Complaint Case No. 928 of 2016. Case: Sunil Gupta Vs Omaxe Chandigarh Extension Developers Private Limited. Chhattisgarh State Consumer Disputes Redressal Commission
| Case Number | Complaint Case No. 928 of 2016 |
| Counsel | For Appellant: Inderdeep Singh, Advocate and For Respondents: Munish Gupta, 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)(ii), 2(1)(d), 3 |
| Judgement Date | March 31, 2017 |
| Court | Chhattisgarh State Consumer Disputes Redressal Commission |
Order:
Jasbir Singh, J. (President)
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The facts, in brief are that, on 30.05.2012, the complainant purchased a plot measuring 321.35 square yard, in the project of the opposite party, namely Omaxe Extension-II, Mullanpur, Punjab, in resale from one Usha Kumari, original allottee. On completion of all the formalities, sale was endorsed in favour of the complainant by the opposite party. Allotment Letter/Agreement was executed between the parties on 28.06.2012. Total price of the plot was fixed at Rs. 57,48,614/-. The complainant opted for time linked payment plan. As per Clause 24 (a) of the said Allotment Letter/Agreement, the opposite party undertook to complete the development work within 18 months, with extended period of six months, from the date of signing of the said Allotment Letter/Agreement i.e. on or before 27.06.2014. It was stated that as per demands raised by the opposite party, from time to time, the complainant paid total amount of Rs. 55,39,110.92ps. The remaining small amount was to be paid, at the time of offer of possession of the plot, in question.
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It is grievance of the complainant that despite making more than 95% of the sale consideration, possession of the plot was not offered by the stipulated date or even by the time, this complaint was filed. Visit to the site reveals no signs of development there. Basic amenities such as roads etc. are not in existence. Various requests were made by the complainant to develop the project and deliver possession of the plot, but to no avail. Left with no alternative, he wrote letter dated 21.07.2016 Annexure C-3, in the matter, but to no avail.
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When despite requests made, possession of the plot was not delivered, the instant complaint was filed seeking refund of the amount paid alongwith interest thereupon; compensation for mental agony & physical harassment etc. and litigation expenses.
"1. Upon notice, reply was filed by the opposite party, raising many preliminary objections like as per Clause 44 (c) of the Allotment Letter/Agreement, 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 written reply that the complainant did not fall within the definition of "consumer" as defined under Section 2(1)(d) of the Act, as he has not purchased the plot for his residential purpose. Pecuniary jurisdiction of this Commission was challenged. 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 pleaded that the complainant being a subsequent allottee, as he has purchased the unit, in question, from open market, is not a consumer. It was averred that the complaint is bad for non-joinder of HDFC Limited, from which he obtained loan in respect of the plot, in question, as a necessary party.
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Factual matrix of the case was not controverted. Price of the plot mentioned in the complaint and payments made by the complainant is not disputed. It was admitted that the complainant purchased the plot, in question, in resale, in the manner, referred to above.
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It was not denied that as per Clause 24 (a) of the Allotment Letter/Agreement, it was agreed that the opposite party was liable to complete development works within a maximum period of 24 months from the date of signing thereof (allotment letter). i.e. on or before 27.06.2014. However, it was stated that the said period was to be computed, after excluding Saturdays, Sundays etc. It was stated that the project is being developed at a proper pace and many families have already taken possession of their respective units and are living happily. It was averred that delay in offer of possession took place, because the complainant failed to make timely payments. Delayed payment interest was also levied on him. Receipt of letter dated 21.07.2016 was denied by saying that the same seems to be procured one, by forging stamp of the Company on the same. It was stated that as such the matter be referred to the Civil Court.
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The parties led evidence in support of their case.
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Counsel for the parties raised arguments, in tune of the facts narrated above.
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We have heard Counsel for the parties, and have gone through the evidence and record of the case, very 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 party that for want of pecuniary jurisdiction, it is not open to this Commission to entertain and adjudicate this complaint. It is necessary to mention here that, as per admitted facts, the complainant has sought refund of amount paid to the tune of Rs. 55,39,110.92Ps. alongwith interest @18% p.a., from the respective dates of deposits; compensation to the tune of Rs. 10 lacs, for mental agony and physical harassment; and cost of litigation to the tune of Rs. 1 lac. If the aggregate value of the reliefs claimed (excluding interest) is added, the same fell below Rs. 1 crore, and as such, this Commission has pecuniary jurisdiction to entertain this complaint. At the time of arguments, it is argued by Counsel for the opposite party 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, titled as Ambrish Kumar Shukla and 21 ors. v. Ferrous Infrastructure Pvt. Ltd., Consumer Case No. 97 of 2016, decided on 07.10.2016."
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We are not going to agree with the submission raised. This Commission, in the case of Surjit Singh Thadwal v. M/s. Emaar MGF Land Pvt. Ltd. and another, Consumer Case No. 484 of 2016 decided on 15.12.2016, by relying upon the ratio of judgment titled as Shahbad Cooperative Sugar Mills Ltd. v. National Insurance Co. Ltd. and Ors., II 2003 CPJ 81 (NC), held that when determining pecuniary jurisdiction, in a complaint, component of interest claimed, is not to be added in the relief sought. In that case, it was recorded 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. v. 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 exercise of such discretion would be the time, when final order is passed. We are of the considered opinion that the view taken is perfectly justified. There may be cases, where the complainant may not be entitled to claim any interest upon the amount paid, like the one, where he is rescinding his contract and further at what rate interest is to be granted will be determined by the competent Consumer Fora, by looking into the facts of each case. All cases cannot be put into a straitjacket formula, to add interest claimed, to determine pecuniary jurisdiction of the Consumer Foras. The interest, which is a discretionary relief, cannot be added to the value of the goods or services, as the case may be, for the purpose of determining the pecuniary jurisdiction of the Consumer Foras. As per provisions of the Consumer Protection Act, 1986 (Act) value of the goods purchased or services plus (+)...
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