Delhi

StateCommission

CC/648/2015

PAWANISH KUMAR MODI & ANR. - Complainant(s)

Versus

UNITECH LTD. - Opp.Party(s)

21 May 2018

ORDER

IN THE STATE COMMISSION: DELHI

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

 

 

Date of Hearing: 21.05.2018

                                                                                                              

                                                                   Date of Decision:23.05.2018

 

 

Complaint No. 648/2015

 

 

IN THE MATTER OF:

 

Sh. Pawanish Kumar Modi and

Smt. Sunita Modi

R/o 18, Sukhdham Apartment,

Sector 9, Rohini

 

Presently residing at:

D-902 Annexe, Magarpatta City,

Pune                                                                               ….Complainant

                                                                                                                  

 

VERSUS

 

         

Unitech Limited

6, Community Centre,

Saket, New Delhi-110017                                               ….Opposite Parties

 

 

         

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:       Sh. Arpit Bhargava & Sh. Varun Talwar, Counsel for the complainant

                   Sh. Ankur Setia, Counsel for the opposite parties.

 

PER:           ANIL SRIVASTAVA, MEMBER (G)

JUDGEMENT

 

1.           This complaint has been filed by Sh. Pawanish Kumar Modi and Smt. Sunita Modi, resident of Delhi, before this Commission under Section 17 of the Consumer Protection Act 1986, for short Complainant, against Unitech Ltd., hereinafter referred to as Opposite Parties, alleging deficiency of service on the part of the OP for not having handed over possession of the flat booked by them despite the agreed time for the purpose having been handed over and despite substantial payment having been made as per the schedule and praying for the relief as under:

 

1. To handover possession of the flat so booked by the complainant immediately or in the alternative refund the amount of Rs. 26,82,474/- (Twenty six Lakhs Eighty Two Thousand Four Hundred Seventy Four only) along with interest at the rate of 18% per annum from the date of deposit till the date of refund.
2. To pay compensation at the rate of Rs. 5 per Sq. ft. of super area as per the terms and conditions dated 11.07.2011 from t stipulated date of possession till the date of payment.
3. To pay compensation totalling to Rs. 10,00,000/- for mental agony, harassment and inconvenience caused by Opposite Party to complainants die to deficiency in services.
4. To pay compensation at the rate of Rs. 20,000/- per month owing to extra rent/loss of rental income payable by complainants from the stipulated date of possession till the date of payment.
5. To pay litigation cost to the tune of Rs. 1,50,000/- to complainants.
6. Pass such other or further relief which this Hon’ble Commission deems fit in the facts and circumstances of the present complaint and in the interest of justice.

 

2.           Facts of the case necessary for the adjudication of the complaint are these.
3.           The complainants on the advertisements of the OPs had booked an apartment in their upcoming project namely the ‘Residence’ at Plot No: GHP0001 Sector 117 Noida, Uttar Pradesh by paying an amount of Rs. 5,88,932/- out of the sale consideration of Rs. 62,58,896/-and in response thereto the Opposite Parties had allotted an apartment in their favour bearing number 0202 on the Second Floor in Tower A2 admeasuring, Super Area of 153.75 sq. mr. (1655 Sq. ft.) on the assurance that the construction of the project would be complete in 36 months which means by July 2014. Further payment of Rs. 7,21,049/- was made by the complainant on three occasions on 27.05.2011, 10.06.2011 and on 11.07.2011. Again on 10.03.2012 the complainants had paid a sum of Rs. 6,51,444/-. But on their inspection they it was found that the completion of the project was no where near possibility.
4.           Accordingly the complaint has been filed before this Commission for the redressal of their grievances. OPs were noticed. In response thereto the WS. alongwith application for condonation of delay was filed. But with the consent of the ld. Counsel for the complainant delay in filing WS was condoned subject to cost of Rs. 5,000/- which cost not having been paid despite the assurance following order was passed by this Commission on 19.01.2018:

 

“WS already filed by OP is on record. Copy admitted to have been received by complainant. However, counsel for complainant has pointed out that delay in filing WS was condoned on 24.08.2016 subject to payment of Rs. 5,000/- as cost. Another cost of Rs. 2,000/- was imposed on 11.09.2017. The OP has not paid either of the two costs. Since filing of WS was conditional subject to cost, WS is struck of the record.

