Delhi

StateCommission

CC/464/2016

SHIVANI SHARMA - Complainant(s)

Versus

TDI INFRASTRUCTURE LTD. - Opp.Party(s)

HARISH CHANDRA

10 Oct 2017

ORDER

IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL, COMMISSION : DELHI

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

Date of Arguments :10.10.2017

Date of Decision :24.10.2017

Complaint No.464/2016

IN THE MATTER OF:

 

1. Smt. Shivani Sharma,

 W/o. Shri Aditya Sharma

 

2. Shri Aditya Sharma,

S/o. Shri S.K. Sharma,

Both Residents of D-201,

Upkari Apartments, Plot No.9,

Sector-12, Dwarka,

New Delhi-110075.                                                                                     ……Complainant s

 

                                                            Versus

M/s. TDI Infrastructure Ltd.,

Through its Managing Director,

UG Floor, Vandana Building,

11, Tolstoy Marg, New Delhi                                                                 ….Opposite Party

 

HON’BLE SH. O.P.GUPTA, MEMBER(JUDICIAL)

HON’BLE SH. ANIL SRIVASTAVA, MEMBER

1.     Whether reporters of local newspaper be allowed to see the judgment?                    Yes

2.      To be referred to the reporter or not?                                                                     Yes

Present:        Shri Navneet Kumar, counsel for the complainant.

                        Shri Ragvender Kumar, counsel for the opposite party.

 

PER  : SHRI ANIL SRIVASTAVA, MEMBER

          Alleging deficiency on the part of TDI infrastrurcture Ltd., hereinafter referred to as OP, Smt. Shivani Sharma and Shri Aditya Sharma, wife and husband, resident of New Delhi, for short complainants, have filed this complaint  before this Commission under Section 17 of the Consumers Protection Act 1986 (the Act) praying for relief as under:

a)      Refund of the entire payment made by the complainants towards the said floor, i.e. Rs.26,10,256/- (comprising of Rs.10,20,255/- (the amount paid by the complainants from their own funds) + Rs.15,90,001/- (loan amount, paid by the Bank to the OP which has entirely been repaid by the complainants as the said loan has been fore-closed)};   

b)      Refund of Rs.2,42,104/- paid by the complainants towards interest on the said loan amount till the said loan was fore closed, as aforesaid;

c)      Refund of Rs.10,000/- paid by the complainants to the Bank at the time of sanction of loan towards loan procession charges;

d)      Interest @12% per annum from the date of each payment received from the  complainants till the date payment;

e)      Rs.20 lakh towards deficiency of service and mental harassment and agony suffered by the complainants on account of delay in construction of the said floor;

f)       Cost of present complaint may also be granted to the complainants;

Any other relief, in addition to all the above reliefs to which the complainants are found entitled to.

Facts of the case are these.

The OP in the year 2009 came out with a new project at Kundali, Sonepat, Haryana by the name “TDI CITY” and the complainant, believing the assurances and advertisements of the OPs booked one floor in the said project and made an advance payment of Rs.3,50,000/- on 10.10.2009   and the OPs, acknowledging the payment, had allotted the complainant a customers I.D. no.KMF10369. Further payment, of an amount of Rs.4,45,000/-   as demanded, was made on 30.11.2009.

The complainant was thereafter allotted a flat no.B.50/26, Ground Floor, My Floor-I, Kundali, having approximately a Super area of 108.46 sq. mtr. situated in the said project. Further payment of Rs.1,47,962/- was  made on 19.03.2010  whereafter Independent Floor Buyers Agreement was executed on 16.04.2010 between the complainants and the OPs which indicated that the total sale consideration of the said flat was Rs.28,03,301/- inclusive of all the charges etc. Possession of the flat was agreed to be handed over by June, 2011.      

The complainant continued paying the amount as demanded from time to time. By September, 2010 total amount of Rs.25,42,963/- was paid to the OPs. The complainants were thereafter in constant touch with the OP to know the progress in the project and also to find the date by which the possession of the flat would be handed over. Since no progress was found even after waiting for three years, the complainant, drawing the attention of the agreement, sought the refund of the amount but all his efforts done in this behalf proved an exercise in futility.

In January, 2015 the OP, by making the final demand of Rs.50,000/- informed that the possession of the flat would be handed over by July, 2015. Even this demand of the OP was honoured by the complainant and the payment as sought for was made. But possession was not handed over despite encashing the amount. The complainant thereafter addressed a communication for possession of flat or in the alternate refund of the amount but his appeal could evoke no response. This was followed by legal notice but that also did not yield any results.   

