|
1. This consumer complaint has been filed by Praveen Mehta, alleging
deficiency on the part of opposite party, Bengal Unitech Universal
Infrastructure Pvt. Limited.
2. The facts of the case are that in pursuance of booking by the
complainant, an allotment letter was issued by the opposite party on
4.4.2011 acknowledging the application for booking the flat. The said
letter also disclosed the amount of consideration at Rs.69,25,490/-.
3.
On 12.4.2011 the sale agreement was signed between the complainant and the
opposite party. On 10.12.2014 - pursuant to failure to hand over the
possession within the stipulated time, the complainant sent an email to the
opposite party enquiring about the possession of the flat. The
complainant also brought to the notice of the opposite party the fact that
in spite of making full payment against the flat allotted to him as per the
payment scheme, the opposite party had claimed that an amount of
Rs.7.10,440/- including interest was due. The complainant asked the
opposite party to rectify the mistake on their part and to give an estimate
in regards to the date on which possession of flat can be given to the
complainant.
4.
On 13.12.2014 in reply to the above mail, the opposite party replied that
possession can be handed over by the end of 2015 only. On 06.08.2015
another email was sent by the complainant enquiring about the handing of
the possession of said flat. It was informed that possession would be
handed over in the second quarter of 2016. On 11.08.2015, legal
notice was served on the respondents demanding payback of deposited money
of allotment along with interest and further payments.
5. Heard on the point of jurisdiction to decide the present
complaint. Learned counsel argued that the flat at the time of
booking was for Rs.69,25,490/- and the complainant has already paid
Rs.65,57,338/- to the opposite party. As per the builder –buyer’s agreement
the possession of the flat was to be handed over within 36 months.
The first instalment was paid in April, 2011 and therefore, the possession
was to be handed over by April, 2014. Initially, the opposite party
had informed that the flat would be ready by December, 2015. However,
it has been informed now that possession would be handed over in the second
quarter of 2016. Inspite of making the full payment in the year 2011
itself, the opposite party has sent a demand notice of Rs.7,10,440/- including
interest, whereas the complainant had clarified to the opposite party that
the complainant had paid all the due money to the opposite party. As
the possession has not been delivered in time, the complainant is entitled
to get the refund of the amount deposited along with the interest.
6. In regard to the jurisdiction of this Commission, learned counsel
argued that the amount deposited along with compensation by way of interest
@18% would become more than one crore and therefore, this Commission has a
jurisdiction to decide this complaint.
7. Section 21 a (i) of the Consumer Protection Act, 1986, reads as
follows:-
“Jurisdiction
of the National Commission.- Subject to the other provisions of this
Act, the National Commission shall have jurisdiction-
(a) to entertain-
(i) complaints where
the value of the goods or services and compensation, if any, claimed
exceeds rupees on crore.”
8. We have carefully considered the arguments advanced by the learned
counsel for the complainant and perused the records carefully. In the
complaint filed before this Commission, following has been mentioned under
the heading of the jurisdiction:-
“Jurisdiction
That the Commission has jurisdiction to preside over the present matter as
the registered office of the opposite party is at Delhi, at the address
mentioned above, that comes under the territorial jurisdiction of the
Hon’ble Commission. Further, the compensation sought by the complainant in
the present matter falls within the pecuniary jurisdiction of this Hon’ble
Commission.”
9. Following prayer has been made in the complaint:-
(i)
The opposite party be ordered to return the total amount deposited by the
complainant i.e. Rs.65,57,338 (Rupees Sixty five lacs, fifty seven thousand
three hundred and thirty eight only).
(ii)
That the opposite party may be ordered to pay the interest on such total
amount at the rate of 18% from the date of booking of the apartment.
(iii)
That the opposite party may be ordered to pay the amount of interest paid
on the loan amount by the complainant to the bank alongwith an interest of
18% on such amount from the date of first payment.
(iv) That the
complainant be paid Rs.20,00,000 as a compensation for mental agony and
harassment, which the complainant has went through due to the utter lack of
services from the opposite party.