 

5.           The complainants had filed their evidence. The matter was listed before me for final hearing on 21.05.2018 when the ld. Counsel from both sides appeared and advanced their arguments. I have perused the records of the case and carefully considered the issues involved.
6.           In the first instance I may advert to the prayer clause referred to in the preceding paragraph. We note the details as under:

 

Total sale consideration	Rs. 62,58,896/-
Compensation on account of mental agony	Rs. 10,00,000/-
Compensation at the rate of Rs. 20,000/- per month owing to extra rent/loss of rental income payable by complainants from the proposed date of possession Rs. 11,16,000/-	11,16,000/-
Compensation at the rate of Rs. 5 per sq. ft. of the super area again from the proposed date of possession Rs. 4,80,000 (Approx)	Rs.4,80,000 (Approx)
Litigation cost.	Rs. 1,50,000
Interest on the amount deposited by the complainant @ 18% as prayed for Rs. 12,00,000/- (Approx)	Rs.12,00,000/- (Approx)
Total	Rs. 1,02,04,896/-

 

7.           The claim preferred in this complaint on all accounts as prayed for if added to the sale consideration, the total exceeds Rs. One Crore in which case this Commission would not have the competence to adjudicate Section 17 (1)(a)(i) of the Consumer Protection Act 1986 posits as under:

 

Jurisdiction of the State Commission- Subject to the other provisions of this Act, the State Commission shall have jurisdiction-

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]

 

8.           It is trite law that the question of pecuniary jurisdiction being a legal issue and go to the very foundation of a case, gives jurisdiction to the Forum to decide the case on merits. The Hon’ble NCDRC in the matter of Amrish Shukla and ors versus Ferrous Infrastructure Pvt. Ltd. as reported in I [2017] CPJ 1 (NC) is pleased to hold as under:

 

“In a complaint instituted under Section 12 (1) (c) of the Consumer Protection Act, the pecuniary jurisdiction is to be determined on the basis of aggregate of the value of the goods purchased or the services hired or availed by all the consumers on whose behalf or for whose benefit the complaint is instituted and the total compensation claimed in respect of such consumers.”

9. And

“The consideration paid or agreed to be paid by the consumer at the time of purchasing the goods or hiring or availing of the services, as the case may be, is to be considered along with the compensation, if any, claimed in the complaint, to determine the pecuniary  jurisdiction of a Consumer Forum.”

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“Interest has to be taken into account for the purpose of determining the pecuniary jurisdiction of a Consumer Forum.”

 

10. From the above it is clear that it is value of goods or services and compensation claimed which determines pecuniary jurisdiction of the Consumer Forum. The National Commission has observed that if the aggregate of the value of the goods purchased or the service hire or availed of by the consumers, when added to the compensation, if any, claimed in the complaint by him, exceeds Rs. 1,0,00,000/-, it is the National Commission alone which would have the pecuniary jurisdiction to entertain the complaint. Thus, it is clear that the consideration paid or agreed to be paid by the consumer at the time of purchasing the goods or hiring or availing the services, as the case may be, is to be considered along with compensation, if any, claimed in the complaint to determine the pecuniary jurisdiction of the Forum.
11. In this view of the matter and having regard to the discussion done, I am of the considered view that this Commission in the facts and circumstances of the case, lacks the pecuniary jurisdiction and therefore I order return of the complaint to file it before the authority enjoying the jurisdiction therefor. Having done so I do not deem it necessary to express any opinion on other submissions made by the complainant in the pleadings.
12. It goes without saying that the complainant, the complaint having been ordered to be returned, would be entitled to, relying on the ruling of the Hon’ble Apex Court in the case of Laxmi Engineering Works versus PSG Industrial Institute as reported in (1995) 3 SCC 583, exclusion of time spent in prosecuting the complaint before this Commission.
13. Ordered accordingly. A copy of this order by forwarded to the parties to the case free of cost as statutorily required. File be consigned to records.

 

 

 

 

                                                                                                              (ANIL SRIVASTAVA) 

                                                                                                              MEMBER (GENERAL)                                                                                                                           

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