National Consumer Disputes Redressal
Sanjay Saini vs M/S. Spaze Tower Pvt. Ltd. on 1 February, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 472 OF 2016 (Against the Order dated 03/03/2016 in Complaint No. 45/2016 of the State Commission Haryana) 1. SANJAY SAINI S/O. SH. RAM CHANDER SAINI, R/O. B-605, PLOT NO. 58, SUKRITI CGHS, SECTOR-56, GURGAON HARYANA-122011 ...........Appellant(s) Versus 1. M/S. SPAZE TOWER PVT. LTD. SPAZEDGE, SECTOR-47, GURGAON-SOHNA EXPRESSWAY, GURGAON-122002 HARYANA ...........Respondent(s)
BEFORE: HON'BLE DR. B.C. GUPTA,PRESIDING MEMBER
For the Appellant : Mr. Jinendra Jain, Advocate
with Mr. Shashwat Bhardwaj, Advocate For the Respondent : Dr. Bharat Bhushan Parsoon, Sr. Advocate
with Ms. Sonam Priya and
Mr. Piyush Sharma, Advocates
Dated : 01 Feb 2017 ORDER
PER DR. B.C. GUPTA, MEMBER
This first appeal has been filed under section 19 read with section 21(a)(ii) of the Consumer Protection Act, 1986 against the impugned order dated 03.03.2016, passed by the Haryana State Consumer Disputes Redressal Commission (hereinafter referred to as 'the State Commission') in Consumer Complaint No. 45/2016, vide which, the said complaint was disposed off, saying that the State Commission did not have the pecuniary jurisdiction to decide the matter. It was directed that the complaint may be filed before a competent district forum.
2. The appellant/complainant booked a flat, bearing No. F-53, Vth Floor, Tower F, measuring 1600 sq. ft. (super area) in the project "Spaze Privy," being developed by the OP Builder M/s Spaze Towers Private Limited at Sector 72, Gurgaon, Haryana. It is stated that the complainant paid a total sum of ₹53,94,675/- to the OP builder on various dates upto May 2012. A flat buyers' agreement was also entered between the parties on 15.07.2009, according to clause 29 of which, the possession was to be delivered within 36 months from the date of the agreement, i.e., 15.07.2012. In case of default in giving possession, the OP builder was required to give compensation @₹5/- per sq. ft. per month of the super area till the date of possession. It has been stated in the order passed by the State Commission that the possession was offered to the complainant in the month of January 2016 and hence, the OP builder was liable to pay ₹3,78,202/- for the period of delay. The complainant also requested that he should be paid compound interest @18% p.a. on the amount deposited by him and the said amount worked out to be ₹50,73,565.18/-. In addition, the complainant was eligible for discount of 7% on the price of the property, as he had made payments in time and hence, he was entitled to get ₹3,99,262/-. The complainant, therefore, demanded a total sum of ₹58,51,030/- from the OP Builder alongwith ₹10,00,000/- as compensation and ₹55,000/- as cost and ₹10,000/- as other expenses.
3. While passing the impugned order dated 03.03.2016, the State Commission erroneously quoted the price of the flat as ₹17,93,750/-. The State Commission observed that the price of the flat could not be counted as value of service, because the flat was immovable property. The State Commission also observed that the complainant had inflated the claim of compensation to suit the jurisdiction. The value of the service and compensation does not exceed ₹20 lakh, if payment of compensation of ₹5 per sq. ft. per month for delay in possession and discount of 7% on the price is taken into consideration and hence, the case was not within their pecuniary jurisdiction.
4. During hearing before me, the learned counsel for the appellant/complainant has drawn attention to a recent order dated 07.10.2016, passed by this Commission in CC No. 97/2016, "Ambrish Kumar Shukla & Ors. vs. Ferrous Infrastructure Pvt. Ltd." saying that a three-member bench of this Commission had held in the aforesaid order that the value of the goods or services and not the value or cost of the removing the deficiency in service alone, was to be considered for the purpose of determining the pecuniary jurisdiction. The learned counsel further stated that the State Commission had wrongly stated the value of flat as ₹17,93,750/- whereas the complainant had already deposited a sum of ₹53,94,675/- for the cost of the flat.
