ORDER                                       

Rekha Rani, President

1.  The  complainant has filed the instant complaint  U/s 12 of the Consumer Protection Act 1986 as amended (in short the Act)  pleading therein that complainant had booked a 4 BHK flat in the project of the OPs under the name and style of Earth Tower in Greater Noida measuring  1795 Sq. ft. at a price of Rs. 3220 per sq. ft. He paid Rs. 5,65,425/- towards booking  amount of the said flat. He made all the payments as per the agreed schedule. He came to know from reliable sources that the project had not even started and  there is no likelihood of its starting in near future and the promises made by the OPs for timely construction of the project is an eye wash. He, therefore, demanded refund of his deposit from OPs. He sent a legal notice dated 24.11.2015 to the OPs. In reply to the legal notice OPs invoked Arbitration and Conciliation Act 1996 wherein they proposed the name of  Sole Arbitrator Mr. Bhanu Katpalia which name was not acceptable to the complainant. Complainant’s advocate suggested appointment of one more arbitrator to which no reply was received from the OPs. Complainant has sought direction to the OPs to refund an amount  of Rs. 5,65,425/- with compound interest since  October 2014 till realization , Rs. 10 Lakhs as damages for mental harassment , Rs. 25,000/- as litigation  cost. 
2. On receipt of notice OPs filed written statement and contested the claim. It is stated that complainant has concealed the material facts. It is admitted that complainant had booked a  residential unit. It is stated that he had opted for construction linked payment plan and was accordingly liable to pay 10% of BSP at the time of booking. It is stated that complainant had failed to make further payments  as per construction linked payment plan  despite reminders and in terms of clause 14 of the agreement if complainant applied for cancellation of provisional allotment he would be entitled for refund of  balance amount after forfeiture of earnest amount to the extent  of 15% of total consideration.  It is stated that complainant himself being in the wrong is not entitled to the relief claimed. 
3. We have heard Rita Kumar advocate of complainant . None appeared for OP to argue. We have perused the material available on record.
4. OP in its  reply  dated 10.12.2015 to legal notice of complainant dated 01.12.2015 has objected to jurisdiction of this forum to adjudicate the matter invoking arbitration clause .
5. In Aftab Singh & Ors V/s Emaar MGF Land Ltd & Anr.III  (2017) CPJ 270 (NC)  the Hon’ble National Commission held that the disputes under the Act are non-arbitral, section 8 of Arbitrtion and Conciliation Act cannot be construed   as a mandate to consumer forums, constituted under  the Act, to refer parties to arbitration in terms of arbitration agreement.  Further as per section  3 of the Act  remedy under the Act  is in addition to and not in derogation of the provisions of any other law.  For this reliance can be placed on decision of National Commission in complaint case No. 346/13 titled as Lt. Col. Anil Raj Vs Unitech decided on 02.05.2016.
6. As per booking application form placed on record duly signed by the complainant he booked super area of 1795 Sq. Ft. In para 1 page 2 of his complaint he stated that the cost price was Rs. 3220/- per sq.ft. The total price comes to Rs. 3220/- x  1795 Sq. ft. =  Rs 5779900/-  which amount is beyond the pecuniary jurisdiction of this forum.
7. As per Section 11 (i) of the Act the District Forum has pecuniary        jurisdiction to adjudicate claims where the value of goods and services and the compensation claimed does not exceeds Rs. 20 Lacs.
8. Three member bench of National Commission in Ambrish Kumar Shukla & Ors Vs Ferrous   Infrastructure Pvt Ltd in CC No. 97/2016 vide order dated 07.10.2016  observed that value of goods & services  and value of the relief sought is to be   seen for the purpose of pecuniary jurisdiction instead of value of deficiency alleged .
9. The same question again came up  before National Commission in Rajkishore V/s TDI Infrastructure Ltd III (2017) CPJ 155. In that case total sale price of the property was above Rs. 20,00,000/- but complainant sought refund of Rs. 8,06,300/- charged in excess by the OP. Complaint was filed before State Commission which was dismissed vide order dated 16.02.2016 on the issue of pecuniary jurisdiction with liberty to file fresh complaint before District Forum.  The complainants went in appeal contending that consumer dispute involved property whose value was above Rs. 20,00,000/-(Rs. Twenty Lacs only) National Commission allowed the appeal and following Ambrish Kumar Shukla (supra) observed that even if there was a small deficiency in the service availed by the complainant the total value of  the said service is taken into consideration for the purpose of determining   pecuniary jurisdiction.
10. In another case titled  Daimler Financial Services India Vs Laxmi Naryan Biswal in First Appeal no. 1616 of 2017 decided on 30.08.2017 by Hon’ble National Commission  judgment in  Ambrish Kumar Shukla  (supra)  was again referred and following relevant part  of the said judgment was quoted:  

“Reference order dated 11.8.2016   Issue No. (i)   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. If the aggregate of the value of the goods purchased or the services hired or availed of by a consumer, when added to the compensation, if any, claimed in the complaint by him, exceeds Rs.1.00 Crore, it is this Commission alone which would have the pecuniary jurisdiction to entertain the complaint. For instance if a person purchases a machine for more than Rs.1.00 Crore, a manufacturing defect is found in the machine and the cost of removing the said defect is Rs.10.00 lakh, it is the aggregate of the sale consideration paid by the consumer for the machine and compensation, if any, claimed in the complaint which would determine the pecuniary jurisdiction of the Consumer Forum. Similarly, if for instance, a house is sold for more than Rs.1.00 Crore, certain defects are found in the house, and the cost of removing those defects is Rs.5.00 lakh, the complaint would have to be filed before this Commission, the value of the services itself being more than Rs.1.00 Crore.”

