NCDRC Consumer Protection Act, 1986- Section 21(a) (i)- Real Estate - pecuniary jurisdiction -Methodology to calculate value of consideration

Consumer Protection Act, 1986- Section 21(a) (i)- Real Estate - pecuniary jurisdiction -Methodology to calculate value of consideration 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

CONSUMER CASE NO. 1457 OF 2015

1. PRAVEEN MEHTA A-215, MALVIYA NAGAR, JAIPUR, RAJASTHAN	...........Complainant(s)
Versus
1. BENGAL UNITECH UNIVERSAL INFRASTRUCTURE PVT. LTD. 6, COMMUNITY CENTRE, SAKET, NEW DELHI.	...........Opp.Party(s)

BEFORE:
	HON'BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
	HON'BLE MR. PREM NARAIN, MEMBER

For the Complainant :

Mr. Nair Renjith Ramesh and Mr. Anil Sharma, Advocates with Mr. Praveen Mehta, complainant in person

For the Opp.Party :

Dated : 29 Mar 2016

ORDER
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.

......................J

V.B. GUPTA

PRESIDING MEMBER

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PREM NARAIN

MEMBER