REKHA GUPTA Mrs Taranjit Kaur and Mr Bhupinder Singh, the complainants have filed the instant consumer complaint against the opposite party M/s EMAAR MGF Land Ltd., alleging deficiency in service on the part of the opposite party in respect of the flat booked by the complainants in the project undertaken by the opposite party. 2. The brief facts of the complaint are that the complainants had applied for allotment of a floor/ unit in the residential gates colony known as ‘Emerald Hills – Floors’ on 10.06.2009. The complainants had paid a sum of Rs.5.00 lakh as earnest/ registration amount to the opposite party on 16.06.2009. Complainants were then allotted a unit no. EHF 267 J SF 017 on the second floor of plot no.17 in Jemma Block of the aforesaid residential gated colony by the opposite party on 10.07.2009. The cost of the floor/unit as per the provisional allotment was Rs.46,50,000/- .The detailed buyers agreement was executed on 01.04.2010. As per clause 13 (1) of the Buyers Agreement, possession of the floor/ unit was to be delivered within 27 months from the date of execution of the agreement, i.e., 30.06.2012. Complainants have paid Rs.45,08,346/- which amounts to 95% of the total sale consideration. The opposite party has not yet handed over the possession of the afore-mentioned floor/ unit to the complainant even after four years from the date committed for possession in the buyers agreement. The complainants have stated that they have recently received an e-mail from the opposite party dated 01.06.2016 wherein the excepted date of delivery was given as May 2017. The complainants have sought the following reliefs: - Direct the opposite party immediately deliver the possession of floor/ unit, i.e., unit no. EHF 267 J SF 017 admeasuring 267 square yards and having super area of 1380 square feet on the second floor of plot no. 17 in Jemma Block, Sector 65, Gurgaon (which is having the current market value of more than Rs.1,00,00,000/- allotted to the complainants.
- Direct the opposite party to immediately pay compensation for delay in delivery of possession of floor/ unit calculated at the rate of at least 12% per annum from the committed date of possession as per Buyer’s agreement (i.e., 30.06.2012) till the date of possession is actually offered to the complainants.
- Direct the opposite party to pay a sum of Rs.10,00,000/- to the complainants as compensation for harassment, inconvenience and mental agony caused by the opposite party.
3. We have heard the argument on the issue of pecuniary jurisdiction: 5. Before adverting to the submissions of learned counsel for the complainants, it would be useful to have a look on Section 21 (a) (i) of the Consumer Protection Act, 1986 ( in short, the Act), which deals with the original jurisdiction of the National Commission to entertain the complaints. Section 21 (a) (i) of the Act, reads as under: “21. 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 one crore. “ 6. On reading of the above it is clear that National Commission has jurisdiction to entertain the complaints where the value of goods or services and the compensation, if any, claimed taken together exceeds rupees one crore. 4. In the instant case, the main plea of the complainant is to seek delivery of possession of the floor/ unit allotted to them. The cause of action of the complainant is that the opposite party despite of having received more than 95% of the consideration amount has failed to deliver the possession of the allotted flat within the period stipulated in the Apartment Buyer Agreement. On perusal of the agreement as also as per the allegation in the complaint the cost of the flat was Rs.45,08,346/-. 5. On perusal of the complaint we find that on the one hand it is claimed that the floor/ unit has not yet completed and on the other hand, the complainants have pegged the market rate of the flat at Rs.1.00 crore without quoting even a single instance of sale of similarly located flat at such a high rate. Further, as per the clause the complainants are seeking interest @ 12% per annum from the committed date of possession as also compensation of Rs.10 lakh and Rs.50,000/- as litigation cost. The counsel for the complainants have contended that the issue of pecuniary jurisdiction has already been decided by the two judgments of the coordinate Bench of this Commission in the matter of Sumeet Singh vs M/s Unitech Limited and Anr., (CC No. 13 of 2015), Rajnish Kumar Rohatagi and Anr. Vs M/s Unitech Limited and Anr. (CC no. 14 of 2015), Abhinav Bhagra and Anr. Vs M/s Unitech Limited and Anr (CC no. 15 of 2015), Dinesh Kumar Yadav vs M/s Unitech Limited and Anr. (CC no. 16 of 2015) decided on 18th January 2016 and in the case of Santosh Johari vs M/s Unitech Ltd., (CC no. 429 of 2014), Neelam Yadav and Anr. Vs M/s Unitech Ltd., (CC no. 431 of 2014), Jayant Kalra and Anr. Vs M/s Unitech Ltd., (CC no. 441 of 2014), Ankur Jain and Anr. Vs M/s Unitech Ltd., (CC no. 442 of 2014), Bhanu Kumar Dravid and Anr. Vs M/s Unitech Ltd., (CC No. 443 of 2014) and Smt Akansha Garg and Anr. Vs M/s Unitech Ltd., (CC No. 464 of 2014) decided on 8th June 2015. 6. The above noted judgments have distinguished by the coordinate Bench of this Commission holding that the above said judgments have been passed without taking into account of Section 21 (a) (i) of the Act which deals with the pecuniary jurisdiction of the Consumer Protection Act, 1986. 7. As against this judgment, the Division Bench of this Commission in Consumer Complaint No.579/2015 titled Gurdeep Singh H. Puruswani vs. Runuwal Constructions pronounced on 11th September, 2015 has taken a different view wherein it is held that as per Section 21 (a) (i) of the Consumer Protection Act, 1986, the value of the service in case of a development project would be the agreed value of the flat”.
