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

          The complainants in the above referred matters are allottees of the residential flats in a project namely ‘Vistas’ which the opposite party is developing in Sector 70 of Gurgaon.  The grievance of the complainants is that the opposite party failed to deliver possession of the said flats to them on or before the date committed for delivery of possession.  The complainants do not want to wait any more for such possession and therefore have approached this Commission, seeking refund of the amount paid by them to the opposite party, along with compensation in the form of interest. 

2.      In terms of Section 21 of the Consumer Protection Act, this Commission possess the pecuniary jurisdiction to entertain a consumer complaint, where the value of the goods purchased or the services hired or availed, as the case may be, and compensation, if any, claimed in the complaint exceeds Rs.1.00 crores.  As held by a Three-Members Bench of this Commission in Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd. CC No. 97 of 2016, decided on 07.10.2016, the value of services in such cases means the sale consideration agreed to be paid by the buyer to the seller.

3.      Neither this Commission nor the Hon’ble Supreme Court has awarded compensation in the form of interest at the rate higher than 18% per annum where, allottee is seeking refund of the amount paid by him to the builder, along with compensation.  Therefore, if a consumer complaint is filed claiming highly inflated and exaggerated compensation without any basis in law, such a complaint cannot be entertained and adjudicated by this Commission.  It is an admitted position before me that in all these cases, if compensation in the form of simple interest @ 18% per annum is added to the agreed sale consideration, the aggregate does not come to more than Rs.1.00 crore.  Therefore, this Commission lacks pecuniary jurisdiction to entertain these complaints.

4.      The learned counsel for the complainants has pointed out that in CC 548 of 2014 Koshika Agarwal Vs. M/s. Unitech Ltd., & connected matters decided on 31.10.2017, the learned counsel for the opposite party, on instruction, had stated that since the complaints were at the stage of final hearing and were covered by the previous decision of this Commission in Vishal Mehta & Ors. Vs. Unitech Ltd. CC/1191/2015 decided on 19.7.2017, he was not pressing the plea of want of pecuniary jurisdiction.  The contention of the learned counsel is that in view of the stand taken by the opposite party in Koshika Agarwal (supra) it should not be allowed to press the plea of want of jurisdiction in these matters.  The learned counsel for the opposite party however, maintains that he has again taken instructions in the light of the stand taken in Koshika Agarwal (supra) and his instructions are to press the plea of want of pecuniary jurisdiction.  In view of the stand taken by the learned counsel for the opposite party, I am not inclined to disallow the plea of want of pecuniary jurisdiction.

5.      The next question which arises for consideration is as to what course of action should be adopted in respect of these complaints some of which have been pending before this Commission for last more than two years and some of which are pending for last more than one year.  Confronted with such a situation this Commission in CC/198 of 2015 Dushyant Kumar Gupta Vs. Today Homes & Infrastructure Pvt. Ltd.,  decided on 31.1.2017 inter-alia observed and held as under:

“12.    Now I am coming to the complaints which do not come within the pecuniary jurisdiction of this Commission.  The question which arises for consideration as to what course of action should be adopted in respect of these complaints which have been pending with this Commission for the last about 1½ years.  One course can be to dismiss these complaints with liberty to such complainants to institute fresh complaints before the concerned State Commission.  The aforesaid course of action, in my view, would not be fair and reasonable, considering that the complaints are pending for about 1½ years and at one point of time, this Commission held the view that the market value of the flat as on the date of filing of the complaint could be treated as the value of the service in such matters.  In my view, the appropriate course of action in such matters would be to follow the procedure prescribed in Order 7 Rule 10 A of the Code of Civil Procedure.  Though, the aforesaid provision has not been expressly extended to this Commission by Section 13 (4) of the Consumer Protection Act, the principle underlying the said provision can in appropriate cases, be adopted by this Commission, in order to protect the interest of the consumers, while simultaneously ensuring that no prejudice is caused to the service provider by adopting such a course of action.  The opposite party in these cases has filed its written version on the merits of the complaints.  It has also led evidence on merits.  No prejudice would be caused to the opposite party if the complaints are returned for being presented before the concerned State Commission, with a direction to the State Commission to decide them afresh, taking into consideration, the pleadings, affidavits and the evidence including documentary evidence filed by the parties before this Commission provided an opportunity is given to the parties to lead additional evidence and if filed, such additional evidence is also considered along with the evidence, which was filed before this Commission.  The aforesaid course of action besides ensuring a prompt and expeditious disposal of the complaints by a competent Consumer Forum will also ensure that no prejudice is caused to either party in any manner”.

6.      In my view, the course of action adopted by this Commission in Dushyant             Kumar Gupta (supra)  would be appropriate in the present cases as well.  The learned counsel for the complainants states that on being returned the complainants will present the complaints before the Delhi State Consumer Disputes Redressal Commission within three weeks of receiving the same from the Registry.  They also request that a suitable date may be fixed for the appearance of the parties before the State Commission.  The following directions are therefore, issued in these complaints:

(i)      The complaints be returned to the complainant (s), along with an endorsement containing the date of presentation and return of the complaint, the name of the complainant(s) presenting the complaint and a brief statement of reasons for returning the complaint;

(ii)      The complaint shall be returned within one week from today, along with the requisite endorsement and can be presented before Delhi State Consumer Disputes Redressal Commission within two weeks thereafter;

(iii)     The parties shall appear before the Delhi State Consumer Disputes Redressal Commission at 10.30 a.m. on 19.02.2018;

(iv)    The State Commission need not issue a fresh notice requiring parties to appear before it on the aforesaid date.

(v)     The State Commission shall decide the complaints within two months of the parties appearing before it.

(vi)    Since the issues involved in these complaints are already covered by the previous decisions of this Commission, in Vishal Mehta & Ors. Vs. Unitech Ltd. CC/1191/2015 decided on 19.7.2017 and Koshika Agarwal Vs. M/s. Unitech Ltd. in CC/548/2014 and connected matters decided on 31.10.2017, the parties will not be entitled to lead additional evidence before the State Commission.

(vii)   No fresh fee in terms of Rule 9A of the Consumer Protection Rules, 1987 will be required to be paid for instituting these complaints before the State Commission since such fee has already been paid before this Commission.