State Consumer Disputes Redressal Commission
Amit Dang & Anr. vs M/S Bestech India Pvt. Ltd. on 27 September, 2023
C.C 233/2017 D.O.D.: 27.09.2023
MR. AMIT DANG AND ANR. VS. M/S BESTECH INDIA PVT. LTD.
IN THE DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of Institution: 13.02.2017
Date of hearing: 29.05.2023
Date of Decision: 27.09.2023
COMPLAINT CASE NO.- 233/2017
IN THE MATTER OF
1. MR. AMIT DANG,
S/O MR. KAILASH DANG,
R/O S-128, GK-1,
DELHI - 110048.
2. MS. SHUCHI DANG,
W/O AMIT DANG,
R/O S-128, GK-1,
DELHI - 110048.
(Through: Mr. Hitender Kapur and Mr.
Sagar Chawla, Advocates)
...Complainants
VERSUS
M/S BESTECH INDIA PVT. LTD.,
1/2873 RAM NAGAR, LONI ROAD,
SHAHDARA, DELHI - 110032.
ALSO AT:
M/S BESTECH INDIA PVT. LTD.,
PLOT NO. 124, SECTOR-44,
GURGOAN-122003, HARYANA.
ALSO AT:
M/S BESTECH INDIA PVT. LTD.,
DISMISSED PAGE 1 OF 11
C.C 233/2017 D.O.D.: 27.09.2023
MR. AMIT DANG AND ANR. VS. M/S BESTECH INDIA PVT. LTD.
UNIT NO. 5D, 5TH FLOOR,
ASSETS AREA 4, DELHI AEROCITY,
HOSPITALITY DISTRICT,
NEW DELHI - 110037.
(Through: Mr. Ashish Kumar, Advocates)
...Opposite Party
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
HON'BLE MR. J.P. AGRAWAL, MEMBER (GENERAL)
Present: Complainant no.1 in person along with Mr. Yatin
Dharan, proxy counsel for the Complainants.
Mr. Ashish Kumar, counsel for the OP.
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
JUDGMENT
1. The present complaint has been filed by the Complainants before this commission alleging deficiency of service on the part of Opposite Party and prayed following reliefs:
a. An order against the Opposite Party directing them to refund a sum of Rs. 60, 00, 000/- alongwith 12% interest thereon starting from 17.12.2012 till the date of Realization alongwith a sum of Rs.10,00,000% (Rupees fifteen lacs only) as damages towards mental b. Any other relief may be passed in favour of the complainant and
2. Brief facts necessary for the adjudication of the present complaint are that in November 2012, the Complainants booked two apartments, bearing numbers G-0601 and H-0202, for a total sale consideration price of Rs. 98,65,275/- with the Opposite Party in the 'Park View Sanskruti' project situated at Sector-92, Gurgaon, DISMISSED PAGE 2 OF 11 C.C 233/2017 D.O.D.: 27.09.2023 MR. AMIT DANG AND ANR. VS. M/S BESTECH INDIA PVT. LTD.
Haryana. The Complainants also paid a booking amount of Rs. 10,00,000/- for each apartment on 26.11.2012. The managing director of the Opposite Party, Mr. Dharmender Bhandari, assured the Complainants that the Opposite Party had all the necessary licenses from the concerned authorities, and the project would be launched in December 2012. However, the project was not launched in December as initially promised; it was first postponed to January 2013 and eventually launched in August 2013. Subsequently, after six months, the Opposite Party demanded an additional payment of Rs. 20,00,000/- for both apartments, which the Complainants duly paid by 10.07.2013. Despite numerous requests, the Opposite Party failed to execute the Buyer's Agreement with the Complainants. Furthermore, the project was significantly delayed beyond the scheduled timeline, prompting the Complainants to seek a refund of the amount paid. However, the Opposite Party threatened the Complainants, indicating that their money would be forfeited. Left with no other option, the Complainants maintained their bookings and paid an additional amount of Rs. 20,00,000/- for each apartment. More so, upon visiting the project site, the Complainants were shocked to find that the project had been at a standstill for the past two years. Despite several communications regarding the construction of the project, the Opposite Party failed to provide any satisfactory response.
The Complainants over the time had paid a sum of Rs. 60,00,000/- to the Opposite Party as and when demanded by it. The Complainants also sent a legal notice dated 01.05.2015 to the Opposite Party asking for refund of the amount but was of no avail.
DISMISSED PAGE 3 OF 11 C.C 233/2017 D.O.D.: 27.09.2023
MR. AMIT DANG AND ANR. VS. M/S BESTECH INDIA PVT. LTD.
