Punjab

StateCommission

CC/499/2018

N.D.Chopra - Complainant(s)

Versus

GMADA - Opp.Party(s)

M.S.Sidhu

07 May 2019

ORDER

FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION, PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

 

              Consumer Complaint No.499 of 2018

                                                           Date of Institution:  12.06.2018

                                                           Order reserved on: 02.05.2019

                                                            Date of Decision :   07.05.2019

         

N.D. Chopra S/o Shri Dhanna Ram, r/o 3860, Sector 32-A, Chandigarh Road, Ludhiana.

                                                                                    .….Complainant

                                        Versus

1.       Greater Mohali Area Development Authority, Sector 62, SAS Nagar (Mohali), through its Chief Administrative Officer/Estate Officer.

2.       The Chief Administrative Officer, Greater Mohali Area Development Authority, Sector 62, SAS Nagar (Mohali).

                                                                    .....Opposite Parties

Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date).

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member

              Shri Rajinder Kumar Goyal, Member

Present:-

          For the complainant        :  Sh. N.D. Chopra in person

          For the opposite parties            :  Sh. Anuj Kohli, Advocate

          ……………………………………………………………………….

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                    The complainant has filed this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act") against opposite parties (in short the 'OPs') on the premise, that he applied for allotment of one flat in Purv Premium Apartments Sector 88, SAS Nagar (Mohali), the project of OPs, under general category, vide application bearing serial no.38184 and he was successful in draw of lots, vide serial no.1084 held on 20.03.2012 and OPs intimated him about the same, vide letter dated 23.03.2012 Ex.C-1. Thereafter, flat no.A-103, type-II was allotted to him and letter of intent dated 22.05.2012 was issued to him by OPs vide Ex.C-2. He deposited the total sale amount of Rs.78,41,850/- including interest as price of above flat. The possession of said flat was to be handed over to him within three years from the date of issuance of letter of intent dated 22.05.2012 by OPs. As per clause 3(ii) of letter of intent, in case OPs remained unable to deliver the possession of above flat within stipulated period, then allottee shall have the right to withdraw from the scheme by moving an application to Estate Officer and in that eventuality, OPs shall refund the entire deposited amount with 8% interest compounded annually. He wrote letter dated 07.11.2016 to OPs through registered post addressed to Estate Officer GMADA requesting to complete the construction work and to hand over the possession of the said flat no.A-103 to him, but to no effect. He moved another application dated 03.07.2017 to Estate Officer GMADA, wherein he requested to handover the possession of flat to him and to make payment of interest @18% per annum on the deposited amount for the period of delay in delivering the possession, but to no effect. He again issued notice to OPs dated 10.10.2017 for refund of entire deposited amount vide Ex.C-5, but OPs sent bank draft for an amount of Rs.70,36,344/- in the months of December 2017, whereas OPs were liable to refund the entire deposited amount of Rs.78,41,850/- with 18% interest per annum thereon to him. The OPs deducted the 10% of the deposited amount unauthorizedly out of the whole deposited amounts. He served legal notice dated 11.01.2018 upon OPs for making the payment of Rs.61,00,000/- within one week from the date of receipt of said notice, but to no effect. He has, thus, prayed for direction to OPs to pay the amount of Rs.61 Lakhs alongwith pendent-lite and future interest @18% per annum on account of delayed re-payment of the amount deposited by him and for harassment as well.

2.                 Upon notice, OPs appeared and filed written reply raising preliminary objections that the complaint is not competent. Any deficiency in service or unfair trade practice on the part of OPs was denied. The complainant purchased the flat for speculative purposes for generating profits, as he practiced as an advocate at Ludhiana and is not consumer in this case. There is an arbitration clause in allotment letter and dispute if any is liable to be settled by Chief Administrator GMADA, as Arbitrator and hence the complaint is not maintainable. The OPs admitted the fact that complainant was allotted above flat in Purv Premium Apartment Sector 88 SAS Nagar Mohali, as he remained successful in draw of lots. Letter of intent dated 22.05.2012 was issued to him and he deposited the different amounts by accepting the terms and condition of letter of intent. Thereafter, allotment letter and offer of possession letter was issued to him, vide letter no.23077 dated 31.05.2017 and vide condition no.5 of it, whereby he was required to take the physical possession of the said flat within 30 days of the issue of above allotment and offer of possession letter. The complainant made request for surrender of the flat due to non-fulfillment of alleged terms and conditions, as per his letter dated 11.10.2017. He sought refund of the amounts, as per letter of intent. Clause 3(ii) of letter of intent is not applicable in this case. Refund could only be made to him after cancelling the allotment under Section 45(3) of Punjab Regional and Town Planning and Development (Amendment) Act, 2013 after making deduction of 10% of the total amount of the consideration money, interest and other dues payable. The OPs controverted the other averments of the complainant regarding his entitlement to refund of entire deposited amount with 8% compounded interest annually under condition no.3(ii) of letter of intent. The OPs further averred that since the complainant has exercised the option of withdrawal on 11.10.2017 from the scheme after issuance of letter-cum-offer of possession letter dated 31.05.2017, hence the condition no.3(ii) of letter of intent is not applicable in this case. The OPs prayed for dismissal of the complaint.

