AI Structured Summary
Not yet generated for this judgment
Judgment
V.K.JAIN, J.
IA/5691/2016 (For arbitration)
This application may be treated as dismissed in view of the order dated 18.07.2017.
IA/519/2016 (Dismissal of complaint)
This application will be considered at the time of final hearing of the complaint.
In the meanwhile, reply if any, can be filed within four weeks.
IA/6745/2016 (Interim relief)
The allotment made to the complainant shall not be cancelled during the pendency of this complaint without prior permission of this Commission. The application stands disposed of.
IA/6577/2017 (C/delay in filing reply)
The delay is condoned. The application stands disposed of.
CC/876/2015
The complainants have filed rejoinder as well as affidavits on 27.11.2017. The learned counsel for the complainants states that this matter is covered by the previous decision of this Commission dated 31.01.2017 in CC No.198/2015 Dushyant Kumar Gupta Vs. Today Homes & Infrastructure Pvt. Ltd. and connected matters. Considering that the matter is covered by the previous decision of this Commission and the OP has not filed its affidavits despite getting more than nine months for this purpose, I see no justification for grant of another opportunity for this purpose. The right of the OP to file its affidavits is therefore, closed.
I have heard the learned counsel for the parties.
The complainant booked a residential flat with the OP in a project namely 'Canary Greens' which the OP was to develop in Sector-73 of Gurgaon. Unit No.2 on the 10th floor in Tower T-6 was allotted to the complainants for a consideration of Rs.58,06,420/- which was later increased to Rs.70,00,220/-. The possession of the flat, as per the Buyers Agreement, executed between the parties on 18.06.2011, was to be delivered within three years of its execution though the OP was entitled to a grace period of six months. The possession therefore, ought to have been delivered latest by 18.12.2014 inclusive of the grace period. Since the possession of the flat was not even offered to the complainants despite they having already paid Rs.61,85,151/- to the OP, they are before this Commission seeking refund of the amount paid by them alongwith compensation etc.
The complaint has been resisted by the OP but according to the learned counsel for the complainants, the grounds on which the complaint has been resisted have already been rejected by this Commission in Dushyant Kumar Gupta (supra). The decision of this Commission in Dushyant Kumar Gupta (supra) to the extent it is relevant, reads as under:
The main question which arises for consideration in these complaints is as to whether this Commission possess the requisite pecuniary jurisdiction to entertain these complaints. As provided in section 21 of the Consumer Protection Act this Commission has jurisdiction to entertain the complaints where the value of the goods or services and compensation if any claimed exceeds Rs.1 crore. Though most of the complainants have claimed refund @ Rs.10,000/- per sq.ft. of the area of the flat, no credible evidence has been led by them to prove that the market value of a flat similar to the flat allotted to them and in the same or a comparable locality was Rs.10,000/- or more on the date these complaints were instituted. No price list of any developer in respect of residential flats in the same or a comparable locality with identical or comparable specifications has been produced by them, in the absence of a credible evidence, it would be difficult to accept the bald statements of the complainants as regards the market value of a similar flat in the same or a comparable locality, on the dates these complaints were instituted. Therefore, invocation of the pecuniary jurisdiction of this Commission on the basis of the aforesaid alleged market value of the similar flats is highly misplaced and cannot be entertained.
Though ordinarily the pecuniary jurisdiction is to be determined on the basis of the averments made in the complaint, this Commission will not be justified in entertaining the complaints based upon the allegations which are ex-facie untenable and where the claim is found to be highly inflated, fanciful and exaggerated, made only with a with view to bring the matter within the pecuniary jurisdiction of a particular consumer forum. The scheme of the Consumer Protection Act, which requires a consumer complaint with pecuniary value of upto Rs.20 lakhs to be instituted before a District Forum and the complaints with a pecuniary value of more than Rs.20 lakhs and upto Rs.1 crore before the State Commission, cannot be allowed to be bypassed, by entertaining highly exaggerated and wholly unfounded claims.
This Commission has in the past granted compensation in the form of interest paid Rs.18% per annum in the cases where refund has been allowed and compensation in the form of interest @ 12% per annum in the cases where possession of the house/plot has been directed. Therefore, a claim for refund by adding the agreed sale consideration to compensation in the form of simple interest @ 18% per annum from the date of each payment till the date of filing of the complaint cannot be said to be highly exaggerated or fanciful and made only with a view to invoke the jurisdiction of this Commission, even if this Commission eventually grants a lesser compensation to the complainant. Similarly, where the complainant seeking only the possession of the house but there is no prayer for refund of the payment made by him to the builder, the value arrived it by adding the agreed sale consideration to the compensation in the form of interest @ 12% p.a. from the committed date of possession till the date of filing of the complaint would be maintainable before this Commission if the said claim comes to more than Rs.1 crore.
In a complaint where the complainant makes alternative prayers, one for possession of the house allotted / plot to him and the other for refund of the amount paid by him to the developer along with compensation, this Commission would have pecuniary jurisdiction to entertain the complaint where either the relief of possession or the relief of refund, alongwith the compensation as calculated in terms of para-5 hereinabove falls within the pecuniary jurisdiction of this Commission. Since in such a case, the State Commission will not have the requisite pecuniary jurisdiction to grant one of the alternative reliefs claimed in the complaint, the complainant cannot be asked to approach the said Commission.
No material has been produced by the opposite party to prove that the completion of construction and offer of possession has been delayed on account of reasons beyond its control. Thus, no justification for the said delay has been made out. The learned counsel for the complainants in 37 complaints in which the pecuniary jurisdiction vests with this Commission states on instruction from the said complainants that in order to avoid further litigation in the matter, such complainants who want to take refund instead of waiting for the possession of the flats are restricting their claim to refund of the entire principal amount paid by them, including service tax and VAT along with compensation in the form of simple interest @ 10% per annum from the date of each payment till the date on which the entire amount, along with interest, in terms of this order, is refunded to them. He further states on instructions that such flat buyers out of the above referred 37 complainant, who want to wait for possession of the flats, with a view to avoid further litigation, are restricting their claim for compensation to simple interest @ 8% per annum on the entire amount including VAT and Service Tax paid by them from the committed date of possession till the date on which the possession of the flat is offered to them after obtaining all the requisite clearances, including the Occupancy Certificate.
In the present case, if compensation in the form of simple interest @ 18% per annum is added to the agreed sale consideration of Rs.70,00,220/-, the aggregate comes to more than Rs.1 Crore. Hence, this Commission does possess the requisite pecuniary jurisdiction to entertain the complaint.
The learned counsel for the complainants states on instructions from the complainants that they are pressing for refund of the amount paid by them alongwith compensation in the form of simple interest @ 10% per annum from the date of each payment till the date of refund as was awarded by this Commission in Dushyant Kumar Gupta (supra).
The complaint is therefore, disposed of with the following directions:
(i) The OP shall refund the entire principal amount of Rs.61,85,151/- received from the complainants to them alongwith compensation in the form of simple interest @ 10% per annum from the date of each payment till the date of refund in terms of this order.
(ii) The refund shall be made by way of Demand Draft or Pay Order.
(iii) The OP shall also pay a sum of Rs.25,000/- as the cost of litigation.
(iv) The payment in terms of this order shall be made within three months from today.