8. In this judgment it has observed as under:
“6. Admittedly, the agreed value of flat is Rs.24,87,500/-. Therefore, it is clear that value of the service availed of by the complainants is Rs.24,87,500/- Perusal of para 8 of the complaint would show that complainant during the period 28.08.2006 to 09.01.2008 has paid a sum of Rs.14,92,500/- to the opposite party on different dates. The complainants have claimed 21% interest on the amount paid by him on the delay. Even if the interest on 14,92,500 is calculated w.e.f. 28.08.2006, i.e. payment of first cheque of Rs.3,50,000/-, the interest till date would amount to Rs.28,20,000/- (approx.). Thus, the sum total of the value of service and interest claimed amounts to Rs.53,07,500/- approximately ( i.e. Rs.24,87,500 + Rs.28,20,000) The complainant also claimed compensation of Rs.10,00,000/- for inconvenience caused and harassment. Even if we add that amount for the purpose of computing pecuniary jurisdiction, the total value of the claim amounts to Rs.63,07,500/-, which is much below the limit of Rs.1.00 crore from which the jurisdiction of National Commission starts. 7. Shri Anand Patwardhan, Advocate for the complainant has contended that as per the allegations in the complaint, the present market value of similar flat in the same area is not less than Rs.1,40,00,000/-. It is contended that since the complainant is seeking possession of the flat based upon its market value which more than rupees one crore, the complaint falls within the jurisdiction of National Commission. In support of his contention, learned counsel for the complainant has referred to the judgment of Coordinate Bench of this Commission in bunch of consumer complaints including Consumer Case No.427 of 2014 titled as Satish Kumar Pandey & Anr. Vs. M/s Unitech Ltd. decided on 08.06.2015. 8. We do not find merit in the contention of the learned counsel for the complainant. The present market value of the subject flat in view of the clear provision of Section 21 (a) (i) of the Act has no relevance in this case. As per the above noted provision, the value of the complaint for the purpose of pecuniary jurisdiction comprises of value of goods or services and the compensation, which as per the discussion above comes to somewhere Rs.63,07,500/-. The judgment of the Coordinate Bench relied upon by the complainants is of no avail to them. The Coordinate Bench in para 16 of the judgment has dealt with the issue pertaining to pecuniary jurisdiction of the National Commission. Relevant observations of Coordinate Bench are reproduced as under: 16. It was next contended by the learned counsel for the opposite party that since the sale consideration paid by the complainants was less than Rs.1,00,00,000/- the complaint is maintainable before the concerned State Commission and not before this Commission. Again, I find no merit in the contention. The case of the complainants is that current market value of such apartments is not less than Rs.10,000/- per sq. ft. calculated accordingly the current market value of the individual flats booked by the complainants comes to more than Rs.1,00,00,000/- in every complaint. One of the prayers made in the complaint is to direct the opposite party to handover possession of the flat to the complainants. For the purpose of this relief, the current market value of the flat would be the pecuniary value of the service and since the said value is more than Rs.1,00,00,000/- in each case, it cannot be disputed that only this Commission has the jurisdiction to entertain this complaint. 9. On reading of the aforesaid paragraph, it is clear that the above said observation of the coordinate bench have been passed without taking into consideration Section 21 (a) (i) of the Act which provides for the formula for computing the value of the pecuniary jurisdiction. It appears that the above-noted provisions of the Act was not brought to the notice of the learned Bench. Therefore, in our considered view, the findings of the coordinate Bench being dehors Section 21 (a) (i) is of no help to the complainant. 10. In view of the discussion above, the value of the service allegedly availed by the complainant and the compensation claimed in the complaint is much less than Rs.1.00 crore. Therefore, this Commission does not have jurisdiction to entertain this complaint. The complaint is, therefore, rejected with the observation that complainants shall be at liberty to file fresh complaint on the same cause of action before State Commission Mumbai having jurisdiction to entertain the complaint”. 9. Admittedly, the agreed value of the flat is Rs.46,50,000/-. Therefore, it is clear that the value of the service availed by the complainant is Rs.46,50,000/-. As per paragraph 15 of the complaint, the complainant has paid Rs.45,08,346/-, the complainant has claimed 12% interest on the amount paid by him on the delay. Even, if the interest on Rs.45,08,346/- is calculated with effect from 30.06.2012, the interest still comes to Rs.21,64,486/-. The complainant has further claimed compensation of Rs.10 lakh and Rs.50,000/- as litigation cost. The total value of the claimed amount is about Rs.78,14,486/-, which is much below the limit of Rs.1.00 crore from which the jurisdiction of National Commission starts. 10. In view of the above discussion, the value of the service allegedly availed by the complainant and the compensation claimed in the complaint is much less than Rs.1.00 crore. Therefore, this Commission does not have jurisdiction to entertain this complaint. The complaint is, therefore, rejected with the observation that the complainants shall be at liberty to file fresh complaint on the same cause of action before the appropriate fora having jurisdiction to entertain the complaint. |
