Delhi

East Delhi

CC/454/2017

RAJESH KR. SANWAL - Complainant(s)

Versus

UNNATI FORTUNE HOLIDAY - Opp.Party(s)

09 Jan 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. NO.  454/17

 

Shri Rajesh Kumar Sanwal

C-744, SF, Sushant Lok

Phase – I, Gurgaon                                                                    ….Complainant

Vs.

Unnati Fortune Holdings Ltd.

Tower – 07-LL-02

Commonwealth Games Village

Delhi – 110 092                                                                                …Opponents

 

 

Date of Institution: 01.11.2017

Date of Order : 09.01.2018

 

CORUM:

Sh. Sukhdev Singh (President)

Dr. P.N. Tiwari (Member)

Ms. Harpreet Kaur Charya (Member)

 

Order By: Sh. Sukhdev Singh (President)

 

ORDER

            Complainant Shri Rajesh Kumar Sanwal has filed a complaint under Section 12 of the Consumer Protection Act 1986 against M/s. Unnati Fortune Holdings Ltd. (OP) praying for refund of Rs. 3,69,600/- with compensation of Rs. 50,000/- on account of mental pain and suffering with cost of Rs. 35,000/-.

            The facts in brief are that the complainant booked a residential flat in the project ‘The Aranya’, developed by M/s. Unnati Fortune Holdings Ltd. (OP) in Sector 119, Noida, who was induced by the respondent company to avail the subvention plan under which he had to pay 15% of the cost of the unit and the remaining balance of 80% would be funded by ICICI bank.  The balance 5% was to be paid by the complainant at the time of possession which was to be given around May-June, 2017.  The complainant issued a cheque of dated 01.11.2014 for an amount of         Rs. 1,00,000/- and another cheque dated 06.11.2014 for Rs. 1,80,000/- to book the said unit.  He was given provisional allotment.  He applied for loan with ICICI bank which was sanctioned.  The sanction letter was handed over to the respondent company. 

            The complainant was asked by respondent company to pay another amount of Rs. 8,69,835/- through its letter of dated 21.03.2015 which was more than the payment of 15%, payable at that stage.  He called the respondent company to rectify their mistake which was admitted by them and the complainant was asked to make the payment of Rs. 5,82,337/- by way of cheque on 03.05.2015 alongwith a cover letter stating that the cheque be encashed only when the subvention loan was released by Tata Capital and Housing Finance Ltd.  

            The respondent company, thereafter, wrongfully and fraudulently issued a demand letter dated 09.02.2016 asking for payment of               Rs. 17,38,179/- from the complainant.  It was brought to the notice of respondent company that only 15% payment was to be made under the subvention scheme.  They sent the complainant a payment plan, which was fraudulent and turned out to be construction linked plan.  When the complainant visited the project site, he noticed that the construction activity had been completely halted.  There was no construction or development activity, due to which the company failed to give the possession in the first phase which was due in 2015. 

            The complainant sent a legal notice dated 26.04.2017 for refund of Rs. 2,80,000/- alongwith interest @ 24% p.a.  Thus, he has stated that the respondent was deficient in services and indulged in unfair trade practice.  Hence, he has claimed an amount of Rs. 3,69,600/- (Rs. 2,80,000/- as refund amount and Rs. 89,600/- interest).

            We have heard on admission.  The first and foremost point which have arisen was with regard to pecuniary jurisdiction.  Though the complainant have not given the value of the flat in his complaint, but from the documents which he has placed on record such as application form, it has been noticed that the basic cost of the flat has been Rs. 55,76,850/-.  The complainant have valued his complaint for the purpose of jurisdiction, the refund amount as Rs. 3,69,600/- (Rs. 2,80,000/- amount paid +         Rs. 89,600/- interest). 

            It has been argued on behalf of the complainant that the complainant have valued the complaint for the purpose of jurisdiction on the basis of refund amount claimed.  He has stated that for the purpose of pecuniary jurisdiction the complaint cannot be valued on the basis of value of the flat which was Rs. 55,76,850/-, but it has to be valued on the basis of refund amount claimed.    

