Ravi Beniwa vs Advance India Project Ltd. (Aipl) & Anr

This complaint has been filed by the complainant Raman Beniwal against the opposite parties, M/s. Advance India Projects Ltd. & Anr.

Brief facts of the case as alleged in the complaint are that in August, 2012, the official representative of the opposite parties after showing the brochure of the forthcoming project of the opposite parties prevailed upon the complainant to purchase a unit in the Group Housing Project of the Opposite Party, namely, "The Peaceful Homes" Sector 70A, Gurgaon for an approximate consideration of Rs.95 lakhs. The complainant was allotted apartment /unit No.B111. On 06.09.2012, complainant paid Rs.10,00,000/- to the opposite party. On 24.09.2012, complainant made further payment of Rs.15,87,560/- to the opposite parties. Opposite parties assured that unit will be handed over to complainant by April, 2015.

However, the construction of the unit was not complete by that time. Moreover the construction was completely different from brochure hence the complainant sent various letters and visited the office of opposite parties. The complainant had paid Rs.36,69,360/- by then. As there was no progress in construction, the complainant then filed consumer complaint before the State Commission. However, the complaint was withdrawn by the complainant and State Commission allowed withdrawal vide its order dated 19.12.2016. Accordingly, the complaint has been filed before this Commission with the following prayers:-

"i) Refund the amount of Rs.36,69,360/- to the complainant being the principle amount deposited with the respondents towards cost of the flat along with a sum of Rs.46,23,394/- being interest calculated @18% p.a. simple interest from the date of deposit till 01.01.2018.

(ii) Allow the pendent lite interest @ 18% p.a. from the date of filing the present complaint till the present case is finally decided and future interest @18% p.a. on the decretal amount from the date of decree till the date of actual payment;

(iii) Make the payment of Rs.15,00,000/- as compensation for mental as well as physical harassment and agony caused to the complainant;

(iv) Make the payment of Rs.1,00,000/- as litigation expenses."

Heard the learned counsel for the complainant and perused the record. Learned counsel for the complainant argued that the complaint was earlier filed before the State Commission as Complaint No.140/16, which was dismissed as withdrawn vide its order dated 19.12.2016 in the light of decision of the larger Bench of this Commission in the matter of Parikshit Parashar Vs. M/s. Universal Buildwell Private Limited & Ors. decided on October 07th, 2016, according to which the total consideration of the flat is to be considered for deciding the pecuniary jurisdiction of the consumer forum. Accordingly, in the light of the decision of the larger Bench of this Commission in Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd., decided on 07.10.2016 (NC), the complaint has been filed with this Commission for the same relief.

I have given a thoughtful consideration to the arguments advanced by the learned counsel for the complainant and have examined the record. 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.36,69,360/- 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 complainant 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.

Based on the above consideration, it is clear that in the present case even if total refund of Rs.36,69,360/- is taken into consideration along with interest @18% p.a. and compensation demanded, the total figure does not cross the limit of Rupees One Crore. Hence, this Commission does not have the pecuniary jurisdiction to entertain this complaint.

The complainant had rightly filed the complaint before the State Commission. However, the State Commission without going into the details has returned the complaint to be filed before the appropriate forum. From the aforesaid analysis of the subject, the case clearly falls within the pecuniary jurisdiction of the State Commission. The interest to be earned in future cannot be allowed as part of compensation to decide the pecuniary jurisdiction.

Based on the above discussion, I find that the present complaint is not maintainable before this Commission for want of pecuniary jurisdiction. Hence, consumer complaint No.250 of 2018 stands dismissed as not being maintainable before this Commission due to lack of pecuniary jurisdiction. However, in the interest of justice, order dated 19.12.2016 of the State Commission shall not come in the way. The complainant shall be at liberty either to file fresh complaint before the State Commission or to move an application for revival of the complaint No.140 of 2016 before the State Commission. If such an application is moved within 8 weeks from the date of this order, the State Commission shall revive and restore the complaint No.140 of 2016 at its original number and shall proceed to decide the complaint without questioning the jurisdiction in the instant case.

The time taken in consideration of earlier complaint by the State Commission and this complaint by this Commission shall not be counted towards limitation if a fresh complaint is filed before the State Commission.