JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL)

The complainants in these matters are the allottees of residential flats in a project, namely Canary Greens, which the opposite party is developing in Sector 73 of Gurgaon. All of them were allotted one residential flat each in the aforesaid project and all of them entered into individual but identical agreements with the opposite party on different dates. As per clause 21 of the Agreements to Sell, the possession of the flats was to be delivered within 36 months of the execution of the agreement but the opposite party was also entitled to a grace period of six months for unforeseen delays beyond its control, including though not limited to delays in obtaining the Occupancy Certificate/Completion Certificate. The possession of the flats having not been offered to them, the complainants have approached this Commission by way of these individual complaints. All the complainants have sought possession of the flats allotted to them or in the alternative a ready to move apartment of identical size in a similar locality or payment of the current market rate of similar houses which is alleged to be Rs.10,000/- per sq.ft. as the second alternative. They are also seeking payment of rental value of the apartment and compensation in the form of interest @ 18% p.a. They are further seeking compensation for the delay in delivery of the possession, @ Rs.5/- per sq.ft. per month as per the agreements to sell executed with the opposite party. They are also seeking separate compensation for the mental agony and harassment alleged to have been caused to them on account of the deficiency on the part of the opposite party in rendering services to them, by not giving possession of the flats within the time stipulated in the agreements to sell.

2.      The complaints have been opposed on identical grounds. The opposite party has taken a preliminary objection that since the agreed sale consideration was not more than Rs.1 crore, this Commission lacks pecuniary jurisdiction to entertain the complaints. It is also alleged that the complainants having delayed the payment of the sale consideration, they are not entitled to seek specific performance of the agreement by claiming possession of the residential flats allotted to them. It is also alleged that the construction of the flats has been delayed on account of reasons beyond the control of the opposite party including the failure of the allottees to make timely payment of the sale consideration.

3.      The table appended herein below, according to the complainants,  shows the agreed sale consideration inclusive of service tax and VAT, agreed sale consideration exclusive of service tax and VAT and the committed date of possession as per the agreement to sell.

4.      The main question which arises for consideration in these complaints is as to whether this Commission possess the requisite pecuniary jurisdiction to entertain these complaints. As provided in section 21 of the Consumer Protection Act this Commission has jurisdiction to entertain the complaints where the value of the goods or services and compensation if any claimed exceeds Rs.1 crore. Though most of the complainants have claimed refund @ Rs.10,000/- per sq.ft. of the area of the flat, no credible evidence has been led by them to prove that the market value of a flat similar to the flat allotted to them and in the same or a comparable locality was Rs.10,000/- or more on the date these complaints were instituted. No price list of any developer in respect of residential flats in the same or a comparable locality with identical or comparable specifications has been produced by them, in the absence of a credible evidence, it would be difficult to accept the bald statements of the complainants as regards the market value of a similar flat in the same or a comparable locality, on the dates these complaints were instituted. Therefore, invocation of the pecuniary jurisdiction of this Commission on the basis of the aforesaid alleged market value of the similar flats is highly misplaced and cannot be entertained.

Though ordinarily the pecuniary jurisdiction is to be determined on the basis of the averments made in the complaint, this Commission will not be justified in entertaining the complaints based upon the allegations which are ex-facie untenable and where the claim is found to be highly inflated, fanciful and exaggerated, made only with a with view to bring the matter within the pecuniary jurisdiction of a particular consumer forum. The scheme of the Consumer Protection Act, which requires a consumer complaint with pecuniary value of upto Rs.20 lakhs to be instituted before a District Forum and the complaints with a pecuniary value of more than Rs.20 lakhs and upto Rs.1 crore before the State Commission, cannot be allowed to be bypassed, by entertaining highly exaggerated and wholly unfounded claims.

5.      This Commission has in the past granted compensation in the form of interest paid Rs.18% per annum in the cases where refund has been allowed and compensation in the form of interest @ 12% per annum in the cases where possession of the house/plot has been directed. Therefore, a claim for refund by adding the agreed sale consideration to compensation in the form of simple interest @ 18% per annum from the date of each payment till the date of filing of the complaint cannot be said to be highly exaggerated or fanciful and made only with a view to invoke the jurisdiction of this Commission, even if this Commission eventually grants a lesser compensation to the complainant. Similarly, where the complainant seeking only the possession of the house but there is no prayer for refund of the payment made by him to the builder, the value arrived it by adding the agreed sale consideration to the compensation in the form of interest @ 12% p.a. from the committed date of possession till the date of filing of the complaint would be maintainable before this Commission if the said claim comes to more than Rs.1 crore.

