Complaint Case No. 706 of 2016. Case: Jagdeep Singh Vs Omaxe Chandigarh Extension Developers Private Limited and Ors.. Union Territory State Consumer Disputes Redressal Commission
| Case Number | Complaint Case No. 706 of 2016 |
| Counsel | For Appellant: Sandeep Malik, Advocate and For Respondents: Ashim Aggarwal, Advocate |
| Judges | Jasbir Singh, J. (President), Dev Raj and Padma Pandey, Members |
| Issue | Arbitration And Conciliation Act, 1996 - Section 8; Code of Civil Procedure, 1908 (CPC) - Sections 15, 16, 17, 18, 19, 20; Consumer Protection Act, 1986 - Sections 11, 13(4), 17, 2(1)(d), 2(1)(d)(ii), 3 |
| Judgement Date | March 24, 2017 |
| Court | Union Territory State Consumer Disputes Redressal Commission |
Order:
Padma Pandey, Member
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The facts, in brief, are that the complainant with a view to construct a house for his personal residence, purchased a residential plot measuring 321 sq. yard from Opposite Party No. 1 by depositing the booking amount of Rs. 13,50,000/- vide cheque dated 17.12.2010 vide receipt (Annexure C-1). The Opposite Parties issued provisional allotment of the plot to the complainant vide letter dated 12.12.2011 (Annexure C-2). The complainant made the payment as and when demanded by the Opposite Parties (Annexures C-3 to C-7). Thereafter, Opposite Party No. 1 allotted plot No. 992 measuring 321.35 sq. yard to the complainant vide allotment letter dated 28.11.2014 (Annexure C-8). The total cost of the plot, in question, was Rs. 58,64,300/-, out of which, the complainant paid the total amount of Rs. 55,75,085/- in advance i.e. before issuance of allotment letter. As per Clause 24(a) of the allotment letter, possession of the plot was required to be delivered within 18 months from the date of allotment but the Opposite Parties failed to hand over possession of the plot to the complainant, despite repeated requests and visits. It was further stated that there was no development over the project and due to this reason, the complainant could not be treated as a defaulter for any non-payment of the amount or delayed payment of the same. Ultimately, the complainant sent a legal notice dated 29.06.2016 (Annexure C-9) to the Opposite Parties demanding refund of the amount but to no avail. It was further stated that the aforesaid acts, on the part of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (in short the 'Act' only), was filed.
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The Opposite Parties, in their written version, took preliminary objections citing Clause 44(c) of the Allotment Letter/Agreement that this Commission has no jurisdiction, to entertain and decide disputes between the parties, because as per above said provision, the matter needs to be referred to an arbitrator for adjudication. It was averred in the joint written reply that the complainant did not fall within the definition of "consumer" as defined under Section 2(1)(d) of the Act, as the complainant is residing in Jind, Haryana and it could safely be inferred that he purchased the unit for investment purposes. By placing reliance on the ratio of judgment of Larger Bench, passed by the National Consumer Disputes Redressal Commission, New Delhi (National Commission), titled as Ambrish Kumar Shukla and 21 Ors. Vs. Ferrous Infrastructure Pvt. Ltd., Consumer Case No. 97 of 2016, decided on 07.10.2016, pecuniary jurisdiction of this Commission was challenged stating that if interest claimed is added in addition to reliefs claimed, it fell beyond Rs. 1 crore. Territorial jurisdiction of this Commission was also challenged, by stating that no cause of action, whatsoever, has accrued within the territorial jurisdiction of this Commission. As per Clause 44(c) of the Allotment Letter/Agreement, the Courts at Punjab and Delhi, shall have territorial Jurisdiction, to entertain and adjudicate the complaint, and, as such, the Jurisdiction of this Commission was barred. It was further averred that the complainant is seeking refund, whereas, as per Clause 24(a) of the Agreement, the development is to be completed by March, 2017 and hence the present complaint is pre-mature, as it has been filed in October, 2016 i.e. even prior to expiry of 24 months from the date of execution of the Agreement dated 28.11.2014. It was stated that as per Clause 24(a) of the Allotment Letter/Agreement, it was agreed that the Opposite Parties shall only make best efforts to complete development works within a maximum period of 24 months from the date of signing thereof (allotment letter). It was further stated that the said period was to be computed excluding Sundays, Bank Holidays and only thereafter, possession of the plot was to be delivered, as such, no definite period was assigned for the same. It was further stated that in case the complainant want to cancel the allotment then at this stage it would amount to rescission of the contract and the earnest money is liable to be forfeited in terms of Clause 14 of the Agreement. It was admitted regarding booking of the plot; issuance of allotment letter and receipt of the amount of Rs. 55,75,085/-. It was further stated that it is well settled principle of law that in cases of sale of immovable property and construction, time is never regarded as the essence of the contract. It was further stated that as per Clause 24(a), as such, there was no definitive Agreement stating that possession would definitely be delivered within 24 months. It was further stated that the development work on the site is in full swing and the possession of the plot would be handed over soon. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice.