5. In response, the learned senior advocate for the respondent argued that the price of the flat was not to be counted for determining the issue of pecuniary jurisdiction. The State Commission had made it clear in para 3 of their order that the amount of discount calculated was ₹3,99,262.50ps. and the amount payable on account of delayed possession came to be ₹3,78,202.07/-. Both these amounts taken together came to be ₹7,77,464.50ps., which was much less than the pecuniary jurisdiction of the State Commission. The said finding of the State Commission had not been challenged by the complainant in the grounds of appeal.
6. I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me.
7. In the order dated 07.10.2016, passed by the three-member bench of this Commission in "Ambrish Kumar Shukla & Ors. vs. Ferrous Infrastructure Pvt. Ltd." (supra), it is mentioned, that the following issue was, interalia, referred in FA No. 166/2016 and allied matters by a single-member bench of this Commission to the larger bench:-
"(i) In a situation, where the possession of a housing unit has already been delivered to the complainants and may be, sale deeds etc. also executed, but some deficiencies are pointed out in the construction/ development of the property, whether the pecuniary jurisdiction is to be determined, taking the value of such property as a whole, OR the extent of deficiency alleged is to be considered for the purpose of determining such pecuniary jurisdiction."
8. The three-member bench of this Commission observed as follows on the above issue:-
"It is evident from a bare perusal of Sections 21, 17 and 11 of the Consumer Protection Act that it's the value of the goods or services and the compensation, if any, claimed which determines the pecuniary jurisdiction of the Consumer Forum. The Act does not envisage determination of the pecuniary jurisdiction based upon the cost of removing the deficiencies in the goods purchased or the services to be rendered to the consumer. Therefore, the cost of removing the defects or deficiencies in the goods or the services would have no bearing on the determination of the pecuniary jurisdiction. If the aggregate of the value of the goods purchased or the services hired or availed of by a consumer, when added to the compensation, if any, claimed in the complaint by him, exceeds Rs. 1.00 crore, it is this Commission alone which would have the pecuniary jurisdiction to entertain the complaint. For instance if a person purchases a machine for more than Rs.1.00 crore, a manufacturing defect is found in the machine and the cost of removing the said defect is Rs.10.00 lacs, it is the aggregate of the sale consideration paid by the consumer for the machine and compensation, if any, claimed in the complaint which would determine the pecuniary jurisdiction of the Consumer Forum. Similarly, if for instance, a house is sold for more than Rs.1.00 crore, certain defects are found in the house, and the cost of removing those defects is Rs.5.00 lacs, the complaint would have to be filed before this Commission, the value of the services itself being more than Rs.1.00 crore."
9. In the operative portion of the order it was stated as follows:-
"It is the value of the goods or services, as the case may be, and not the value or cost of removing the deficiency in the service which is to be considered for the purpose of determining the pecuniary jurisdiction."
10. It is manifestly clear from the order passed by this Commission in "Ambrish Kumar Shukla & Ors. vs. Ferrous Infrastructure Pvt. Ltd." (supra), that the value of the flat was to be taken into consideration for determining the pecuniary jurisdiction in the matter in hand.
11. The view taken by the State Commission in the impugned order is, therefore, not in accordance with law and the same is ordered to be set aside. The First Appeal is allowed. The complainant is given liberty to file fresh complaint in the matter, based on the principles laid down in the order dated 07.10.2016 of this Commission, before a consumer forum of competent jurisdiction. It is made clear that the complainant may seek exemption / condonation of time already spent before the Consumer Fora for the purpose of limitation in terms of the judgment of the Hon'ble Supreme Court in "Laxmi Engineering Works Vs. P.S.G. Industrial Institute [(1995) 3 SCC 583]".
...................... DR. B.C. GUPTA PRESIDING MEMBER