6.      In a complaint where the complainant makes alternative prayers, one for possession of the house allotted / plot to him and the other for refund of the amount paid by him to the developer along with compensation, this Commission would have pecuniary jurisdiction to entertain the complaint where either the relief of possession or the relief of refund, alongwith the compensation as calculated in terms of para-5 hereinabove falls within the pecuniary jurisdiction of this Commission. Since in such a case, the State Commission will not have the requisite pecuniary jurisdiction to grant one of the alternative reliefs claimed in the complaint, the complainant cannot be asked to approach the said Commission.

7.      The learned counsel for the parties state on instructions that if the purchase price, service tax and VAT are taken as the value of the service and compensation in the form of 18% interest on the amount paid by the allottee from the date of each payment till the date on which the complaints were filed is added to the said value, the aggregate would come to more than Rs.1.00 crore each in the following 37 consumer complaints:

          They also state that applying the same criteria, the aggregate does not come to more than Rs.1.00 crore in the remaining 23 complaints mentioned herein below:

8.      The contention of the learned senior counsel for the opposite party was that the service tax and VAT cannot be added to the sale price in order to determine the value of the service in terms of Section 21 of the Consumer Protection Act.  I however, find no merit in this contention since, as per the agreement between the parties, the flat buyers were required to pay the aforesaid taxes to the opposite party, and not pay them directly to the concerned Government.  It would be immaterial that the opposite party, in turn would have to deposit the said taxes with the concerned Government, the material fact being that without payment of the agreed purchase price and these taxes, the opposite party would be under no obligation to deliver possession of the flat to the buyers.  Therefore, the aforesaid taxes, in my opinion, cannot be excluded while determining the value of the service, in terms of Section 21 of the consumer Protection Act.

9.      No material has been produced by the opposite party to prove that the completion of construction and offer of possession has been delayed on account of reasons beyond its control.  Thus, no justification for the said delay has been made out.  The learned counsel for the complainants in 37 complaints in which the pecuniary jurisdiction vests with this Commission states on instruction from the said complainants that in order to avoid further litigation in the matter, such complainants who want to take refund instead of waiting for the possession of the flats are restricting their claim to refund of the entire principal amount paid by them, including service tax and VAT along with compensation in the form of simple interest @ 10% per annum from the date of each payment till the date on which the entire amount, along with interest, in terms of this order, is refunded to them.  He further states on instructions that such flat buyers out of the above referred 37 complainant, who want to wait for possession of the flats, with a view to avoid further litigation, are restricting their claim for compensation to simple interest @ 8% per annum on the entire amount including VAT and Service Tax paid by them from the committed date of possession till the date on which the possession of the flat is offered to them after obtaining all the requisite clearances, including the Occupancy Certificate. 

10.    In view of the aforesaid statement the Consumer Complaints Nos. CC/198/2015, CC/793/2015, CC/795/2015, CC/796/2015, CC/797/2015, CC/798/2015, CC/800/2015, CC/801/2015, CC/802/2015, CC/806/2015, CC/807/2015, CC/809/2015, CC/812/2015, CC/814/2015, CC/818/2015, CC/821/2015, CC/822/2015, CC/824/2015, CC/828/2015, CC/831/2015, CC/832/2015, CC/836/2015, CC/837/2015, CC/839/2015, CC/841/2015, CC/847/2017, CC/850/2015, are disposed of with the following directions:

(i)      The opposite party shall refund the entire amount received from the complainants, including the payment, if any, made by their predecessor in interest, including service tax and VAT, along with compensation in the form of simple interest @ 10% per annum from the date of each payment till the date on which the entire amount, in terms of this order along with compensation in the form of interest is actually refunded to them, by way of a Demand Draft / Pay Order;

(ii)      The opposite party shall pay Rs.10,000/- as the cost of litigation in each complaint;

(iii)     The payment, in terms of this order shall be made within three months from today.        

