ambrish Kumar Shukla (supra) observed as under:
“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 complaint, exceeds Rupees One Crore. As held by a Three-Members Bench of this Commission in CC No.97 of 2016 Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd., decided on 07.10.2016, the value of services in such cases, means the sale consideration agreed to be paid by the flat buyer to the builder. The following view was taken by this commission in CC/198/2015 Dushyant Kumar Gupta Vs Today Homes & Infrastructure Pvt. Ltd. and connected matters, decided on 31.01.2017.’’
11. Accordingly since the value of the flat is Rs.47,50,000/- it is beyond the pecuniary jurisdiction of this forum, Complaint be returned to the complainant to be presented before the appropriate Forum having jurisdiction within 4 weeks of receipt of certified copy of this order.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 03.03.2020
