State Consumer Disputes Redressal Commission
Vijay Kanta vs Omax Chandigarh on 22 March, 2024
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Appeal No. : 168 of 2023 Date of Institution : 14.07.2023 Date of Decision : 22.03.2024 Vijay Kanta wife of Sh.Narinder Pal; Vineet Samnol son of Sh.Narinder Pal; Both residents of Ward No.3, Samnol House, Opposite State Bank of Patiala, Mahatpur, Una (Himachal Pradesh) Appellants/complainants V e r s u s M/s Omaxe Chandigarh Extension Developers Pvt. Ltd., having Corporate Office- SCO No.139-140, 1st Floor, Madhya Marg, Sector 8-C, Chandigarh through its Managing Director. M/s Omaxe Chandigarh Extension Developers Pvt. Ltd., having registered office at Omaxe City, 111th Milestone, Near Bad Ke Bala 31 Bus Stand, Jaipur-Ajmer Express Way, Jaipur, Rajasthan through its Managing Director. ....Respondents/opposite parties PRESENT:- Sh.Inderjeet Singh, Advocate proxy for Sh.Deepak Aggarwal, Advocate for the appellants/complainants. Sh. Ashim Aggarwal, Advocate for respondents/opposite parties ============================================================ Appeal No. : 260 of 2023 Date of Institution : 26.09.2023 Date of Decision : 22.03.2024 M/s Omaxe Chandigarh Extension Developers Pvt. Ltd., having Corporate Office- SCO No.139-140, 1st Floor, Madhya Marg, Sector 8-C, Chandigarh through its Managing Director. Now at India Trade Tower, 1st Floor, Baddi Kurali Road, New Chandigarh, Mullanpur, Dist. SAS Nagar, Mohali, Punjab-140901. M/s Omaxe Chandigarh Extension Developers Pvt. Ltd., having registered office at Omaxe City, 111th Milestone, Near Bad Ke Bala 31 Bus Stand, Jaipur-Ajmer Express Way, Jaipur, Rajasthan through its M.D. (Now at 10, Local Shopping Centre, Kalkaji, New Delhi-110019) Appellants/opposite parties V e r s u s Vijay Kanta wife of Sh.Narinder Pal; Vineet Samnol son of Sh.Narinder Pal; Both residents of Ward No.3, Samnol House, Opposite State Bank of Patiala, Mahatpur, Una (Himachal Pradesh) PRESENT:- Sh. Ashim Aggarwal, Advocate for the appellants/opposite parties. Sh.Ajay Singh Parmar, Advocate proxy for Sh.Deepak Aggarwal, Advocate for respondents/complainants. ============================================================ BEFORE:- JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT. MR.RAJESH K. ARYA, MEMBER.
PER JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT M.A. No.753 of 2023 in FA No.260 of 2023 (condonation of delay):-
Alongwith first appeal no.260 of 2023, application has been filed by the appellants/opposite parties for condonation of delay of 60 days (as per office 59 days) in filing the same.
Arguments on this application were heard. For the reasons stated in the application, delay of delay of 60 days (as per office 59 days) in filing this appeal is condoned and this application is disposed of accordingly.
Appeals no.168 of 2023 and 260 of 2023:-
The above captioned appeals have arisen out of the common order dated 01.06.2023 passed by the District Consumer Disputes Redressal Commission-II, U.T., Chandigarh (earlier known as District Forum and now referred as District Commission only), whereby consumer complaint bearing no.120 of 2019 stood partly allowed by it, as under:-
"......9 Taking into consideration the above discussion & findings, we are of the opinion that the deficiency in service has been proved on the part of the OPs. Therefore, the complaint stands partly allowed against the Opposite Parties No.1 & 2 with direction to pay a lumpsum compensation amount of Rs.1,25,000/- to the complainants towards loss, harassment, mental agony as well as litigation expenses.
This order shall be complied with by the Opposite Parties No.1 & 2 within a period of 45 days from the date of receipt of its certified copy, failing which they shall be liable to pay additional compensatory cost of Rs.25,000/- apart from above relief........"
