JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL)

          The complainants booked a residential apartment with the OP in a project namely ‘Gurgaon Greens’ which the OP is developing in Gurgaon.  Apartment No. GGN-08-702 in the aforesaid project was allotted to the complainants for a consideration of Rs.1,25,37,036.53/-.  The parties then executed a Buyers Agreement on 01.04.2013 incorporating their respective obligations in respect of the said allotment.  In terms of clause 14(a) of the agreement subject to force majeure circumstances and subject to the allottees complying with the terms and conditions of the agreement, the possession was proposed to be handed over within 36 months from the start of the construction though a grace period of five months was also available to the OP for the limited purpose of applying and obtaining the Completion Certificate/Occupancy Certificate in respect of the unit and/or the project.  Therefore, the construction of the apartment ought to have been completed by 01.04.2016 though the Occupancy Certificate could be applied within next five months.  The complainants have made payment of Rs.40,36,297/- to the OP but the possession has not been offered to them.  The complainants are therefore, before this Commission seeking refund of the amount paid by them to the OP with compensation etc.

2.      The complaint has been resisted by the OP which has admitted the allotment made to the complainants as well as the payment received from them.  It has however, been stated that the complainants are in default in making payment of the balance sale consideration.  They having not paid the fifth installment demanded vide letter dated 31.01.2017 as also the other installments demanded thereafter.  This is also the contention of the learned counsel for the OP that since the amount paid by the complainants is less than Rs.1 Crore and even the aggregate of the amount paid by them and interest on that amount does not come to more than Rs.1 Crore.  This Commission lacks pecuniary jurisdiction to entertain the Consumer Complaint.  Yet another submission made by the learned counsel for the OP is that in view of the provisions contained in Real Estate Regulatory Authority Act (RERA), this Commission lacks jurisdiction to entertain the Consumer Complaint. 

3.      The learned counsel for the OP also states that this being a project covered by RERA, they had obtained time till 31.12.2018 from RERA which has since been extended upto 01.12.2019.  This is also his submission that the OP has already applied for the grant of the requisite Occupancy Certificate on 31.12.2018. 

4.      As far as the pecuniary jurisdiction of this Commission is concerned, in view of Section 21 of the Consumer Protection Act, this Commission possesses the requisite pecuniary jurisdiction where the value of the goods purchased or the services hired or availed as the case may be exceeds Rs.1 Crore.  Thus, the pecuniary jurisdiction is linked to the value of the goods or services, and not to the cost/value of the defect/deficiency in the goods or services, as the case may be.  As held by a Three-Members Bench of this Commission in Ambrish Kumar Shukla Vs. Ferrous Infrastructure & Ors. Vs. Ferrous Infrastructure Pvt. Ltd. on 07.10.2016, the value of the services in such a case would mean the sale consideration agreed to be paid by the allottee to the builder.  Since, admittedly, the said consideration was more than Rs.1 Crore, this Commission possesses the requisite pecuniary jurisdiction to entertain the complaint.  As far as the contention that since the amount paid by the complainants alongwith interest on that amount comes to less than Rs.1 Crore and therefore, this Commission lacks the pecuniary jurisdiction, the issue came to be considered by this Commission in CC No. 508 of 2017 Pradeep Kumar Verma & Anr. Vs. M/s Supertech Limited, decided on 27.08.2018 and the following view was taken:

4.    The first plea advanced by the learned counsel for the opposite party is that this Commission lacks pecuniary jurisdiction to entertain this complaint.  In support of her contention she relies upon the decision of a Coordinate Bench of this Commission in CC/1195/2017 Narendra Shah & Anr. Vs. Supertech Ltd. decided on 24.5.2017.  The aforesaid decision, in my view, is contrary to the decision of a Three-Members Bench of this Commission in Ambrish Kumar Shukla Vs. Ferrous Infrastructure Pvt. Ltd. CC No. 97 of 2016, decided on 07.10.2016 and therefore, does not constitute a binding legal precedent.  In terms of Section 21 of the Consumer Protection Act, this Commission possesses the requisite pecuniary jurisdiction to entertain a consumer complaint where the value of the goods or services, as the case may be, and the compensation, if any, claimed, in the consumer complaint exceeds Rupees one crore.  It was held by the Three-Members Bench of this Commission in Ambrish Kumar Shukla (supra) that the value of the service in such cases would mean the sale consideration agreed to be paid by the flat buyer to the builder.  The amount actually paid by the flat buyer to the builder would have absolutely no relevance in such a case, the only relevant factors being the value of the service i.e. the sale price agreed to be paid by the flat buyer to the builder and the compensation claimed in the consumer complaint.  For instance, if a flat buyer agrees to purchase a residential house for a consideration of more than Rupees one crore, but pays only Rs.10.00 lacs to the builder and is aggrieved on account of the builder having failed to honour his contractual commitment, the appropriate Forum, if he wants to file a consumer complaint, would be this Commission, since the value of the service i.e. the price which he had agreed to pay to the builder for the flat was more than Rupees one crore. In the present case, admittedly, the sale price of the flat was agreed at more than Rs.1,38,00,000/-.  Therefore, it is only and only this Commission which would have pecuniary jurisdiction to entertain a consumer complaint.

