Asha Pandey vs Vatika Ltd

V.K. Jain, J.

The complainant booked a residential villa with the opposite party in a project namely 'Bellevue Villa', later renamed 'Signature 2 Villa' which the opposite party was to develop in Sector 82-A of Gurgaon. The villa No. 53/240 / Simplex 1BR was allotted to the complainant for a consideration of Rs.79,64,920/-. The parties executed an agreement dated 9.9.2009, incorporating their respective obligations in respect of the aforesaid transaction. As per Clause 11.1 of the aforesaid agreement, the construction was to be completed within a period of three years from the execution of the agreement. The construction therefore, ought to have been completed on 9.9.2012. However, before expiry of the aforesaid time limit, the parties entered into an Addendum dated 13.5.2012, which was signed by the complainant Asha Pandey as well as the authorized signatory of the opposite party. In terms of the aforesaid addendum, it was agreed that instead of the originally allotted villa, villa No. S-22 of ST 82 D1-6 would be allotted to the complainant. All other terms and conditions of the agreement dated 9.9.2009 remained to hold good and valid for the newly allotted villa and all the payments made by the complainant against the previously allotted villa were treated as payment of the sale consideration of the new villa. The possession of the villa therefore ought to have been delivered to the complainant on or before 9.9.2012. The grievance of the complainant is that the possession of the villa was not even offered despite she having paid Rs.24,24,946/- to the opposite party. The complainant is therefore before this Commission, seeking possession of the aforesaid villa along with compensation etc.

The complaint was resisted by the opposite party on several grounds including that this Commission does have the pecuniary jurisdiction to entertain the complaint.

In terms of Section 21 of the C.P. Act, this Commission possesses the requisite pecuniary jurisdiction to entertain the complaint where the value of the goods or services as the case may be, and the compensation, if any, claimed in the complaint exceeds Rs.1.00 crore. As held by a Three-Member Bench of this Commission in Ambrish Kumar Shukla Vs. Ferrous Infrastructure Pvt. Ltd. CC No. 97 of 2016, decided on 07.10.2016, the value of the services in such a case would mean the sale price agreed to be paid by the flat buyer to the builder for the apartment. Therefore, the value of the services in this case was Rs.79,64,920/-.

As noted earlier, the possession of the villa ought to have been delivered to the complainant by 9.9.2012. This complaint was instituted in July, 2015. Therefore, at best, the complainant would be entitled to compensation for about 34 months, for the delay in delivery of possession. This Commission has not awarded compensation in the form of interest at a rate exceeding 12% per annum in a case where the complainant is seeking possession of the house, along with compensation. If compensation @ 12% per annum is computed on the amount paid by the complainant to the opposite party with effect from the committee date for delivery of possession, i.e. 13.9.2012, till the date on which this complaint was instituted, it comes to much less than Rs.10.00 lacs. If the compensation computed in the aforesaid manner is added to the sale consideration of Rs.79,64,920/- the aggregates does not come to Rs.1.00 crores or a higher amount. Therefore, this Commission does not possess the requisite pecuniary jurisdiction to entertain the complaint.

The next question which arises for consideration is that as to how this complaint should now be dealt with considering that it is pending before this Commission for about three years and evidence has been led by both the parties. Confronted with such a situation, this Commission vide its order dated 31.1.2017 passed in CC/198/2015 Dushyant Kumar Gupta Vs. Today Homes & Infrastructure Pvt. Ltd. and connected matter, 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."

The learned counsel for the complainant states that the complainant will present the complaint before the Haryana State Consumer Disputes Redressal Commission at Panchkula within four weeks of receiving the same from the Registry and requests that a date may be fixed for the appearance of the parties before the said State Commission.

The complaint is disposed of with the following directions:

(i) The complaint be returned to the complainant , along with an endorsement containing the date of presentation and return of the complaint, the name of the complainant 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 Haryana State Consumer Disputes Redressal Commission within four weeks thereafter;

(iii) The parties shall appear before the Haryana State Consumer Disputes Redressal Commission at 10.30 a.m. on 17.08.2018;

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

The State Commission shall decide the complaints in terms of Para 12 of this Order.

There shall be no order as to costs.