Rakesh Kumar vs M/S Vatika Landbase Pvt. Ltd. & Anr

V.K.Jain, J

The complainant booked a commercial premises with the opposite party in a project, namely, Vatika City Market, Gurgaon. His case is that the said commercial premises was booked by him for the purpose of earning his livelihood after retirement and, therefore, he is a consumer of the opposite party. The sale consideration for the aforesaid commercial premises, according to the complainant was agreed at Rs.4289100/-. The allotment having been cancelled before institution of the complaint, a sum of Rs.3180882/- (Rs.2719992/- + Rs.460890/-) was refunded to the complainant. He is now before this Commission by way of this consumer complaint with the following prayers:-

"(a) Refund the amount of service tax deducted by cheating @ 35,848 Rupees; and

(b) To grant a sum of Rs.1,38,26,700 to enable the complainantto buy a similar property at the similar location at the present Market price ; and

(c) Award interest on the sum of Rs.32,16,730 at the 24% per annum on the amount paid by the complainant from the date of payment till its realization; and

(d) Compensation of Rs.10,00,000 against the deficiency of services, physical pain mental agony and trauma"

The complaint has been contested by the opposite party which has taken a preliminary objection that this Commission lacks pecuniary objection to entertain the complaint since the total cost of the shop was Rs.4608900/- out of which the complainant had paid Rs.3216730/- which was refunded to him after deducting the service tax.

In terms of Section 21 of the Consumer Protection Act, this Commission has pecuniary jurisdiction to entertain a consumer complaint where the value of the goods or services as the case may be and the compensation if any claimed by the complainant exceeds Rs.1 crore. As held by a three-Members Bench of this Commission dated 7.10.2016 in CC No.97 of 2016 -Ambrish Kumar Shukla & Ors. Vs. Ferrous infrastructure Pvt. Ltd., the value of the services in such a case, would mean the sale consideration agreed to be paid by the allottee to the builder. The said amount according to the opposite party was Rs.4608900/-. Even if compensation in the form of simple interest @ 18% p.a. is added to the said amount of Rs.4608900/-, the aggregate would not come to more than Rs.1 crore on the date this complaint was instituted, the complaint having been instituted way back on 5.7.2013. It is thus evident that this Commission lacks pecuniary jurisdiction to entertain this complaint.

The next question which arises for consideration is as to how this Commission should proceed in the matter considering that this complaint is pending for last more than 5 years, though this Commission lacks pecuniary jurisdiction to entertain the complaint. This issue came to be considered by this Commission in Consumer Complaint No. 198 of 2015 - Dushyant Kumar Gupta Vs. Today Homes & Infrastructure Pvt. Ltd. and connected matters decided on 31.1.2017 and following view was taken:-

"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 if the complaint is returned by this Commission, he will present it before the Haryana State Consumer Disputes Redressal Commission. The complaint is, therefore, disposed of with the following directions:-

(i) The complaint 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 Haryana State Consumer Disputes Redressal Commission within two weeks thereafter;

(iii) The parties shall appear before the Haryana State ConsumerDisputes Redressal Commission at 10.30 a.m. on 29.04.2019;

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

(v) The State Commission shall decide the complaint in terms of Para 4of this Order.

(vi) There shall be no order as to costs in the aforesaid matters.

Considering that the complaint has been pending with this Commission for last more than 5 years, the State Commission is requested to hear and decide the complaint expeditiously, if presented before it, in terms of this order.