The appellants/opposite parties have come up in FA No.260 of 2023 (M/s Omaxe Chandigarh Extension Developers Pvt. Ltd. and another Versus Vijay Kanta and another) with a prayer to set aside the impugned and on the other hand, the respondents/complainants have come up in FA No.168 of 2023 (Vijay Kanta and another Versus M/s Omaxe Chandigarh Extension Developers Pvt. Ltd. and another) seeking enhancement of the relief awarded by the District Commission in the impugned order.
The facts in brief are that the complainants were allotted residential unit bearing no.CRC/668B/UGF/1 (in short the unit) by the opposite parties in their project namely 'Celestia Royal, Chandigarh" at Omaxe New Chandigarh, Distt. SAS Nagar, Punjab vide Allotment Letter dated 23.9.2016, on receipt of initial amount as well as remaining scheduled payments. However, the final payment was to be made at the time of offer of possession of the said unit. Accordingly, the opposite parties vide letter dated 23.6.2018 offered possession of the said unit to the complainant with a request to deposit the remaining payment of Rs.41,58,681.34 which stood deposited by them vide cheque dated 4.7.2018. However, the opposite parties despite assurance and promise, failed to deliver the actual physical possession of the unit in question, complete in all respects, within a month or two from the date of the receipt of complete balance amount and ultimately handed over the possession only on 30.1.2019 vide letter, Annexure C-3 i.e. after a delay of 6 months, which has caused financial loss as well as harassment and agony to the complainants. It was averred that the opposite parties even failed to provide lift in the tower wherein the unit in question is located. Hence, consumer complaint was filed before the District Commission under the provisions of CPA, 1986.
Opposite parties in their joint written reply took objection that since the complaint filed is beyond pecuniary jurisdiction of the District Commission as such it deserves to be dismissed. On merits, while admitting the factual matrix of the case regarding allotment of the unit in question in favour of the complainants and delivery of possession thereof, it was stated that vide offer letter dated 23.6.2018, the complainants were asked to make the remaining payment within 15 days, whereafter, possession was to be delivered to them. It was averred that after making remaining payment on 10.8.2018, the complainants failed to come forward for executing necessary documents and also for taking over physical possession, despite reminders having been sent to them in the matter. They ultimately took possession of their unit on 30.01.2019, without any protest. It was pleaded that that lifts have also been installed in the building of the complainants. Denying other allegations, the opposite parties prayed for dismissal of the complaint.
In the rejoinder filed, the complainants reiterated all the averments contained in their complaint and controverted those of the opposite parties.
The contesting parties led evidence in support of their case.
The District Commission after considering the rival contentions of the contesting parties and on going through the material available on record, partly allowed the consumer complaint, in the manner stated above.
Hence these cross appeals.
Counsel for the appellants/opposite parties in FA No.260 of 2023 (M/s Omaxe Chandigarh Extension Developers Pvt. Ltd. and another Versus Vijay Kanta and another) submitted that specific objection qua pecuniary jurisdiction was taken by the opposite parties in their written version and also by way of moving application before the District Commission, because the complainants had paid total amount of Rs.1,02,52,655.34 ps. because as per Section 11 of the CPA, 1986, under which the consumer complaint had been filed, the pecuniary jurisdiction of the District Commission was restricted upto Rs.20 lacs only. He further submitted that even on merits, the case of the complainants deserved to be dismissed, as they themselves failed to take over possession of the unit in question, in time, which was offered vide letter dated 23.06.2018, Annexure OP-2, but delayed in taking over the same on 30.01.2019, Annexure C-3. He further submitted that because the District Commission was not having pecuniary jurisdiction to entertain and decide the consumer complaint, as such, the order impugned passed is nullity in the eyes of law and the same deserves to be set aside.
