Delhi

StateCommission

CC/1179/2015

MS. SANCHANA GUPTA - Complainant(s)

Versus

EMAAR MGF LAND LTD. - Opp.Party(s)

BHARAT ARORA

11 Mar 2020

ORDER

IN THE STATE COMMISSION: DELHI

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

 

 

Date of Hearing:­­­02.03.2020

                                                                                                              

                                                                   Date of decision:11.03.2020

 

Complaint No.1179/2015

 

IN THE MATTER OF

 

MS. SANCHANA GUPTA

R/o D-53,

Greater Kailash Enclave-II,

New Delhi-110048….Complainant

 

VERSUS

 

EMAAR MGF LAND LIMITED

ECE House, 28, Kasturba Gandhi Marg,

New Delhi-110001

 

Also at:-

Emaar Business Park,

Mehrauli, Gurgaon Road,

Sikandarpur Chowk, Sector-28,

Gurgaon-122002                                   …....Opposite Party

 

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. Shivam, Counsel for the complainant

                   Sh. Rajiv Aggarwal, Counsel for the OPs

 

ANIL SRIVASTAVA, MEMBER

JUDGEMENT

1.           Short question for adjudication in this complaint filed before this Commission under Section 17 of the Consumer Protection Act 1986, the Act, by Ms. Sanchana Gupta, resident of New Delhi, for short complainant, against the Emaar MGF Land Limited, hereinafter referred to as OPs, is whether the complainant is entitled for the refund of the amount deposited for the purpose of purchase of a 4BHK flat in OPs project “EKAANTAM” at Sector 112/113, Dwarka Expressway, Gurgaon which flat was not delivered within the time as agreed to and if so, whether this Commission can adjudicate the complaint, the cost of flat being approximately Rs. 2-2.5 Cr which is beyond the pecuniary jurisdiction of the State Commission relying on Section 17(1) of the Act and secondly, the allotment letter having not been issued, whether the complainant is a consumer.
2.           Facts of the case necessary for the adjudication of the complaint are these.
3.           On the advertisement and advancement of the OPs, the complainant had deposited an amount of Rs. 15 lakhs to the OPs for the allotment of a 4BHK flat in the OPs project named Ekaantam at Sector 112/113 Dwarka Expressway Gurgaon on 25.01.2013. Allotment letter was agreed to be handed over in six to seven days. Cost of the flat as per the averment of the complainant is approximately Rs. 2-2.5 Cr. But no allotment was made despite several serious sincere efforts and exercise undertaken by the complainant. In these circumstances he had sought for the refund which refund not having been done despite a legal notice, this complaint has been filed praying for the relief as under:-

 

It is, therefore, most respectfully prayed that this Hon’ble Forum may graciously be pleased to summon the OP and grant the following reliefs in favour of the complainant and against the OP:-

1. Direct the OP to make the payment of the amount paid Rs. 15,00,000/- along with interest @ 24% per annum from 25.01.2013 till the date of payment;
2. Direct the OPs to pay Rs. 20,00,000/- towards compensation, deficiency in services, mental tension, agony, harassment, hardship, financial loss and inconvenience;
3. Direct the OP to pay Rs. 1,00,000/- as cost of litigation, or
4. Pass any other or further order(s) as this Hon’ble Forum may deem fit and proper in the facts and circumstance of the case and in the interest of justice in favour of the complainant and against the OP.

 

4.           The OPs have filed their written statement resisting the complaint primarily on the ground that the complainant is not a consumer and secondly the transaction done by the complainant is for investment and for profit. Evidence have been filed by both sides. Written arguments are also on record.
5.           This matter was listed before this Commission for final hearing on 02.03.2020 when the counsel for both sides appeared and advanced their arguments, the complainant for the refund of the deposited amount and the OPs for the dismissal of the complainant on the ground that the complainant is not a consumer and thus not entitled to raise a consumer dispute I have perused the records of the case and given a careful consideration to the subject.
6.           It is an undisputed fact that the allotment was not made. The legal question which therefore arises for consideration at this stage is whether in the absence of allotment to the complainant, he or she can be said to be a consumer of the OPs. The question has been adjudicated by the Hon’ble NCDRC in the matter of Yashwant Authority and ors MANU/CF/0301/2016, RP No. 3193/2015 decided on 01.08.2016 holding as under:-

 

As far as a person who applies for allotment of a plot/flat is concerned, he will not be a ‘consumer’ within the meaning of Section 2(1) (d) of the Act, if neither any allotment is made to him nor he is registered for and awaiting such an allotment.  Such a person cannot be said to have hired or availed the services of the concerned development authority in connection with housing.  Mere submission of an application for allotment, which does not result either in allotment or registration and consequent inclusion in the awaiting list for such an allotment, does not confer upon him the status of a ‘consumer’ as defined under Section 2(1) (d) of the said Act.

 

7.           Secondly by the admission of the complainant the cost of the flat is approximately Rs. 2-2.5 Cr. Section 17(1)(a) of the Act posits as under:-

Subject to the other provision of the Act, the State Commission shall have jurisdiction

1. )To entertain—                                                                                                                                                                                                               ​a. Complaints where the value of the goods or services and compensation, if any, claimed 2[exceeds rupees twenty                               lakhs but does not exceed rupees one crore]; and

 

This makes it clear that this Commission is handicapped to hear and to dispose of the complaint if the value of goods is more than Rs. One Crore.

8.           At this stage I may refer to the judgement of the Three Member Bench of the Hon’ble National Consumer Disputes Redressal Commission in the matter of Ambrish Kumar Shukla vs. Ferrous Infrastracture Pvt. Ltd. decided on 07.10.2016 in CC no. 97/2016 holding inter alia, as under:-

 

“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 the 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 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 crore, a manufacturing defect is found in the machine and the cost of removing the said defect is Rs. 10 lacs, it is the aggregate of the sale consideration paid by the consumer for the machine would determine the pecuniary jurisdiction of the consumer forum. Similarly, if for instance, a house if sold for more than Rs. 1 crore, certain defects are found in the house and the cost of removing those defect is Rs. 5 lacs, the complaint would have to be filed before this Commission, the value of the services itself being more than Rs. 1 crore.

 

9.           Hence from this account also this complaint is not maintainable before this Commission the value of the property being more than Rs. One Crore. Ordered accordingly leaving the parties to bear the cost.
10.  A copy of this order be forwarded to the parties to the case free of cost as is statutorily required.
11.  File be consigned to records.

 

 

(ANIL SRIVASTAVA)

MEMBER