3. The Opposite Party has contested the present case and raised preliminary objections as to the maintainability of the complaint case. The counsel of the Opposite Party submitted that the Complainants are not consumers under the Consumer Protection Act, 1986 as they invested the money to earn profit, which amounts to commercial purpose. The counsel for the Opposite Party also contended that the present complaint is barred by limitation as per Section 24A of the Consumer Protection Act, 1986 as the Opposite Party terminated the provisional allotment of the Complainants on 28.01.2015 and the present complaint is filed after 2 years i.e., on 13.02.2017. He further submitted that there is no cause of action in favour of the Complainants to file the present complaint. He also submitted that the present complaint is also barred by on account of pecuniary jurisdiction.
4. The counsel of the Opposite Party further submitted that this commission does not have the territorial jurisdiction to try and entertain the present complaint as per clause 17 of the terms and condition, only courts at Gurgaon will have the jurisdiction to adjudicate the present complaint. He further submitted that the complainant defaulted in making timely payments as per the payment schedule. Pressing the aforesaid objections, the counsel appearing on behalf of the Opposite Party prayed that the complaint be dismissed.
5. The Complainant has filed the Rejoinder rebutting the written statement filed by the Opposite Party. Both the parties have duly filed their Evidence by way of Affidavit in order to prove their averments on record.
6. Both the parties also filed their written arguments.
DISMISSED PAGE 4 OF 11 C.C 233/2017 D.O.D.: 27.09.2023
MR. AMIT DANG AND ANR. VS. M/S BESTECH INDIA PVT. LTD.
7. We have perused the material available on record and heard the counsel for the parties.
8. On perusal of record, it is noted that the Complainants had purchased two apartment bearing nos. G-0601 and H-289 in the project of the Opposite Part and paid a sum of Rs.60,00,000/- to the Opposite Party towards the total sale price of both the apartments is Rs. 2,75,22,560/, which is evident from Annexure-R4.
9. Before delving into the merits of the present case, it is necessary to deal preliminary objection raise by the Opposite Party related to pecuniary jurisdiction of the present complaint.
10. Whether this commission has pecuniary jurisdiction to adjudicate the present complaint?
11. At the outset, we deem it appropriate to refer to the dicta of the Hon'ble National Commission in Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd. reported at I (2017) CPJ 1 (NC), wherein it has been held as under:-
"12. Section 21 of the Consumer Protection Act, to the extent it is relevant provides that this Commission shall have jurisdiction to entertain complaints where the value of the goods or services and compensation, if any, claimed exceeds Rs. 1.00 crore. Therefore, what has to be seen, for the purpose of determining the pecuniary jurisdiction, is the value of the goods or services and the amount of the compensation claimed in the complaint. If the aggregate of
(i) the value of the goods or services and (ii) the compensation claimed in the complaint exceeds Rs. 1.00 crore, this Commission would have pecuniary jurisdiction to entertain the complaint. Similarly, if the aggregate of the DISMISSED PAGE 5 OF 11 C.C 233/2017 D.O.D.: 27.09.2023 MR. AMIT DANG AND ANR. VS. M/S BESTECH INDIA PVT. LTD.
value of (i) the goods or services and (ii) compensation, if any, claimed in the complaint exceeds Rs. 20.00 lacs but does not exceed Rs. 1.00 Crore, the State Commission would have the pecuniary jurisdiction to entertain the complaint. Since a complaint under Section 12(1)(c) of the Consumer Protection Act can be filed only where there are numerous consumers having the same interest and it has to be filed on behalf of or for the benefit of all the consumers so interested i.e. all of the numerous consumers having the same interest, it is the aggregate of the value of the goods purchased or services hired or availed of, by all those numerous consumers and the total compensation, if any, claimed for all those numerous consumers, which would determine the pecuniary jurisdiction of this Commission. If the aggregate of the value of the goods purchased or the services hired or availed of by all the consumers having the same interest and the total compensation, if any, claimed for all of them comes to more than Rs. 1.00 crore, the pecuniary jurisdiction would rest with this Commission alone. The value of the goods purchased or the services hired or availed of and the quantum of compensation, if any, claimed in respect of the one individual consumer therefore, would be absolutely irrelevant for the purpose of determining the pecuniary jurisdiction in such a complaint. In fact, this issue is no more res Integra in view of the decision of a Four-Members Bench of this Commission in Public Health Engineering Department Vs. Upbhokta Sanrakshan Samiti I (1992) DISMISSED PAGE 6 OF 11 C.C 233/2017 D.O.D.: 27.09.2023 MR. AMIT DANG AND ANR. VS. M/S BESTECH INDIA PVT. LTD.