(v) That the
opposite party be ordered to pay Rs.5,00,000 to the complainant as legal
expenses borne by him. That the total amount of Rs.1,47,10,027/- be
paid as the total compensation to the complainant.
(vi) That the
commission be pleased to pass any other relief that it deems fit in the
interest of justice.
10.
From the prayer in the complaint it is amply clear that the main prayer is
for refund of the deposited amount of Rs.65,57,338/- along with interest of
18%. The
complainant is bound by the terms and conditions of the builder- buyer’s
agreement. As per this agreement, if the complainant does not take
the possession inspite of offer of possession, he is bound to pay holding
charges as per agreement to the opposite party and in case of delay
in possession there are certain charges @5 /- per sq.ft. per month that will be payable by the
builder to the allottee.
11. As per Section 21 a (i), the value of the goods or services along
with compensation is to be considered for deciding the jurisdiction of the
Consumer Forum. The complainant has not filed any proof or has not
argued anything in respect of the present value of the flat. We feel that
value of goods/services should be considered in the context of Section
2(1)(d) of the Consumer Protection Act, 1986(hereinafter referred to as
‘Act’), defining the consumer, which reads as under:
“(d) consumer means any person who,-
(i) buys
any goods for a consideration which has been paid or promised or partly
paid and partly promised, or under any system of deferred payment and
includes any user of such goods other than the person who buys such goods
for consideration paid or promised or partly paid and partly promised, or
under any system of deferred payment, when such use is made with the
approval of such person, but does not include a person who obtains such
goods for resale or for any commercial purpose; or
(ii) [hires or avails of] any
services for a consideration which has been paid or promised or partly paid
and partly promised, or under any system of deferred payment and includes
any beneficiary of such services other than the person who [hires or avails
of] the services for consideration paid or promised, or partly paid and
partly promised, or under any system of deferred payment, when such
services are availed of with the approval of the first mentioned person
[but does not include a person who avails of such services for any
commercial purpose]”
12.
From the above definition of the Consumer, it is clear that consideration
could be either paid or promised or partly paid and partly promised or
under any system of deferred payment. Whatever be the method of the
payment in the present case, the value of consideration remains at the
level of Rs.69,25,490/- only. As the “value” is not separately defined
in the Act, it may be seen in congruence with the definition of the
“consumer” for all practical purposes. Hence, we have no option but
to take valuation on its face value i.e. the amount deposited by the
complainant, which is Rs.65,57,338/-. A compensation of Rs.20,00,000/- has
been demanded by the complainant in the complaint. Even if both these
amounts are added, the amount does not exceed Rs.1,00,00,000/-. It is
another question as to what amount will be refundable by the opposite party
to the complainant as per terms and conditions of the builder- buyer’s
agreement.
13.
If we consider interest as compensation, then we have to consider the
period for which interest should be considered for this purpose. Obviously,
no interest is payable till the promised date of possession. However,
interest will start from the date the opposite party has defaulted and for
valuation purposes, it can be considered for a period of two years within
which the complaint may be filed, thought he actual question of interest will
be decided after the case is finally disposed of and it will depend on the
facts and circumstances of each case. From this consideration also, the
total amount does not exceed Rs.1 crore. Moreover, this Commission in the
case of Gurdeep Singh H. Puruswani & Anr. Vs. Runwal
Constructions, IV (2015) CPJ 411 (NC) has taken the following
view:-
“Consumer Protection Act, 1986- Section 21(a) (i)- Pecuniary Jurisdiction-
Cancellation of allotment- Value of complaint for purpose of pecuniary
jurisdiction comprises of value of goods or services and compensation comes
to somewhere Rs.63.07,500- Value of service allegedly availed and
compensation claimed is much less than Rs.1 crore- This Commission lacks
jurisdiction to entertain complaint- Directions issued.”
14. On the above examination and relying on Gurdeep Singh H.
Puruswani & Anr.(supra), we are of the view that this Commission
lacks jurisdiction to decide the present consumer complaint and the same
stands dismissed for want of jurisdiction. However, in the interest
of justice liberty is granted to the complainant to seek his remedy in the
appropriate form, which has jurisdiction to decide the complaint in
question.
|
No comments:
Post a Comment