3.                 We have heard the learned counsel for the parties at considerable length and also examined the record of the case. The counsel for the OPs contended that this Commission has no pecuniary jurisdiction to try the complaint, as the value of unit in this case inclusive compensation in the shape of interest exceeds Rs.One crore and hence the complaint is not cognizable by this Commission. This is fundamental duty of this Commission to look into this matter as to whether it is within the pecuniary jurisdiction of this Commission to decide it before deciding it on merits. Record of the case has been perused by us. The tentative price of the apartment is Rs.69 lakhs vide Ex.C-2, the letter of intent dated 22.05.2012. The possession of the allotted flat was to be handed over to complainant by OPs after completion of development work within three years (36 months) from the date of letter of intent i.e. 22.05.2012 and that period had expired on 22.05.2015. As per condition no.3(ii) of letter of intent, in case OPs remained unable to deliver the possession within stipulated period, the allottee shall have the right to withdraw from the scheme by moving an application to Estate Officer GMADA, entitling him to refund of deposited amount with 8% compounded interest annually. Ex.C-3 is the copy of legal notice served upon OPs by complainant supported by postal receipt. Ex.C-4 is the application moved by complainant to OPs for handing over the possession of said flat and for payment of interest @18% per annum for the period of delay of possession. This letter is dated 03.07.2017 supported by postal receipt. Vide Ex.C-5 dated 10.10.2017, the complainant sought refund of deposited money from OPs, as per letter of intent. He served legal notice dated 11.01.2018 upon OPs for making the payment of Rs.61 Lakhs, supported by postal receipts. He paid total price of Rs.78,41,850/- to OPs in this case and the latter had already refunded the amount of Rs.70,36,344/- to him, through bank draft in December 2017. He has already received the amount of Rs.70,36,344/- and now seeks the recovery of the amount of Rs.61 Lakhs as interest @18% per annum over the amount illegally deducted with future interest thereon for delayed repayment of the deposited amounts. The tentative price of the flat is Rs.69 lakhs in this case and as per plan B of letter of intent, 5% of the tentative price was to be payable at the time of possession. The complainant claimed Rs.61 Lakhs as interest @18% per annum thereon. The total amount of interest of Rs.61 Lakh added with the value of the flat as Rs.69 Lakhs comes to the tune of Rs.1,30,00,000/-. On this point, counsel for OPs also moved an application that this Commission has no pecuniary jurisdiction to try the complaint as subject matter in this case exceeds the cap of Rs.One crore, which is beyond the jurisdiction of this Commission. As per law laid down by larger bench of National Commission in "Ambrish Kumar Shukla & others Vs. Ferrous Infrastructure Pvt. Ltd." 2016(4)CPR-83 and in M/s Omaxe Chandigarh Extension Developers & others Vs. Lalitha Saini" in F.A.1364 of 2017 decided on 21.08.2017 and in "Dinesh Kumar Yadav Vs. Today Homes and Infrastructure Pvt. Ltd." 2017(2)CPJ-293, that the value of the complaint would be fixed in accordance with total value of the goods purchased or services hired. It is price of the goods or the services and amount of compensation, which have to be taken into account by the Consumer Forum only. The aggregate figure of the price of the flat and the refund of the interest amount of Rs.61 Lakhs thereon takes the figure to more than Rs.One crore in this case. This Commission has pecuniary jurisdiction to try the complaint only where the value of goods or services hired and compensation, which also includes interest does not exceed Rs.One crore under Section 17 of the C.P. Act, 1986. Now, it is settled law that interest is also to be included in computing the aggregate value of the goods or services in determining the pecuniary jurisdiction of the Commission in the shape of compensation. In this view of the matter, the contention of the complainant cannot be accepted that he claims the refund of the amount of Rs.61 Lakhs only as interest over the already refunded amount to him for delayed payment. As per Section 17(1)(a)(i) of the C.P. Act 1986, it is the value of the good or services and compensation, if any, claimed, which has to be considered in determining the pecuniary jurisdiction of the Commission. We find that the subject matter in this complaint exceeds Rs.One crore and hence this Commission is not competent to decide the complaint. The complainant cannot exclude the refund amount to him being major part of the value of the flat by isolating it from this interest of Rs.61 Lakhs, as claimed, as it is not permissible by Section 17(1)(a)(i) of the C.P. Act 1986.

4.                 As a result of our above discussion, we dismiss the complaint for want of pecuniary jurisdiction of this Commission. The complainant is at liberty to file the complaint before competent Forum invested with requisite jurisdiction under law and can invoke Section 14 of the Limitation Act 1963 with regard to time spent for prosecution of this complaint before this Commission.

5.                 Arguments in this complaint were heard on 02.05.2019 and the order was reserved. The certified copies of the order be communicated to the parties as per rules.

6.                 The complaint could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                   (J. S. KLAR)

                                               PRESIDING JUDICIAL MEMBER

                                                      (RAJINDER KUMAR GOYAL)

                                                                      MEMBER

May 07, 2019.                                                                 

(MM)