CPJ 182 (NC). In the above referred case, a complaint was preferred, seeking to recover compensation for alleged negligence on the part of the petitioner which had resulted in a large number of persons getting infected by Jaundice. The names of 46 such persons were mentioned in the complaint but it was alleged that there were thousands of other sufferers who were similarly placed and that complaint was filed on behalf of all of them. The complainant had sought compensation of Rs. 20,000/- for every student victim, Rs. 10,000/- for every general victim and Rs. 1,00,000/- for the legal representatives of those who had died due to Jaundice. The District Forum held that it had no pecuniary jurisdiction to adjudicate upon the complaint. The State Commission took the view that the District Forum has to go by the value as specified for each consumer. Rejecting the view taken by the State Commission, this Commission inter-alia held as under: "5. In our opinion this proposition is clearly wrong since under the terms of Section 11 of the Act the pecuniary jurisdiction of the District Forum would depend upon the quantum of compensation claimed in the petition. The view expressed by the State Commission is not based on a correct understanding or interpretation of Section 11. On the plain words used in Section 11 of the Act, the aggregate quantum of compensation claimed in the petition will determine the question of jurisdiction and when the complaint is filed in a representative capacity on behalf of several persons, as in DISMISSED PAGE 7 OF 11 C.C 233/2017 D.O.D.: 27.09.2023 MR. AMIT DANG AND ANR. VS. M/S BESTECH INDIA PVT. LTD.
the present case, the total amount of compensation claimed by the representative body on behalf of all the persons whom it represents will govern the valuation of the complaint petition for purposes of jurisdiction". 6. The quantum of compensation claimed in the petition being far in excess of Rs. 1.00 lac the District Forum was perfectly right in holding that it had no jurisdiction to adjudicate upon the complaint. The reversal of the said order by the State Commission was contrary to law"
Therefore, irrespective of the value of the goods purchased or the service hired and availed of by an individual purchaser/allottee and the compensation claimed in respect of an individual purchaser/allottee, this Commission would have the pecuniary jurisdiction to entertain the complaint if the aggregate of the value of the goods purchased or the services hired or availed of by the numerous consumers on whose behalf or for whose benefit the complaint is filed and the total compensation claimed for all of them exceeds Rs. 1.00 crore."
12. From the aforesaid dicta of the Hon'ble National Commission, it flows that when a complaint is instituted under Section 12(1)(c) of the Consumer Protection Act, the pecuniary jurisdiction is to be determined on the basis of aggregate of the value of the goods purchased or the services hired or availed by the consumer on whose behalf or for whose benefit the complaint is instituted and the total compensation claimed in respect of such consumers.
DISMISSED PAGE 8 OF 11 C.C 233/2017 D.O.D.: 27.09.2023
MR. AMIT DANG AND ANR. VS. M/S BESTECH INDIA PVT. LTD.
13. We also deem it appropriate to refer to Section 17 of the Consumer Protection Act, 1986 which provides as under:
"(1) Subject to the other provisions of this Act, the State Commission shall have jurisdiction--
(a) to entertain-
(i) complaints where the value of the goods or services and compensation, if any, claimed [exceeds rupees twenty lakhs but does not exceed rupees one crore]; and
(ii) appeals against the orders of any District Forum within the State; and
(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any District Forum within the State, where it appears to the State Commission that such District Forum has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity (2) A complaint shall be instituted in a State Commission within the limits of whose jurisdiction-
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain; or
(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, DISMISSED PAGE 9 OF 11 C.C 233/2017 D.O.D.: 27.09.2023 MR. AMIT DANG AND ANR. VS. M/S BESTECH INDIA PVT. LTD.
actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such case either the permission of the State Commission is given or the opposite parties who do not reside or carry on business or have a branch office or personally works for gain, as the case may be, acquiesce in such institution; or (c) the cause of action, wholly or in part, arises."
14. Analysis of Section 17 of the Consumer Protection Act, 1986 leads us to the conclusion that this Commission shall have the pecuniary jurisdiction in cases where the total claim including the compensation is more than twenty lakhs and less than One Crore.
15. Having discussed the statutory position, the facts of the present case reflect that the aggregate value of the both Apartments is Rs. 2,75,22,560/, which beyond the pecuniary jurisdiction of this commission. Consequently, this Commission does not have the pecuniary jurisdiction to deal with the present complaint.
16. Therefore, keeping in view the law settled by the Hon'ble National Commission and the facts of the present case, we are of the view that since the Commission does not have pecuniary jurisdiction, the present complaint stands dismissed.
17. Parties shall bear their own cost.
18. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
19. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
DISMISSED PAGE 10 OF 11 C.C 233/2017 D.O.D.: 27.09.2023
MR. AMIT DANG AND ANR. VS. M/S BESTECH INDIA PVT. LTD.
20. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) J.P. AGRAWAL MEMBER (GENERAL) Pronounced on:
27.09.2023 DISMISSED PAGE 11 OF 11