5.      An appeal being Civil Appeal Diary No.39429 of 2018 Supertech Limited Vs. Pradeep Kumar Verma & Anr. was preferred before the Hon’ble Supreme Court against the decision of this Commission in Pradeep Kumar Verma (supra) and the said appeal was dismissed vide order dated 19.11.2018  which reads as under:

          “Delay condoned.

          We see no merit in this appeal.

          The civil appeal is, accordingly, dismissed.

          Pending application(s), if any, shall stand disposed of.”

6.      In Kunhayammed & Ors. Vs. State of Kerala & Anr. (2000) 6 SCC 359, the Hon’ble Supreme Court held as under:

41.    Once a special leave petition has been granted, the doors for the exercise of appellate jurisdiction of this Court have been let open. The order impugned before the Supreme Court becomes an order appealed against. Any order passed thereafter would be an appellate order and would attract the applicability of doctrine of merger. It would not make a difference whether the order is one of reversal or of modification or of dismissal affirming the order appealed against. It would also not make any difference if the order is a speaking or non- speaking one.

44.    To sum up, our conclusions are :-

1. Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law.

(vi)    Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation.

7.      In view of the decision of the Hon’ble Supreme Court in Civil Appeal Diary No.39429 of 2018, the issue is no more res integra as far as this Commission is concerned.  The learned counsel for the OP states that the said issue has been referred to a larger Bench of this Commission but, considering the above referred order of the Hon’ble Supreme Court, I need not await the outcome of the reference made to the larger Bench.  Coming to the contention that in view of the provisions contained in RERA, this Commission lacks jurisdiction to entertain a Consumer Complaint, the said issue is no more res integra in view of this Commission in CC 1764 of 2017 Ajay Nagpal Vs. M/s Today Homes & Infrastructure Pvt. Ltd. and connected matters, decided on 15.04.2019 which reads as under:

“40.   From the various decisions of the Hon’ble Supreme Court referred to above, the following principles emerge:-

(i)      The Consumer Protection Act, 1986 is a supplement Act and not in derogation of any other Act;

(ii)     Any Consumer who is aggrieved by any defect in goods purchased or deficiency in service as also regarding unfair trade practice, can approach the Consumer Fora by filing the complaint under the Act.  Even a Class Action Complaint is permissible under the Act. 

(iii)    The Consumer Fora constituted under the Consumer Protection Act, 1986 are not Civil Courts. 

(iv)    The Consumer Fora can provide for the reliefs as contemplated under Section 14 of the Act.

(v)     A Consumer cannot pursue two remedies for the same cause of action. However, if a Consumer has not approached for redressel of its grievance under the particular Statute, the Consumer can approach the Consumer Fora under the Consumer Protection Act.  But, if the Consumer had already approached the Authority under the relevant Statute, he cannot simultaneously file any complaint under the Consumer Protection Act.

(vi)    Mere availability of a right to redress the grievance in a particular Statute will not debar the Complainant/Consumer from approaching the Consumer Fora under the Act.

(vii)   Even though under Sections 14, 15, 18 and 19 of RERA, various provisions have been made which are to be followed by the Developer/Promoters and the rights and duties and the return of amount as compensation as also rights and duties of Allottees, yet same cannot mean to limit the right of the Allottee only to approach the Authorities constituted under the RERA, he can still approach the Consumer Fora under the Consumer Protection Act.

(viii)   Section 71 of RERA which gives the power to adjudicate, does not expressly or impliedly bar any person from invoking the provisions of the Consumer Protection Act. It has also given a liberty to the person whose Complaint is pending before the Consumer Fora to withdraw it and file before the RERA Authorities. 