On the other hand, counsel for the complainants in FA No.168 of 2023 (Vijay Kanta and another Versus M/s Omaxe Chandigarh Extension Developers Pvt. Ltd. and another) submitted that although the District Commission while passing the impugned order has held that late delivery of possession of the unit in question, amounts to unfair and unjustified, yet, the amount awarded by it is highly meager, as no interest as delayed compensation and litigation expenses have been awarded.
Record of the District Commission was requisitioned.
We have heard the rival contentions of the parties and have also gone through the entire record of this case.
The moot question which needs to be decided by this Commission is, as to whether, the District Commission (the then District Forum) was having pecuniary jurisdiction to entertain and decide the consumer complaint or not?
It is not in dispute, that the complainants had filed consumer complaint bearing no.120 of 2019 before the District Commission under the provisions of Consumer Protection Act, 1986 (in short the CPA 1986). Section 11 of the then CPA 1986 speaks about the then jurisdiction of the District Commission, which reads as under:-
"...Section 11. Jurisdiction of the District Commission.
(1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed does not exceed rupees twenty lakhs..."
Perusal of Section 11 of CPA 1986 clearly says that the District Commission shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed does not exceed rupees twenty lakhs. Similarly, as per Section 17 of CPA 1986, it is provided that the State Commission shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed exceeds Rs.20 lacs but does not exceed rupees one crore and as per Section 21 of CPA 1986, the Hon'ble National Commission was having pecuniary jurisdiction, in the complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees one crore.
It is significant to mention here that perusal of relevant Section 11 extracted above, makes it very clear that the District Commission shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed does not exceed rupees twenty lakhs. However, in the present case, it is clearly evident from payment schedule, Annexure-A, forming part of the buyer agreement dated 23.09.2016, Annexure C-1 that cost of the unit in question was fixed at Rs.94,74,461.15 ps. Apart from it, it is also mentioned in Annexure-B which also forms part of the said agreement that this amount of Rs.94,74,461.15 ps. is excluding of other charges like stamp duty, registration charges, electricity meter charges, external electrification water and sewerage, external development charges and infrastructure development charges, car parking, club etc. It is further evident from statement of accounts dated 03.12.2020, Annexure OP/3 that total amount of Rs.1,02,52,655.34 ps. stood paid by the complainants to the opposite parties for the period from 23.12.2015 to 10.08.2018 i.e. (Rs.9451229.65 plus GST of Rs.801425.69ps.). Apart from it, the complainants have sought relief of Rs.5 lacs as compensation for mental agony and harassment and also interest @18% p.a. on the amount of Rs.41,58,681.34 ps. on account of delayed compensation for the period from 23.07.2018 to 30.01.2019. Thus, if we add the value of the goods/unit in question paid by the complainants and also the compensation claimed by them, it exceeds Rs.1.10 crores.
In para no.5 of the written statement filed by the opposite parties/Omaxe before the District Commission, a specific plea has been taken by them that because an amount of Rs.1,02,52,655.34 ps. stood paid by the complainants to them against the unit in question, as such, the District Commission lacks pecuniary jurisdiction. Relevant part of the said para is reproduced hereunder:-
"......That this Hon'ble Commission/Commission does not have pecuniary jurisdiction to entertain the instant complaint. That the complaint was filed prior to the enactment of the Consumer Protection Act, 2019 and as such, as per law at that time, the value of property had to be seen to determine the pecuniary jurisdiction. Admittedly, the total cost of the unit at the time of agreement was more than Rs.20 Lakhs and the pecuniary jurisdiction of the Commission was limited to Rs.20 lacs only and hence complaint was not maintainable. The OPs had filed an application for dismissal of the complaint on the ground of pecuniary jurisdiction, however, the same was rejected on the ground that the new Act had come into force and that the Commission could entertain complaints upto Rs.1 crore. However, it was incumbent upon the complainants to file a fresh complaint under the provisions of the new Act. However, no such amended complaint has been filed by the complainants. Furthermore, the total payment made by the complainants towards is Rs.1,02,52,655.34 as is clear from Ex. OP/3. That as per Section 34 of the Consumer Protection Act, 2019, the District Commission has jurisdiction to entertain complaints where the value of the goods or service paid as consideration does not exceed Rs.1 crore. Hence, even under the new Act, this Hon'ble Commission does not have the pecuniary jurisdiction as the total consideration paid is more than Rs.1 crore. Hence, the complaint ought to be dismissed on such ground alone being beyond pecuniary jurisdiction........"
