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Judgment
This complaint has been filed by the complainants Saurav Sekhri and Shelly Sekhri against the opposite party, M/s. Puri Constructions Private Limited.
Brief facts as alleged in the complaint are that in the year 2013, complainants booked a unit, having a saleable area of 1700 sq ft. in the project Emerald Bay, Sector 104, Gurgaon, Haryana and paid a sum of Rs.7.5 lakhs as booking amount. On 27.02.2013, respondent provisionally allotted a unit to the complainants bearing No.B-2 503. In March 2013- September 2013, the complainants continued to pay as per the demands raised by the respondent and overall paid a sum of Rs.31,91,005/- towards the cost of the unit.
On 19.09.2013, after several follow ups, the respondent sent two copies of the apartment buyers agreement to the complainants. On 22.09.2013, Email written by the complainants to the respondent requiring them to review the agreement and bring it in line with the terms and conditions of allotment letter. Aggrieved, the complainants then filed a complaint before the State Commission for refund of the amount paid. However, later on complainants moved an application for withdrawal of the complaint on the ground of pecuniary jurisdiction. State Commission allowed the application of the complainants vide its order dated 17.01.2018 on account of pecuniary jurisdiction with liberty to file the complaint before an appropriate forum. Accordingly, the complaint has been filed before this Commission with the following prayers:-
"(a) Direct the Respondent to refund a sum of Rs.31,91,005 (Rupees Thirty One Lacs Ninety One Thousand and Five only) to the complainant;
(b) Direct the Respondent to pay an interest of 18%on the amount paid on the aforesaid amounts from the date of deposit till realisation;
(c) Direct the Respondent to pay a sum of Rs.5,00,000 as costs towards mental agony and harassment;
(d) Direct the Respondent to pay legal costs including but not restricted to costs of the pleader;
(e) Pass any order which this Hon'ble Forum may deem fit in the interest of justice."
Heard the learned counsel for the complainants and perused the record. Learned counsel for the complainants argued that the complaint was earlier filed before the State Commission as Complaint No.C-194/2015, which has been dismissed for want of pecuniary jurisdiction vide its order dated 17.01.2018 in the light of decision of the larger Bench of this Commission in the matter of Consumer case no. 97 of 2016 Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd., decided on 07.10.2016 (NC), according to which the total consideration of the flat along with compensation demanded, is to be considered for deciding the pecuniary jurisdiction of the consumer forum.
I have given a thoughtful consideration to the arguments advanced by the learned counsel for the complainants 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.31,91,005/- 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 amount of Rs.31,91,005/- 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 complainants 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.911 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 17.01.2018 of the State Commission shall not come in the way. The complainants shall be at liberty either to file fresh complaint before the State Commission or to move an application for revival of the complaint No.C-194/2015 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.C-194/2015 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.