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The Parties led evidence, in support of their case.
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We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
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Before making any reference to the merits of the case, we will like to decide the objection raised by the Opposite Parties that for want of pecuniary jurisdiction, it is not open to this Commission to entertain and adjudicate this complaint. As per admitted facts, the complainant has sought refund of amount paid i.e. Rs. 55,75,085/- alongwith interest @ 24% p.a. from the first deposit till its actual realization; compensation to the tune of Rs. 5 lacs, for mental agony on account of deficiency in service and cost of litigation to the tune of Rs. 55,000/-. It is argued by Counsel for the Opposite Parties that if the entire claimed amount is added, alongwith interest claimed, it will cross Rs. 1 crore and in that event, it will not be open to this Commission to entertain and adjudicate this complaint, for want of pecuniary jurisdiction. To say so, reliance has been placed upon ratio of judgment of a Larger Bench of the National Commission, in the case of Ambrish Kumar Shukla (supra). This issue, whether interest is to be counted when looking into pecuniary jurisdiction of this Commission, came up for consideration in the case of Surjit Singh Vs. M/s. Emaar MGF Land Pvt. Ltd. and another, Consumer Case No. 484 of 2016 decided on 15.12.2016, wherein, after noting similar objections it was observed as under:-
"In the first blush, if we look into the ratio of the judgment, referred to above, it appears that this Commission will not have pecuniary jurisdiction to entertain this complaint. However, on deep analysis, we are going to differ with the argument raised by Counsel for the opposite parties. Judgment in the case of Ambrish Kumar Shukla (supra) was rendered by Three Judges Bench of the National Commission, without noting its earlier view of the subject. This issue, whether, when determining pecuniary jurisdiction of the State Commission/Consumer Foras, interest is to be added with other relief claimed or not, came up for consideration, before the Three Judges Bench of the National Commission in Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. And Ors., II 2003 CPJ 81 (NC). In the said case, noting similar arguments, it was observed as under:-
"3. Complaint (at pp 17-36) was filed with the following prayer:
"It is, therefore, respectfully prayed that the complaint be allowed and the opposite parties be directed to pay the claim to the tune of Rs. 18,33,000/- plus interest @ 18% from the date of claim till its realization. Also the suitable damages caused to the complainant be ordered to be paid to the complainant."
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Bare reading of the prayer made would show that the interest claimed by appellant pertains to the period upto the date of filing complaint, pendente lite and future. Rate and the period for which interest has to be allowed, is within the discretion of State Commission and the stage for exercise of such a discretion would be the time when the complaint is finally disposed of. Thus, the State Commission had acted erroneously in adding to the amount of Rs. 18,33,000/- the interest at the rate of 18% per annum thereon till date of filing of complaint for the purpose of determination of pecuniary jurisdiction before reaching the said stage. Order under appeal, therefore, deserves to be set aside. However, in view of change in pecuniary jurisdiction w.e.f. 15.3.2003, the complaint is now to be dealt with by the District Forum instead of State Commission."
It was specifically stated that interest claimed by appellant/complainant pertained to the period upto the date of filing complaint, pendente lite and future, need not be added in the relief claimed, to determine pecuniary jurisdiction of the State Commission/Consumer Foras. It was rightly said that the rate and period for which the interest has to be allowed, is within the discretion of the particular Consumer Fora, and the stage for...
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