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

          The complainants initially booked a residential flat with the OP in a project namely ‘Capella’ which the OP was to develop in ‘Uniworld City’ in Greater Noida.  Later on, the said booking was changed to another project namely ‘Uniworld Gardens’ which the OP was to develop in Sector-117 of Noida.  Apartment No.1402 in Tower B-2 of the said project was allotted to them for a consideration of Rs.39,90,261/- and the complainants were given a discount in respect of the new allotment and an amount of Rs.4,93,227/-, out of the amount paid by them in respect of the flat booked in ‘Capella’ in Greater Noida, was refunded to them. 

2.      As per the terms and conditions of the allotment made to the complainants, the possession was expected to be delivered to the complainants by 31.08.2011.  The grievance of the complainants is that the construction is not complete despite they having already paid the entire sale consideration to the OP.  The complainants are therefore, before this Commission seeking refund of the said amount alongwith compensation etc. 

3.      The OP has filed written version contesting the complaint but has admitted the allotment made to the complainants as well as the payment received from them.  The complaints have been resisted by the OP primarily on the grounds that (i) This Commission lacks the pecuniary jurisdiction to entertain the complaint as the sale consideration of the apartment was less than Rs.1 Crore, (ii) The jurisdiction of this Commission is ousted after coming into force of Real Estate Regulatory Authority Act (RERA), (iii) There was agitation by the farmers whose land was acquired in Greater Noida and (iv) The farmers whose lands in the villages of Noida and Greater Noida had been acquired by the Government, had filed Writ Petitions in which acquisition of land in Greater Noida was quashed. 

4.      As far as the agitation by the farmers and acquisition of land in Greater Noida is concerned, the said events would have no bearing on this complaint since the second allotment to the complainants was made in Noida and not in Greater Noida.  There is neither any allegation nor any evidence of the farmers having blocked the construction of the flats which the OP was to construct in the project ‘Uniworld Gardens’ in Sector-117 of Noida.  There is neither any allegation nor any evidence of acquisition of the land on which the said project was to come up having even been challenged.  There is no order quashing acquisition of the land on which the said project was to be developed.  Therefore, I find no merit in the justification given by the OP for the delay in completion of the construction.

5.      As far as the pecuniary jurisdiction of this Commission is concerned, in terms of Section 21 of the Consumer Protection Act, this Commission would have pecuniary jurisdiction to entertain a complaint where the value of the goods purchased or the services hired or availed and compensation if any, claimed in the complaint, exceeds Rs.1 Crore.  In the present case, the complainant has claimed compensation in the form of simple interest @ 18% per annum.  If interest at the aforesaid rate is calculated and added to the sale consideration of the apartment, the aggregate comes to more than Rs.1 Crore.  It would be pertinent to note here that in terms of the decision rendered by a three-Members of this Commission in Ambrish Kumar Shukla Vs. Ferrous Infrastructure & Ors. Vs. Ferrous Infrastructure Pvt. Ltd. on 07.10.2016, the value of the services in such cases would mean the price of the apartment agreed to be paid by the flat buyer to the builder.  Considering that in the past, this Commission has awarded interest even at the rate of 18% per annum, the prayer made in the complaint for refund with interest @ 18% per annum cannot be said to be so outrageous and exaggerated so as to result in outright rejection of the complaint for want of pecuniary jurisdiction.  Eventually, this Commission may not award compensation in the form of simple interest @ 18% per annum, but, it would not mean that if interest at the said rate is demanded, the claim would always said to be so highly exaggerated and inflated so as to warrant outright rejection at the very threshold solely for want of pecuniary jurisdiction.  I therefore, hold that this Commission does possess the requisite pecuniary jurisdiction to entertain the complaint. 

6.      As far as the plea of want of jurisdiction in view of the provisions contained in RERA is concerned, the said issue is no more res integra in view of a decision of this Commission in CC 1764 of 2017 Ajay Nagpal Vs. M/s Today Homes & Infrastructure Pvt. Ltd. and connected matters, decided on 15.04.2019 wherein this Commission held as under:

“40.   From the various decisions of the Hon’ble Supreme Court referred to above, the following principles emerge:-

(i)      The Consumer Protection Act, 1986 is a supplement Act and not in derogation of any other Act;

(ii)     Any Consumer who is aggrieved by any defect in goods purchased or deficiency in service as also regarding unfair trade practice, can approach the Consumer Fora by filing the complaint under the Act.  Even a Class Action Complaint is permissible under the Act. 