In reply to para no.5 above, the complainants in their rejoinder stated that because they are claiming interest @18% per annum on the amount of Rs.41,58,681.34ps. and further an amount of Rs.5 lacs on account of physical harassment and further Rs.50,000/- litigation expenses as such this Commission has got the pecuniary jurisdiction to decide this complaint. However, it has nowhere been disputed by the complainants that they have paid total sale consideration to the tune of Rs.1,02,52,655.34 ps. to the opposite parties towards price of the unit in question. Relevant part of the said para no.5 replied by the complainants is reproduced hereunder:-
".....That in reply to the contents of para no.5 of the preliminary objections it is submitted that the complainants are claiming interest @18% per annum on an amount of Rs.41,58,681.34/- and further an amount of Rs.5 lacs on account of physical harassment and further Rs.50000/- litigation expenses and on account therefore of this Hon'ble Commission has got the pecuniary jurisdiction to entertain and decide the present complaint......"
It is also coming out from the record that an application under Section 11 of the CPA 1986 was also moved by the opposite parties before this District Commission seeking dismissal of the consumer complaint on the ground that it lacks pecuniary jurisdiction, which was dismissed by it vide order dated 19.11.2020 by holding that since the Consumer Protection Act 1986 has been repealed and Consumer Protection Act, 2019 has come into force, therefore, this application does not lie.
However, viewed from any angle, in view of the observations made above, we are of the considered view that the District Commission was not having pecuniary jurisdiction to entertain and decide the main consumer complaint, because under Section 11 of the CPA 1986, it is clearly provided that the District Commission shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed does not exceed rupees twenty lakhs, yet, the District Commission has wrongly dismissed the application aforesaid filed by the opposite parties for dismissal of the complaint for want of pecuniary jurisdiction, on the ground that the complainants have paid an amount of Rs.1,02,52,655.34 ps. against the unit in question. As stated above, if we add the value of the goods/unit in question paid by the complainants and also the compensation claimed by them, it exceeds Rs.1.10 crores. Thus, only the Hon'ble National Commission, at the relevant time, was having pecuniary jurisdiction to entertain and decide the main consumer complaint, out of which these appeals have arisen.
For the reasons recorded above, FA No.260 of 2023 titled as M/s Omaxe Chandigarh Extension Developers Pvt. Ltd. and another Versus Vijay Kanta and another stands allowed. The order dated 01.06.2023 passed by the District Commission in consumer complaint bearing no.120 of 2019 is set aside. The consumer complaint bearing no.120 of 2019 stands dismissed with no order as to cost, for want of pecuniary jurisdiction of the District Commission, under CPA 1986.
Consequently, FA No.168 of 2023 titled as Vijay Kanta and another Versus M/s Omaxe Chandigarh Extension Developers Pvt. Ltd. and another) filed by the appellants/complainants stands dismissed within no order as to cost, having been rendered infructuous.
However, liberty is granted to the complainants/appellants in FA No.168 of 2023 titled as Vijay Kanta and another Versus M/s Omaxe Chandigarh Extension Developers Pvt. Ltd. and another) to file complaint before the appropriate platform of law, having pecuniary and territorial jurisdiction in the matter.
Pending applications, if any, in both these cases, stand disposed of, accordingly.
Certified Copies of this order be sent to the parties, free of cost, forthwith and one copy thereof be placed in the connected file.
The files be consigned to Record Room, after completion.
Pronounced.
22.03.2024 Sd/-
[JUSTICE RAJ SHEKHAR ATTRI] PRESIDENT Sd/-
(RAJESH K. ARYA) MEMBER Rg.