Faced with this situation the complainant has filed this complaint. The OPs were  noticed and were directed to file written statement. 

The OPs in response thereto have filed an application under Section 26 of the Act  praying for the dismissal of the complaint on the following grounds:-

a)      This Commission lacks the jurisdiction to hear and dispose of this complaint owing to the fact that the amount claimed as indicated in para 23 of the complaint is Rs.1,47,59,622/- and that  being the position, relying on Section 17 of the Act, this Commission cannot hear this case; for want of pecuniary jurisdiction;

b)      The complainant having more than one house is an investor and not a consumer in which case he is not entitled to raise consumer dispute.

The  complainants have furnished their reply to the said application, emphatically stating that the complaint is very much maintainable in the State Commission and that there exists no hurdle from the point  of pecuniary jurisdiction as claimed in the application, since their relief is confined to refund of Rs.28,62,360/-  paid to the OP and compensation of Rs.20,00,000/- which amount if added makes a total of Rs.48,62,360/- which means less than Rs. One crore and if that be the case there exists no cloud on the pecuniary jurisdiction of this Commission hearing this complaint. Additionally he has prayed for interst at the rate of 21% which interest, according to him,  cannot be added for the purpose as the claim of interest and rate of interest would be determined by the Consumer Fora after looking into the facts of the case and that would be possible only at the stage of final disposal of the case. Infact the interest component would not be the determinant for pecuniary jurisdiction. They have also disputed the averments to the effect that they are investors and not consumers as they have booked the flat not for earning profit but for personal use and need.    

For the purpose of controverting the averments made by the OP regarding pecuniary jurisdiction of this Commission, reliance  has been placed by the complainant on the judgement passed by the State Commission, Chandigarh passed in C 11/2017 in the matter of Chhabra  Vs. M/s. Omaxe Chandigarh Extension Developers Pvt. Ltd., holding, based on the ratio of the judgment of the Hon’ble NCDRC in the matter of Surjit Singh Jhandwal  vs. M/s. Emaar MFG Land Pvt. Ltd. and another that the component of interest is not to be computed while determining pecuniary  jurisdiction. The Hon’ble  NCDRC in the matter Surjit Singh   (Supra) held as under :

“Now we will deal with another contention of the OPs that for want of pecuniary jurisdiction, it is not open to this Commission to entertain and adjudicate this complaint.  As per admitted facts, the complainant has sought refund of amount  paid i.e. Rs.48,95,264/- alongwith interest @12% p.e. from the respective date  of deposits;  compensation to the tune of Rs.5 lacs, for mental agony and physical harassment and cost of litigation to the tune of Rs.55,000/- . It is  argued by counsel for the OPs that if his entire claimed amount is added, alongwith interest claimed, it will cross Rs.1 crore and in that event it will not be open to this Commission to entertain and adjudicate this complaint, for want of pecuniary jurisdiction. To say so, reliance has been placed upon ratio of judgement of a  Larger Bench of the National Commission, in the case of Ambrish Kumar Shukla (Supra). IN the said case, it was specifically observed that when determining pecuniary jurisdiction of the Consumer Foras, it is the value of the goods and services, which has to be noted and not the value of deficiencies claimed. Further, that interest component also has to be taken into account, for the purpose of determining pecuniary jursidction.

In the first blush, if we look into the ratio of the judgement, referred to above, it appears that this Commission will not have pecuniary  jurisdiction  to entertain this complaint. However, on deep analysis, we are going to differ with the argument raised by the counsel for the OPs, judgement in the case of Ambrish Kumar Shukla (Supra)  was rendered by three Jhudges Bench determining pecuniary jurisdiction of the State Commission/ Consumer Foras, interest is to be added with other relief claimed or not, came up for consideration, before the three Judges Bench of the National Commission in Shahbad Cooperative Sugar Mills Ltd. vs. National Insuranc Co. Ltd. and Ors II 2003 CPJ 81 (NC).  