            He has placed reliance on a judgement of Hon’ble National Consumer Disputes Redressal Commission in M/s. Advance ISPAT (India) Ltd. vs. M/s. Parsvnath Developers Limited, where reference has been made to Ambrish Kumar Shukla & Ors vs. Ferrous Infrastructure Pvt. Ltd.; CC No. 97 of 2016, and it has been observed as “However, this judgement is silent on the issue of value of goods and services in cases where refund has been requested.  Obviously, there is difference in the cases where parties want to go ahead and conclude the sale of goods or availment of services and where one party is only seeking the refund and thereby clearly deciding for non-execution of the agreement.  In the cases of refund, the value of complaint has to be the value of the amount deposited plus compensation claimed”.   

            To appreciate the arguments of Ld. Counsel for the complainant, it would be relevant to have a look to the case Parikshit Parashar vs. Universal Buildwell Pvt. Ltd., decided by the Hon’ble National Consumer Disputes Redressal Commission as well as Ambrish Kumar Shukla (supra), where  the Hon’ble  National Consumer Disputes Redressal Commission have determind the question of pecuniary jurisdiction.  In Parikshit Parashar (supra), answering to question no. (i) and (iii) referred vide order dated 11.08.2016 passed in First Appeal no. 166 of 2016, First Appeal no. 506 of 2016 and First Appeal no. 505 of 2016 such as :

1. 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.  

3. Whether “the value of the goods or services and compensation, if any, claimed” is to be taken as per the original value of such goods, or service at the time of purchase of such goods or hiring or availing of such service, OR such value is to be taken at the time of filing the claim, in question.

            In answer to question no. (i), the Hon’ble National Consumer Disputes Redressal Commission has held that “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”.

            Answering to question no. (iii), the Hon’ble National Consumer Disputes Redressal Commission has held that “on a deeper consideration, we are of the view that it is the price of the goods or the services as the case may be agreed to be paid by the consumer which would be relevant for the purpose of determining the pecuniary jurisdiction” (emphasis ours). 

            Similar view has been taken by the Hon’ble National Consumer Disputes Redressal Commission in Ambrish Kumar Shukla (supra). 

            Thus, from the reading of judgement in Parikshit Parashar (supra) as well as Ambrish Kumar Shukla (supra), it comes out that the Hon’ble National Consumer Disputes Redressal Commission has taken the view that it is the value of the goods or services and compensation claimed which determines the jurisdiction of the consumer forum.  In both the situations, stress has been on the price of the goods or the services which will be a determining factor for valuing the complaint for the purpose of pecuniary jurisdiction.   

            While answering question no. (iii), the Hon’ble National Consumer Disputes Redressal Commission has emphasized that it was the price of the goods or the services agreed to be paid by the consumer which would be relevant for the purpose of determining the pecuniary jurisdiction.  If answer to this question no. (iii) is read minutely, it is noticed that the Hon’ble National Consumer Disputes Redressal Commission has used the words “price of the goods” or “services agreed” to be paid by the consumer.  Here, the word “agreed” has relevance for determining the pecuniary jurisdiction. 

            Thus, from the reading of these two judgements, it is evident that the Hon’ble National Consumer Disputes Redressal Commission has laid down that for determining the pecuniary jurisdiction of a Forum, it is the  value of the goods paid or agreed to be paid.  Therefore, in a case for refund of booking amount it is not the amount of refund which will determine the pecuniary jurisdiction, but it is the value of the flat paid or agreed as held by the Hon’ble National Consumer Disputes Redressal Commission in Parikshit Parashar (supra) and Ambrish Kumar Shukla (supra) while answering the reference. 

            The Hon’ble National Consumer Disputes Redressal Commission have broadly laid down the principles for determining the pecuniary jurisdiction in Parikshit Parashar (supra) and Ambrish Kumar Shukla (supra) which were to be followed by the Consumer Forums in the cases coming before them.  That being so, the judgement of single member in Advance ISPAT (India) Ltd. (supra) does not lay down the correct law.  Therefore, the same was not attached to the facts of the case. 

            In view of the above, we are of the opinion that it is the value of the flat which will determine the pecuniary jurisdiction and not the amount of refund claimed.  The value of the flat being Rs. 55,76,850/- was beyond the pecuniary jurisdiction of this Forum.  Therefore, this Forum has no pecuniary jurisdiction to entertain this complaint, which deserves its dismissal and the same is dismissed.  There is no order as to cost.             

            Copy of the order be supplied to the parties as per rules.

            File be consigned to Record Room.

 

(DR. P.N. TIWARI)                                              (HARPREET KAUR CHARYA)

Member                                                                                Member    

 

            (SUKHDEV SINGH)

             President