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Judgment
This consumer complaint has been filed by Richa Sachdev & anr. against the opposite party for refund of the amount paid by the complainants to the opposite party in respect of the purchased apartment. It has been alleged in the complaint that the total consideration of the unit is Rs.1,03,77,650/-. It has been alleged that the complainant No.1 has booked the apartment in the year 2012. As the complainant No.1 was in USA and was not able to pursue the case with the builder, the complainant No.1 executed a letter requesting transfer in favour of Complainant No.2, who is mother of complainant No.1. Complainant No.1 sent her original agreement to the opposite party to issue fresh agreement in favour of complainant No.2. It has been alleged that the opposite party has admitted to change the agreement to be executed in favour of complainant No.2. Due to this fact, both the complainants have been arrayed as complainants in the present case. The following main reliefs have been claimed in the complaint:-
"(i) Direct the OP to pay a sum of Rs.62,74,016/-, being the amount already paid by the complainant as on 24 March, 2015 to the OP, along with interest @ 18% per annum computed from 24 March, 2015 to 18 April 2017 and further pendent lite interest @ 18%.
(ii) Direct to the OP to pay a sum of Rs.25,00,000/- (Rupees twenty five lakhs only) towards damages for the physical and mental torture, agony, discomfort and undue hardships caused to the complainant No.1 and her family as a result of the above acts of omissions on the part of the OPs; and
(iii) Direct the OP to pay a sum of Rs.50,000/- (Rupees Fifty Thousand only) to the complainants towards the cost of litigation."
Heard the learned counsel for the complainants at the admission stage.
Learned counsel reiterated the facts as stated above. In this situation, the complainants cannot wait any further as their money has been blocked with opposite party and therefore, the refund has been sought. As the total consideration of the apartment is Rs.1,03,77,650/- and 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 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. Though the prayer has been made for refund of Rs.62,74,016/- , which has been stated as the amount paid by the complainants to the opposite party, the fact is that the amount paid by the complainant is Rs.38,25,293/- only and an amount of Rs.24,48,723/- has been claimed as interest on the said amount as mentioned in the following paragraphs of the complaint:-
"20. It is further submitted that despite the complainant No.1 having diligently paid an amount of Rs.38,25,293/- as on 24 March, 2015, which is the total amount as demanded by the OP till date, the OP has not made any progress and is in no position to offer possession by September 2017. Further, after various enquiries, the OPs have still not given a final date as to when the possession of the Apartment shall be handed over to the complainant.
It is submitted that the total consideration of the Apartment including the amenities is Rs.1,03,77,650/-. Against this amount, the complainant No.1 has already paid an amount of Rs.38,25,293/-. The complainants are also entitled to receive from the OP an amount of Rs.24,48,723/- (as on 18 April, 2017) as the interest till date of filing of the complaint."
It is clear that the main request is for refund of the deposited amount of Rs.38,25,293/- with 18% interest p.a. Apart from this the complainants have also requested for a compensation of Rs.25,00,000/- and cost of litigation Rs.50,000/-. 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.38,25,293/- 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 the 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.
From the above discussion, it is clear that the basic amount paid by the complainants is only Rs.38,25,293/- that is required to be refunded along with interest. The complainants have calculated the amount of interest as Rs.24,48,723/- and the total refund claimed by the complainants is for Rs.62,74,016/-. 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.
On the basis of above discussion, the present complaint is dismissed for want of pecuniary jurisdiction. However, liberty is granted to the complainant to file the consumer complaint before the concerned State Commission, which shall decide the complaint on merits without raising the issue of pecuniary jurisdiction. The time for pendency of the complaint before this Commission shall not be counted for the purpose of limitation.