In Ambrish Kumar Shukla case U (Supra), ratio of judgement – Shahbad Cooperative Sugar Mills Ltd. (Supra) was not even discussed and considered. IN view of above proposition of law laid down by the Five Judges Bench in Central Board of Dawoodi Bohra Community & Anr.’s  and also three Judges Bench of the Supreme Court, in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. case (supra), it is not open to the Bench of same strength to give contrary findings, to the view already expressed by a Former Bench of same strength. In Shahbad Cooperative Sugar Mills Ltd. Case  (supra), decided on 02.04.2003, it was specifically observed by three Judges Bench  of the National Commission that when determining pecuniary  jurisdiction of the Consumer Foras, interest component claimed by the complainant/ party, is not to be added. We are of the considered view that in view or  proposition of law, as explained above, the view taken in Shahbad Cooperative Sugar Mills Ltd. case (supra), to determine pecuniary jurisdiction without taking interest claimed, will prevail. As such, in the present case, we are not looking into the interest claimed by the complainant, when determining pecuniary jurisdictions of this Commission. If the interst part is excluded, the amount claimed in the relief clause fell below Rs.1 crore and above Rs.20 lakhs. Hence, this Commission has pecuniary jurisiction to entertain and decide the present complaint. In view of above, the objection raised by the OPs, in this regard, being devoid of merit, must fail and the same stands rejected.”

 

          However the NCDRC in the subsequent  case, in the case of Ambrish Kumar Shukla & Ors vs. Ferrous Infrastructure Pvt. Ltd. decided on 07.10.2016 in CC  97/2016 has held that interest has to be added for computing the pecuniary jurisdiction. In Para 14 of the judgement, while answering and adjudicating the issue no. II, the NCDRC is pleased to hold as under:

“….. Therefore in view of the provisions contained in Section 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 pecuniary jurisdiction.

          From the above it is apparent that there exists two judgments, both by the Hon’ble NCDRC, having equal number of judges and both on one subject, but both at variance inasmuch as the one pronounced earlier (Surjit Singh Jhandwal) supra, holds that interest is not to be counted while determining pecuniary jurisdiction, while the one pronounced later (Ambrish Shukla) supra, holds that the interest has to be counted for the purpose. The ld. Counsel for the complainant argued  that the orders pronounced earlier may have to be followed since the subsequent judgment has been dealt with in the case of Smt. Shruti Chhabra (Supra).

          The point for consideration is which judgement is to be followed for the disposal of case at hand. For this purpose we have examined various judgements quoted hereinafter to arrive at a conclusion.

Prakash Amichand Shah Vs. State of Gujrat & Ors. AIR 1986 SC 468.  

A decision ordinary is a decisions on the case before the court while the principle underlying the decision would be binding as  a precedent in a case which comes up for decision subsequently. Hence while applying the decision to a later case, the court which is dealing with it  should carefully try to ascertain the true principle laid down by the previous decision. A decision often takes its colour from the questions involved in the case in which it is rendered. The scope and authority of a precedents should never be expanded unnecessaryily beyond the needs of a given situation.

Krishna Kumar Vs. UOI & Ors. : JT 1990 (3) SC 173

The doctrine of precedents, that is, being bound by a previous decision, is limited to the decision itself and as to what is necessarily involved in it. It does not mean that this court is bound by the various  reasons given in support of it, especially when they contain “prepositions wider than the case itself required”.

In other words, the enunciation of the reason or principle upon which a question before a court has been decided is alone binding as a precedent. The ratio decided is the underlying principle, namely the general reasons or the general ground upon which the decisions is based on the test or abstract from the specific peculiarities of the particular case which give rise to the decisions. The ratio decidendi has to be ascertained by an analysis of the facts of the case and the process of reasoning involving the major premise consisting of a pre existing rule of law, either statutory or judge made and a minor premise consisting of the material facts of the case under immediate consideration. If it is not clear, it is not the duty of the court to spell it out with difficulty in order to be bound by it.

          Similarly the Hon’ble Punjab & Haryana High Court in the matter of Poonam Vs. Rajbir Rawal, decided on 23.01.2013, reported in 2013 SCC online D&H 1505, held in para 25 of the judgement as under:-

          We would also like to point out the approach of different  High Courts which is consistent and uniform, viz., in such a situation the High Court is not bound to follow the one which is later in point of time, but may follow the one which according to it, is better in law, This is so held by a Full Bnch of this Court in Indo-Swiss Time Ltd. vs. Umarao, AIR 1981, Punjab & Haryana 213. The Madras High Court in R. Rama Subbnarayalu v. Rengammal, A.I.R. 1962 Madras 450, made the following pertinent observations:

          “Where the conflict is between two decisions pronounced by a Bench consisting of the  same number of judges, and the subordinate Court after a careful examination of the decisions came to the conclusion that both of them directly apply to the case before it, it will then be at liberty to follow that decision which seems to it more correct, whether such decision be the later or the earlier one”.

