Suresh Chand Sharma vs M/S. Shipra Estate Ltd And Ors

The complainants in these matters booked residential apartments with the OPs in a project namely 'Shipra Krishna' which the OPs were to develop in Ghaziabad. The sale consideration for the aforesaid flats were agreed at Rs.42,90,000/-. The possession was to be delivered by 31.01.2019 but was delivered on 28.09.2017 in CC No.389 of 2018 and on 08.08.2017 in CC No.390 of 2018. The Sale Deeds in their favour have also been executed. The complainants are now before this Commission seeking compensation for the delay in delivery of the possession of the flats.

The question which arises for consideration in these complaints is as to whether this Commission possesses 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 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 upto at the rate of 12% per annum in the cases where possession has been directed. In the present complaints, the possession having already been taken, the compensation for the purpose of determining the pecuniary jurisdiction of this Commission in my opinion, cannot be computed at a rate exceeding 12% per annum from the date committed for delivery of possession till the date on which the possession was delivered and such a compensation is to be calculated on the entire amount which the complainant had paid till the date committed for delivery of possession. If compensation on the aforesaid rate on the entire sale consideration which the complainants had paid to the OPs before the last date committed for delivery of possession is added to the agreed sale consideration of Rs.42,90,000/-, the aggregate comes to less than Rs.1 Crore.

Though initially, the learned counsel for the complainants stated that some additional payment was also made to the OP at the time of delivery of possession, he is not pressing this point for the purpose of this order.

Thus, there is no escape from the conclusion that this Commission lacks the pecuniary jurisdiction to entertain the Consumer Complaint.

The next question which arises is as to what course of action should be adopted in these complaints considering that they have been pending with this Commission for last more than one year. One course can be to dismiss these complaints with liberty to such complainants to institute fresh complaints before the concerned State Commission. The aforesaid course of action, in my view, would not be fair and reasonable, considering that the complaints are pending for last more than one year and at one point of time, this Commission held the view that the market value of the flat as on the date of filing of the complaint could be treated as the value of the service in such matters. In my view, the appropriate course of action in such matters would be to follow the procedure prescribed in Order 7 Rule 10 A of the Code of Civil Procedure. Though, the aforesaid provision has not been expressly extended to this Commission by Section 13 (4) of the Consumer Protection Act, the principle underlying the said provision can in appropriate cases, be adopted by this Commission, in order to protect the interest of the consumers, while simultaneously ensuring that no prejudice is caused to the service provider by adopting such a course of action. The opposite party in these cases has filed its written version on the merits of the complaints. It has also led evidence on merits. No prejudice would be caused to the opposite party if the complaints are returned for being presented before the concerned State Commission, with a direction to the State Commission to decide them afresh, taking into consideration, the pleadings, affidavits and the evidence including documentary evidence filed by the parties before this Commission provided an opportunity is given to the parties to lead additional evidence and if filed within six weeks, such additional evidence is also considered along with the evidence, which was filed before this Commission. The aforesaid course of action besides ensuring a prompt and expeditious disposal of the complaints by a competent Consumer Forum will also ensure that no prejudice is caused to either party in any manner.

The learned counsel for the aforesaid complainants states that they will present the complaints before Delhi State Consumer Disputes Redressal Commission within two weeks of receiving the same from the Registry, and requests that a date may be fixed for the appearance of the parties before the said Commission.

The complaint is therefore, disposed of with the following directions:

(i) The complaint be returned to the complainant(s), along with an endorsement containing the date of presentation and return of the complaint, the name of the complainant(s) presenting the complaint and a brief statement of reasons for returning the complaint;

(ii) The complaint shall be returned within one week from today, along with the requisite endorsement and can be presented before Delhi State Consumer Disputes Redressal Commission within two weeks thereafter;

(iii) The parties shall appear before the Delhi State Consumer Disputes Redressal Commission at 10.30 a.m. on 11.09.2019;

The State Commission need not issue a fresh notice requiring the parties to appear before it on the aforesaid date.

The State Commission shall decide the complaints in terms of Para 6 of this Order.

There shall be no order as to costs in the aforesaid matters.