Sandeep Ray vs Earth Buildprop Pvt. Ltd

This complaint has been filed by Sandeep Ray against the opposite party Earth Buildprop Pvt. Ltd.

Brief facts of the case are that the Opposite party launched its residential scheme as "Earth Elacasa". Total cost of the flat was Rs.88,29,010/-. Amount paid by complainant was Rs.31,45,984.23. BBA was executed on 21.5.2015. As per clause 11 of the agreement possession was to be delivered within 36 months from the date of agreement, with a grace period of 6 months i.e. by end of 2018. License granted to opposite party to complete the project expired in 2016 and is not renewed since then. Hence a complaint has been filed requesting refund of the paid amount along with interest.

The learned counsel for complainant was heard for admissibility and the record was perused.

It was stated by the learned counsel that the complainant had booked apartment with the opposite party for a total consideration of Rs.88,29,010 and various installments were paid to a total amount of Rs.31,45,984.23. As the construction did not proceed, Opposite party failed to deliver possession in time. Complainant does not want to pursue with the possession as the money would be blocked for many years. The licence of the opposite party has already expired, so there can be no progress in the construction. In these circumstances the complainant is requesting for refund. It was further stated that in the light of the judgement of the larger bench of this commission in the matter of Consumer case no 97of 2016 Ambrish Kumar Shukla and others vs. Ferrous Infrastructure Pvt Ltd. decided on 7.10.2016 (NC), the amount of total consideration as agreed between the parties along with the compensation claimed is to be taken into consideration for deciding the pecuniary jurisdiction of the consumer forum which in the present case is more than rupees one crore and therefore, this commission will have jurisdiction to decide the present complaint.

I have considered the arguments advanced by the learned counsel for the complainant and have examined the record. The following prayer has been made in the complaint:-

"(i) The opposite party shall be directed to refund the principal amount of Rs.31,45,984.23/- to the complainant along with compensation in the form of interest @24% per annum on the aforesaid amount from the date of each payment till the date on which the entire amount along with interest @24% per annum till the date of actual payment.

(ii) The opposite party shall pay a sum of Rs.1,00,000/- as cost of litigation to the complainants.

(iii) The opposite party be directed to make payment in a time manner."

It is clear that the main request is for refund of the deposited amount of Rs.31,45,984.23 with 24% interest p.a. Apart from this the complainant has also requested for a cost of litigation of Rs.1,00,000/-.

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.31,45,984.23/- 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.

Though the complainant has demanded interest @ 24% p.a. on the deposited amount, but this Commission in Gaurav Aneja & anr. Vs. Supertech Limited, II (2018) CPJ 365 (NC) has observed that for considering the pecuniary jurisdiction this Commission would consider 18% p.a. only for calculation purposes and this will include all other types of compensation as well. The order of this Commission reads as under:-

"3. In such cases, neither this Commission nor the Hon'ble Supreme Court has awarded compensation in the form of interest at a rate higher than 18% per annum. Therefore, a claim for a higher interest would be an exaggerated and inflated claim without any legal basis and cannot be taken into consideration for the purpose of determining the pecuniary jurisdiction in terms of Section 21 of the Consumer Protection Act. If compensation in the form of interest @ 18% per annum is awarded, it will cover the losses of all kind, including the financial loss and distress and mental agony caused to the flat buyer, since the financial loss would not be more than 10-11% per annum, considering the rates of interest prevailing during the relevant period."

Based on the above consideration, it is clear that in the present case even if total refund of Rs.3145,984.23/- 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.

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. The time taken in deciding the complaint by this Commission shall not be counted for the purposes of limitation.