(iii)    The Consumer Fora constituted under the Consumer Protection Act, 1986 are not Civil Courts. 

(iv)    The Consumer Fora can provide for the reliefs as contemplated under Section 14 of the Act.

(v)     A Consumer cannot pursue two remedies for the same cause of action. However, if a Consumer has not approached for redressel of its grievance under the particular Statute, the Consumer can approach the Consumer Fora under the Consumer Protection Act.  But, if the Consumer had already approached the Authority under the relevant Statute, he cannot simultaneously file any complaint under the Consumer Protection Act.

(vi)    Mere availability of a right to redress the grievance in a particular Statute will not debar the Complainant/Consumer from approaching the Consumer Fora under the Act.

(vii)   Even though under Sections 14, 15, 18 and 19 of RERA, various provisions have been made which are to be followed by the Developer/Promoters and the rights and duties and the return of amount as compensation as also rights and duties of Allottees, yet same cannot mean to limit the right of the Allottee only to approach the Authorities constituted under the RERA, he can still approach the Consumer Fora under the Consumer Protection Act.

(viii)   Section 71 of RERA which gives the power to adjudicate, does not expressly or impliedly bar any person from invoking the provisions of the Consumer Protection Act. It has also given a liberty to the person whose Complaint is pending before the Consumer Fora to withdraw it and file before the RERA Authorities. 

(ix)    Section 79 of RERA only prohibits the jurisdiction of Civil Court from entertaining any suit or proceeding in respect of any matter which can be decided by the Authorities constituted under the RERA. As the Consumer Fora are not Civil Courts, the provisions of Section 79 which bar the jurisdiction of Civil Courts, will not be attracted. So far as to grant injunction is concerned, only that power has been taken away by Section 79. But, it does not, in any manner, effect the jurisdiction of the Consumer Fora in deciding the Complaints. Both, the Consumer Protection Act, 1986 and the Real Estate (Regulation and Development) Act, 2016 are supplemental to each other and there is no provision in the Consumer Protection Act which is inconsistent with the provisions of RERA.   

41.     Applying the aforesaid principles to the present case, we are of the considered opinion that this Commission has jurisdiction to proceed with the Complaint Cases filed by the Consumers and neither Section 71 nor Section 79 and nor Section 89 creates any embargo or prohibits the jurisdiction of the Consumer Fora.”

7.      The possession as per the terms and conditions of the allotment, was expected to be delivered by 31.08.2011.  More than 7½ years have since expired and the construction is nowhere even near completion.  The work at the project is lying practically abandoned.  Therefore, the complainants are entitled to refund of the amount paid by them to the OP alongwith appropriate compensation. 

8.      The learned counsel for the complainants states on instructions that the complainants are restricting their claim to the refund of the principal amount paid by them to the OP alongwith compensation in the form of simple interest @ 10% per annum in terms of clause 5.D of the terms and conditions of the allotment which reads as under:

          D.      Default

          If for any reason the developer is not in a position to offer the allotted apartment, the developer shall offer the allottee(s) and alternative property or refund the amount paid by the allottee(s) with Simple Interest @ 10% per annum without any further liability to pay damages or compensation of any kind whatsoever.

          The learned counsel for the complainants also states that no alternative property has even been offered to the complainants by the OP. 

9.      For the reasons stated hereinabove, the complaint is disposed of with the following directions:

          (i)      The OP shall refund the entire principal amount of Rs.41,56,981/-  to the complainants alongwith compensation in the form of simple interest @ 10% per annum with effect from the date of each payment till the date of full refund. 

          (ii)      The OP shall also pay compensation in the form of simple interest @ 10% per annum to the complainants on the amount of Rs.4,93,227/- from the date the said amount was paid till the date of refund.

          (iii)     The OP shall also pay a sum of Rs.25,000/- as the cost of litigation to the complainants.

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