11. The facts of the case in Daimler Financial Services India (supra) were that the complainant had purchased two Hywa Trucks with the financial help of Daimler Financial Services India by taking loan of Rs. 23,55,945/- for each vehicle. Out of the total loan of Rs. 23,86,995/- for each vehicle , the complainant  had already paid the entire loan amount and had agreed to pay the full and  final settlement on 05.04.2016 by making payment of Rs. 14,70,000/- and had received the possession of the vehicle on the same day with further condition that the complainant should withdraw the writ petition bearing no. WP (C ) 2307 of 2016 from the High Court of Odisha. Prior to liquidation of loan / expiry of the agreement the Daimler Financial Services India had seized  the vehicle for which the complainant had approached the High Court of Odisha by way of filing a Writ Petition.  The High Court had issued notice and the Daimler Financial Services India after receiving the notice had called the complainant for a settlement. As per the said settlement the complainant had already paid a sum of Rs. 14,70,000/- towards full and final settlement outstanding in respect of both the vehicles.   Though the complainant in pursuance to the aforesaid settlement had paid the entire amount towards liquidation of loan and had withdrawn the Writ Petition before the High  Court of Odisha, the Daimler Financial Services India   taking advantage of the situation had not issued NOC to the complainant.  The complainant hence filed a  Consumer Complaint before the Odisha State Consumer Disputes Redressal Commission, Cuttack for not granting NOC which was termed illegal deficiency in service and unfair trade practice and  for directing Daimler Financial Services India to issue NOC in respect of the two vehicles.  The State Commission admitted the consumer complaint which was challenged before the Hon’ble National Commission. The  Hon’ble National Commission observed that :

“ Counsel for the appellant has admitted that the respondent/ complainant had taken loan of Rs. 47.74 Lakh,  the cost of service and compensation asked for is Rs. 95,000/-.  Hence the aggregate value of the cost of service hired or availed of and the compensation claimed by the complainant certainly falls within the pecuniary jurisdiction of the State Commission”.

12.  Hon’ble Apex Court has repeatedly held that the question of jurisdiction can be raised at any stage of the proceedings as the court/tribunal/forum is bound to decide the same before proceeding to adjudicate the matter on merits as the issue of jurisdiction goes to the root of the matter and decision of the court/tribunal/forum without jurisdiction is a nullity which cannot be executed.
13.  In Jagmittar Sain Bhagat (Dr.) v. Director, Health Services, Haryana & Ors., III (2013) CPJ 22 (SC) = Civil Appeal No. 5476 OF 2013 dated 11/07/2013,Hon’ble Apex Court observed:

  “Indisputably, it is a settled legal proposition that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior Court, and if the Court passes a decree having no jurisdiction over the matter, it would amount to nullity as the matter goes to the roots of the cause. Such an issue can be raised at of the any stage proceedings. The finding of a Court or Tribunal becomes irrelevant and unenforceable/  inexecutable once the forum is found to have no jurisdiction. Similarly, if a Court/Tribunal inherently lacks jurisdiction, acquiescence of party equally should and perpetrate, defeating the legislative animation. The Court cannot derive jurisdiction apart from the Statute. In such eventuality the doctrine of waiver also does not apply. (Vide: United Commercial Bank Ltd. v. Their Workmen, AIR 1951 SC 230; Smt. Nai Bahu v. Lal Ramnarayan & Ors., AIR 1978 SC 22; Natraj Studios (P) Ltd. v. Navrang Studios & Anr., AIR 1981 SC 537; and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar & Ors., AIR 1999 SC 2213).

14. In Reliance Consumer Finance Vs Randhir Singh First Appeal No. 431 of 2013 the Hon’ble SCDRC , Chandigarh vide order dated 24.12.2013 it was observed that it is settled  principle of law, that the Consumer Fora, at any stage of the proceedings, is duty bound to decide of its own, the legal questions as to whether the complainant within the definition  of a Consumer ; whether it had territorial and pecuniary jurisdiction to entertain and decide the complaint; whether the complaint involved the consumer dispute; and whether the consumer complaint was maintainable.   
15. The instant complaint be accordingly returned to the complainant to be presented before the appropriate forum having jurisdiction . Copy of the  same  be retained  on record. Copy of this order be sent  to the parties as statutorily required. File be consigned to record room.

           Announced this 6th      Day  of January 2018.