11.    The Consumer Complaints Nos. CC/794/2015, CC/808/2015, CC/811/2015, CC/817/2015, CC/819/2015, CC/825/2015, CC/830/2015, CC/833/2015, CC/843/2015, CC/1245/2015 are disposed of with the following directions:

1. The opposite party shall complete the construction of the flats allotted to the complainants in all respects, obtain all the requisite clearances, including the Occupancy Certificate and offer possession to the complainants on or before 30.04.2018;

2. The opposite party shall pay compensation to the aforesaid complainants in the form of simple interest @ 8% per annum on the entire amount paid by them including VAT and Service Tax from the committed date of possession i.e. the date by which the possession of the flat was agreed / expected to be offered as per the Agreement to Sell, till the date on which the possession in terms of this order is offered to them after obtaining all the requisite clearances, including the Occupancy Certificate.The grace period as per the Agreement To Sell will be included, while determining the committed date of possession;

3. The opposite party shall pay Rs.10,000/- as the cost of litigation in each complaint;

4. The compensation in terms of this order shall be paid on or before 30.4.2018, unless the possession in terms of this order is offered at an earlier date in which case it shall be paid while offering the possession of the flat.If any balance amount, as per the Agreement to Sell, remains payable to the opposite party, that amount can be adjusted while computing the compensation.

12.    Now I am coming to the complaints which do not come within the pecuniary jurisdiction of this Commission.  The question which arises for consideration as to what course of action should be adopted in respect of these complaints which have been pending with this Commission for the last about 1½ years.  One course can be to dismiss these complaints with liberty to such complainants to institute fresh complaints before the concerned State Commission.  The aforesaid course of action, in my view, would not be fair and reasonable, considering that the complaints are pending for about 1½ years and at one point of time, this Commission held the view that the market value of the flat as on the date of filing of the complaint could be treated as the value of the service in such matters.  In my view, the appropriate course of action in such matters would be to follow the procedure prescribed in Order 7 Rule 10 A of the Code of Civil Procedure.  Though, the aforesaid provision has not been expressly extended to this Commission by Section 13 (4) of the Consumer Protection Act, the principle underlying the said provision can in appropriate cases, be adopted by this Commission, in order to protect the interest of the consumers, while simultaneously ensuring that no prejudice is caused to the service provider by adopting such a course of action.  The opposite party in these cases has filed its written version on the merits of the complaints.  It has also led evidence on merits.  No prejudice would be caused to the opposite party if the complaints are returned for being presented before the concerned State Commission, with a direction to the State Commission to decide them afresh, taking into consideration, the pleadings, affidavits and the evidence including documentary evidence filed by the parties before this Commission provided an opportunity is given to the parties to lead additional evidence and if filed, such additional evidence is also considered along with the evidence, which was filed before this Commission.  The aforesaid course of action besides ensuring a prompt and expeditious disposal of the complaints by a competent Consumer Forum will also ensure that no prejudice is caused to either party in any manner.

13.    The learned counsel for the aforesaid complainants states that they will present the complaints before Delhi State Consumer Disputes Redressal Commission within two weeks of receiving the same from the Registry, and requests that a date may be fixed for the appearance of the parties before the said Commission.  The following directions are therefore issued in CC/799/2015, CC/803/2015, CC/804/2015, CC/805/2015, CC/810/2015, CC/813/2015, CC/815/2015, CC/816/2015, CC/820/2015, CC/823/2015, CC/826/2015, CC/827/2015, CC/829/2015, CC/834/2015, CC/835/2015, CC/838/2015, CC/840/2015, CC/844/2015, CC/845/2015, CC/846/2015, CC/847/2015, CC/848/2015, CC/849/2015

(i)      The complaint be returned to the complainant (s), along with an endorsement containing the date of presentation and return of the complaint, the name of the complainant(s) presenting the complaint and a brief statement of reasons for returning the complaint;

(ii)      The complaint shall be returned within one week from today, along with the requisite endorsement and can be presented before Delhi State Consumer Disputes Redressal Commission within two weeks thereafter;

(iii)     The parties shall appear before the Delhi State Consumer Disputes Redressal Commission at 10.30 a.m. on 03.03.2017;

1. The State Commission need not issue a fresh notice requiring the parties to appear before it on the aforesaid date.

2. The State Commission shall decide the complaints in terms of Para 12 of this Order.

3. There shall be no order as to costs in the aforesaid matters.

    

Considering that the complaints have been pending with this Commission for the last about 1½ years, the State Commission is requested to hear and decide the complaints expeditiously, if presented before it, in terms of this order.