 

          In yet another case, in the matter of M.M. Yaragatti vs. Vasant & Ors, decided on 10.04.1987, reported in AIR 1987 Karnataka 186, the Hon’ble High Court in para 23 held as under:

          Coming to the Special Leave Petition in Krishnadas Bhatija’s case, it is correct that that petition arose out of the provisions of the Karnataka Rent Act. It was sought to be argued by the learned counsel for the respondents that the said decision was rendered without issuing notice to the respondents and that the same did not lay down any law. It was also submitted that in view of the Full Bench decision of this Court in Govindanaik G. Kalaghatgi v. West Patent Press Co, Ltd,, AIR 1980 Kant 92, if there is any conflict between the decision of co-equal Benches of the Supreme Court, then the later view should be followed. In this view of the matter, with respect, we have to follow the view in Aundal Ammal’s case (AIR 1987 SC 203) which is later in point of time.

No Raja Gopalan vs. UOI : Full Bench Order dated 22.01.1996 in OA 64/93 – Madras Bench of CAT. Where there is conflict between two decisions of the Supreme Court  rendered by co-equal benches – the latter of the two decisions should be followed only if in that  decision a reference has been made to the earlier decision and a different conclusion has been reached. If, however, there are two parallel judgments of the Supreme Court on the same issue meaning thereby  that the latter decision was rendered without knowledge of the earlier decision and the two judgments cannot be reconciled or distinguished that judgment has to be chosen and followed as the precedent which appears to the tribunal to be better in point of law or to set the law more elaborately and accurately regardless whether it is the earlier or later judgment.

Applying the ratio of the judgements referred to above, we may have to follow the law laid down, keeping  the facts of the case into account, the one which appears to lay down the correct position for the situation in hand.

          Coming back to the facts of the case, respectfully disagreeing with the judgement of the State Commission, Chandigarh, we are of the considered view that the interest may have to be added to  reach to a conclusion regarding pecuniary jurisdiction as per the ratio in Ambrish Shukla’s case. If that be the case we would be handicapped, for want of jurisdiction, to hear this case as the total amount in the given case, as averred in para 23, exceeds Rs. One Crore.

          At this stage we may advert to the provisions of Section 17(1)(a)(i) of Consumer Protection Act 1986 which says as  under:-

Section 17(1)(a)(i)

          Subject to the other provisions of the Act, the State Commission shall have jurisdiction – to entertain –

Complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees Rs.20 lakhs but does not exceed Rs. One Crore.

Compensation is in any case to be added to the value of good for determining pecuniary jurisdiction as contemplated in the Act. Interest cannot be ignored for the purpose, as apparently interest and compensation are the component of the same project. Infact as per the law settled both interest and compensation can,  be granted, depending on  the facts  of the case. In the event the deficiency of service is established, the sufferer in our view is entitled to both, interest for the delayed period and compensation for the harassment and mental agony caused to him  due to alleged deficiency. Their  Lordship in the matter of Bangalore Development Authority vs. Syndicate Bank – AIR 2007 SC 2198 – has held.

“………the complainant can be awarded the compensation in addition to the interest”.

 

The Hon’ble NCDRC while disposing of the complaint case no.213/2012 on 14.03.2016 in the matter of Vijay Kumar Arya vs. M/s. TDI Infrastructure Pvt. Ltd. passed following orders.

“In view of the above discussion the OP is directed to pay Rs.38,20,000/- alongwith interest @12% from the date of deposit by the complainant till the date of refund by the OP. The OP is further directed to pay Rs. One Lakh as compensation.”

Having regard to the facts and circumstances of the case and following the ratio  in the case of Ambrish Shukla (Supra) we find merit in the application filed by the opposite parties praying for dismissal of  the complaint on the ground  of pecuniary jurisdiction of this Commission and we order accordingly. Having allowed the application, we dismiss the complaint for want of pecuniary jurisdiction, granting liberty to the complainant to file the complaint before the Fora enjoying the jurisdiction therefor.

Ordered accordingly.

Let a copy of the order be forwarded to the  parties to the case free of  cost as statutorily  required.

          File be consigned to records.

(ANIL SRIVASTAVA)                                                  (O.P.GUPTA)

MEMBER                                                                     MEMBER (JUDICIAL)Nk