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Judgment
Counsel for the complainant states that complaint against Opposite party nos. 2 to 7 be deleted from the array of parties since no relief is claimed against them. In view of this submission, names of opposite party nos. 2 to 7 are deleted from the array of parties.
The present complaint has been filed by the complainants through Special Power of Attorney, against the opposite party on the ground that they have failed to fulfill the terms and conditions of the agreement. It is submitted that complainants had booked a unit in the project of the opposite party known as 'The Leaf' Residential Complex, SS City, Sector-85, Gurgaon. An allotment letter dated 10.09.2012 was issued to the complainants and unit no. 12-A on 12th Floor which is 3 BHK + PR + SR having super area of 2280 sq. ft. ( approx.) in building-7 was allotted to them. A flat buyer's agreement was executed on 23.09.2013 and as per the said agreement, the payments towards the consideration was construction linked payment. It is submitted that a sum of Rs.47,84,678/- had been paid by the complainants through cheques and demand drafts on various dates. The construction was to be completed within 36 months with grace period of three months. It is submitted that whenever the site of the opposite party was visited, it was found that there was no construction going on.
The last visit of the complainants on the site was in May 2015. It was found that construction was not going on as per the promise made by the opposite party and there were no roads, no drainage and sewerage system, no electricity and water pipes connecting with trunks services. It is submitted that finding that opposite party would not be able to complete the construction as per their promise, legal notices dated 15.05.2015 and 22.05.2015 were sent to the opposite party. A reply dated 25.06.2015 was received from the opposite party. On these contentions, it is submitted that opposite party be directed to refund their deposited amount with interest on it @ 18% per annum, till its realization. A compensation of Rs.10.00 lakhs towards mental pain and agony be awarded alongwith litigation expenses of Rs.55,000/- It is submitted that this Commission has the jurisdiction since value of the flat was more than rupees one crore.
The claim is contested by the opposite party. Besides other contentions, a preliminary issue was raised that this Commission has no jurisdiction since the complainant has sought the refund of its amount which is less than rupees one crore. On merits, it is submitted that there was no deficiency in service on their part since it is the complainants who have failed to pay the instalments in accordance with the payment plan, which has resulted delay in construction of the unit.
Parties have led their evidences by way of affidavit and filed their documents. Counsel for the respective parties have argued the matter. It is submitted on behalf of the complainants that opposite party has failed to fulfill its obligation under the agreement and failed to raise the construction as per promise despite the fact that substantial amount of Rs.47,84,678/- has been paid by the complainants. The completion of the project was nowhere in sight when the site was visited. It is further argued that site was again visited after filing of this complaint in the month of April, 2017 and yet the construction was not completed.
On behalf of the opposite party, it is argued that complainant has rushed to the Commission even before the expiry of 36 months from the date of agreement. It is further argued that as per clause 8.3 (b), complainants had a right to terminate the contract after expiry of 51 months from the date of signing of agreement by giving prior notice of 90 days. It is argued that this Commission has no pecuniary jurisdiction to entertain this complaint. It is argued that Section 21 of the Consumer Protection Act, 1986 ( in short, the Act) which determines the jurisdiction of this Commission, the expression used is 'claimed'. It is submitted that this Commission has jurisdiction if the value of goods claimed exceeds rupees one crore. It is submitted that since claim of the complainants is only Rs.47,84,678/-, this Commission has no pecuniary jurisdiction. Counsel for the opposite party has placed reliance on the judgment of this Commission in the matter of Advance Ispat ( India) Ltrd. Vs. Parsvnath Developers Limited, Consumer Case No.2206 of 2016 decided on 13.07.2017. On this point, counsel for the complainants has argued that it is the value of the goods which determines the pecuniary jurisdiction of this Commission as has been held by larger Bench of this Commission in the case of Ambrish Kumar Shukla and Ors. Vs.Ferrous Infrastructure Pvt. Ltd., Consumer Case No. 97 of 2016 decided on 07.10.2016.
I have heard the arguments and perused the relevant record.