(ix)    Section 79 of RERA only prohibits the jurisdiction of Civil Court from entertaining any suit or proceeding in respect of any matter which can be decided by the Authorities constituted under the RERA. As the Consumer Fora are not Civil Courts, the provisions of Section 79 which bar the jurisdiction of Civil Courts, will not be attracted. So far as to grant injunction is concerned, only that power has been taken away by Section 79. But, it does not, in any manner, effect the jurisdiction of the Consumer Fora in deciding the Complaints. Both, the Consumer Protection Act, 1986 and the Real Estate (Regulation and Development) Act, 2016 are supplemental to each other and there is no provision in the Consumer Protection Act which is inconsistent with the provisions of RERA.   

41.     Applying the aforesaid principles to the present case, we are of the considered opinion that this Commission has jurisdiction to proceed with the Complaint Cases filed by the Consumers and neither Section 71 nor Section 79 and nor Section 89 creates any embargo or prohibits the jurisdiction of the Consumer Fora.”

           Recently, in Civil Appeal No. 2432 of 2019 Khoday Distilleries Ltd. (Now Known as Khoday India Limited) & Ors. Vs. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd., Kollegal (Under Liquidation) Represented by the Liquidator, decided on 01.03.2019, a three Judges Bench of the Hon’ble Supreme Court inter-alia held as under:

          27) From a cumulative reading of the various judgments, we sum up the legal position as under:

          (vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation.

Therefore, the order passed by this Commission on 27.08.2018 in Pradeep Kumar Verma (supra) stands merged in the order passed by the Hon’ble Supreme Court on 19.11.2018 in Civil Appeal Diary No. 39429 of 2018.

8.      Coming to the merits of this case, as noted earlier, the construction was to be completed within three years from the date on which it had commenced.  The construction admittedly, had commenced on 14.06.2013.  Therefore, the construction should have been completed by 14.06.2016.  Admittedly, the construction was not complete by that date, the Occupancy Certificate having been applied only on 31.12.2018, about 2½ years after the aforesaid deadline had already expired.  It is not known when the Occupancy Certificate will actually be delivered to the OP.  The first demand which the complainants did not pay came to be raised by the OP on 31.01.2017.  The said demand was payable on casting of the ground floor roof slab.  The time period not only for completion of the construction but even for applying for the Occupancy Certificate, arrived at after giving grace period of five months given to the builder had already expired by that time.  The complainants in my view, could not have been expected to keep on making further payments and thereby sinking more and more money into the project of the OP when demand was raised after the last date for the completion of the project had already expired and the construction was still at a very initial stage, it being at the stage of casting of the ground floor roof slab.  Therefore, the default on the part of the complainants in making payment of the installment demanded on 31.01.2017 and thereafter, cannot dis-entitle them from seeking refund of the amount paid by them to the OP on the ground that the OP had failed to deliver possession within the time limit stipulated in this regard in the Buyers Agreement and even within a reasonable time period thereafter, the delay as on today being almost three years, since the construction ought to have been completed by 14.06.2016.

9.      The learned counsel for the OP also submits that the complaint is barred by limitation since the complainants applied for the refund way back in April 2013.  However, the OP neither refused refund nor did it cancel the booking on account of the non-payment of the installments demanded on or after 31.01.2017.  The e-mail sent by the OP to the complainants on 30.08.2013 would show that on receipt of the request from the complainants for cancellation, the OP while informing that the same was governed by the terms and conditions of the agreement, requested them to re-consider their decision.  In these circumstances, the complaint, in my view, cannot be said to be barred by limitation and would give a continuous/recurring cause of action to the complainants to approach this Commission.

10.    At this stage, the learned counsel for the OP states on instructions that they are ready to refund a sum of Rs.63,45,517/- to the complainants within two months from today in full and final settlement of their claim.  The aforesaid offer is acceptable to the complainants.  The complaint is therefore, disposed of with the following directions:

1. The OP shall pay a sum of Rs.63,45,517/- to the complainants within two months from today.

2. If the payment is not made within two months from today, the principal amount shall carry interest which has been mutually agreed between the parties w.e.f. two months from today till the date of payment and this order will also become enforceable under Section 25 & 27 of the Consumer Protection Act.

3. The OP shall also pay a sum of Rs.25,000/- as the cost of litigation to the complainants alongwith the previous costs.

4. This order being a consent order, will not be treated as a binding precedent.