Priyanka Saha & Anr vs Anik Industries Ltd

This complaint has been filed by the complainant Smt. Priyanka Saha & Anr. against the opposite party, Anik Industries Ltd.

Brief facts of the case as alleged in the complaint are that on 06.03.2017 the complainants visited site office of Óne Rajarhat' Project of Ruchi group and made application for allotment of Flat No.C2/16B and in this regard also made payment of Rs.3,00,000/- by cheque. On 15.03.2017 opposite party sent allotment cum demand notice for payment of first and second instalment, which was due on 30.03.2017. On 25.04.2017, Mr. Syamlendu Saha (father of complainant No.1) on behalf of complainants sent an e-mail to opposite party enclosing a letter dated 24.4.2017, where he requested them, to cancel booking and to refund advance of Rs.3,00,000/- after deducting 20%. On 12.07.2017, the booking was cancelled by the opposite party. On 13.09.2017, vide email by the opposite party claimed that they are entitled to recover service tax of Rs.2,59,702/- with interest of Rs.88,111/- and no refund is payable. Complainants sent email to opposite party dated 17.10.2017 that there is no question of service tax, as no payment was made. Complainants have filed this complaint with the following prayers:-

"(a) thereby ordering the respondent to refund the abovesaid sum of Rs.3,00,000/- along with the interest @ 18% per annum to the complainant in the interest of justice.

(b) Ordering the respondent to pay damages/compensation to the complainant to the tune of Rs.50,00,000/- (rupees fifty lacs only) for causing hardship, harassment, mental pain, agony, depression, frustration, monetary, wastage of time conveyance, loss in tax benefits etc. in the interest of justice.

Any other order as deemed fit and proper be also passed in favour of the complainant and against the opposite party.

Heard the learned counsel for the complainants at the admission stage.

Learned counsel reiterated the facts as stated above. It was stated that the opposite party cannot usurp the amount paid by the complainants and complainants are entitled for refund. It was argued that in the light of decision of the larger Bench of this Commission in the matter of Consumer Case No.97 of 2016, Ambrish Shukla and Ors. Vs. Ferrous Infrastructure Pvt. Ltd., decided on 07.10.2016 (NC), the total consideration of the apartment is to be considered for deciding the pecuniary jurisdiction of the consumer forum. As the amount of total consideration is Rs.1,22,08,730/- which is more than rupees one Crore, this Commission has pecuniary jurisdiction to decide the instant complaint case.

I have considered the arguments advanced by the learned counsel for the complainants and have examined the material on record. It is clear that the main request is for refund of the deposited amount of Rs.3,00,000/- with 18% interest per annum. Apart from this the complainants have also requested for a compensation of Rs.50,00,000/-. The section 21(a)(i) of the consumer protection act,1986 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 goods or services and compensation , if any claimed, exceed {rupees one crore}"

This Commission has decided the issue of pecuniary jurisdiction in the matter of Ambrish Kumar Shukla & Ors. (supra). The same judgment in para 15 while giving the gist of answers to various questions, mentions the following:-

"15. Issue No. iii

The consideration paid or agreed to be paid by the consumer at the time of purchasing the goods or hiring or availing of the services, as the case may be, is to be considered, along with the compensation, if any, claimed in the complaint, to determine the pecuniary jurisdiction of a Consumer Forum."

From the above it is clear that the consideration paid at the time of hiring of the service of the opposite party may also decide the pecuniary jurisdiction in certain cases, particularly in cases of refund where no further amount is to be paid. In the present case only Rs.3,00,000/- has been paid and therefore, looking from this angle this Commission does not have the pecuniary jurisdiction to decide the present complaint. The value of consideration as per the definition of "consumer" given under Section 2(1)(d) of the Consumer Protection Act, 1986 includes "partly paid and partly promised". Thus, in case of refund of the amounts paid to the opposite party/builder, there would only be the element of "partly paid" and the element of "promised to be paid" would be missing. Thus, the consideration in a case of refund would only mean the amount paid and therefore, consideration paid in the above quoted observation in decision in Ambrish Kumar Shukla & Ors.(supra) could be only the amount paid by the complainants to the opposite party and this shall decide the pecuniary jurisdiction of the consumer forum. Obviously, there is difference in the cases where parties want to go ahead and conclude the sale of goods or availment of services and where one party is only seeking refund and thereby clearly deciding for non-execution of the agreement. Thus, the value of service in a complaint case seeking refund of the paid amount would be limited to the amount paid whose refund has been sought.

From the above discussion, it is clear that the basic amount paid by the complainants is only Rs.3,00,000/- that is required to be refunded along with interest. Thus, this figure does not cross the figure of Rupees one crore. Hence, this Commission does not have the pecuniary jurisdiction to entertain the present complaint. Even if the compensation of Rs.50,00,000/- is also added to the amount of refund along with interest, the total figure would not cross the figure of Rupees One Crore. It is necessary to mention here that the complainants have demanded a highly exaggerated compensation of Rs.50,00,000/- for main claim of Rs.3,00,000/- without giving any breakup or special justification of the same.

On the basis of the above discussion, the present complaint is dismissed for want of pecuniary jurisdiction. However, liberty is granted to the complainants to file the consumer complaint for refund of Rs.3,00,000/- before the concerned District Forum, which shall decide the complaint on merits without raising the issue of pecuniary jurisdiction if the claim is kept within Rs.20,00,000/-. The time for pendency of the complaint before this Commission shall not be counted for the purpose of limitation.