As regards the question of jurisdiction is concerned, Section 21 of the Act determines the jurisdiction of this Commission. Section 21 of the Act has been elaborately discussed by larger Bench of this Commission in the matter of Ambrish Kumar Shukla's case ( supra), where it has been held as under:
"In view of the answer to the issues No. (ii) and (iii) of the reference order dated 24.5.2016, it is the aggregate value of the goods purchased or the services hired or availed of by all the consumers on whose behalf or for whose benefit the complaint is filed which, added to the total amount of compensation, if any, claimed for all such consumers determines the pecuniary jurisdiction of the Consumer Forum. The value of the goods purchased or the services hired or availed of by an individual consumer and the compensation claimed in respect of an individual consumer would have no bearing on such determination."
The larger Bench of this Commission has held that it is the aggregate value of goods purchased or the services hired which determines the jurisdiction of consumer Fora. Undisputedly, in this case, value of the goods i.e. value of the flat was more than rupees one crore. Hence, this Commission has pecuniary jurisdiction.
Counsel for the opposite party has placed reliance in the case of Advance Ispat (supra). It is to be noted that findings in that case are given on the facts of that case. The facts which are clearly recorded in para 2 of the said judgment show that total cost of the flat in that case was Rs.66,78,000/-. Any observation made relates to that case and is not binding on the facts of this case. Another case on which counsel for the opposite party has placed reliance is Nikhil Sevantilal Gandhi and Ors. Vs. Incline Reality Pvt. Ltd., Consumer Case No. 2291 of 2017 decided on 11.09.2017 and argued that it is the value of refund which will determine the jurisdiction of this Commission. The said argument is not valid for the reason that no law has been propounded in the said case and the findings are based on the facts of that case. In that case there was no builder buyer agreement between the parties and there was no allegation of deficiency in service on the part of the builder.
In the present case there is a clear allegation that there was deficiency in service on the part of the opposite party. I hold that this Commission has pecuniary jurisdiction to entertain the present complaint.
The facts that emerges from the complaint are that complainants booked unit no. 12-A on 12th Floor which is 3 BHK + PR + SR having super area of 2280 sq. ft. ( approx.) in building-7 for a sum of Rs.47,84, 678/- and a builder buyer agreement was entered into. As per clause 8.1 (a), the possession of the unit was to be given within 36 months. It is also an admitted fact that payment was construction linked and the complainants had been making the payment without even any demand from the opposite party showing the status of the construction and the amount payable. This only shows the eagerness and bonafide of the complainants to make the payment so that they can get the flat at the earliest. The complainants have duly proved on record that on visit to the site, they found that construction had not yet been completed and that is why they issued legal notice dated 15.05.2015 wherein they had mentioned that construction is not going on as per the plan. Another notice dated 22.05.2015 stating same concern had been sent to the opposite party. Opposite party replied the notice wherein they denied any deficiency in service on their part. On being dis-satisfied with this reply, complainants filed the present complaint.
Al-though opposite party had promised to hand over possession of the flat within 36 months with grace period of three months, there is nothing in the reply showing any fact which could suggest that opposite party would be able to hand over possession of the flat within the stipulated period. The fact remains that till today, the opposite party has not offered the possession of the flat to the complainants. Now, more than six years have elapsed since the builder buyer agreement. It is also not the case of the opposite party that construction is complete. Neither occupancy certificate or completion certificate has been placed or filed nor it is contended that it has been applied with the competent Authority. These facts strengthens the concern of the complainants that they had correctly judged the conduct of the opposite party and the situation that opposite party would not be able to hand over the possession even on expiry of the stipulated period. There is certainly deficiency in service on the part of the opposite party as they have failed to offer the possession of the flat to the complainants even during the pendency of the present complaint and have not completed the project.
In view of the above discussion, I allow the present consumer complaint with following directions:
a. Opposite party no.1 is directed to refund the deposited amount of Rs.47,84,678/- received from the complainants alongwith compensation in the form of simple interest @ 12% per annum per annum with effect from the date of respective payments till the date on which the entire principal amount alongwith interest is actually paid.
b. A sum of Rs.5.00 lakhs is awarded towards mental agony and harassment as compensation.
c. The opposite party no.1 shall also pay a sum of Rs. 10,000/- as the cost of litigation to the complainant.
d. The payment in terms of this order shall be paid within three months from today.
With these directions, the complaint stands disposed off.