National Consumer Disputes Redressal
Deepak Sharma vs M/S. Bptp Ltd. on 24 April, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 3179 OF 2017 1. DEEPAK SHARMA ...........Complainant(s) Versus 1. M/S. BPTP LTD. ...........Opp.Party(s)
BEFORE: HON'BLE MR. PREM NARAIN,PRESIDING MEMBER
For the Complainant : Mr. Aditya Parolia, Advocate with
Mr. Yogesh Vishnoi, Advocate For the Opp.Party :
Dated : 24 Apr 2018 ORDER
1.This complaint has been filed by Deepak Sharma against the opposite party.
2. The brief facts of the case are that the complainant had booked an independent Residential Floor (hereinafter referred as "Unit") worth INR.1,04,05,005/- (Rupees One Crore Four Lakh Five Thousand Five Only) in the project "Astaire Gardens" at Sector 70A, Gurgaon on 29th July 2011. An allotment letter dated 24th August 2011 was issued by the opposite party to the complainant stating that the complainant has been allotted Unit No.C-26-GF. Subsequently the opposite party after a delay of more than 5 months and after collecting INR.14,00,000/- (Rupees fourteen lakhs only) from the complainant, executed the floor buyer's agreement on 11.01.2012. As per the agreement the complainant was to get the possession of the unit by July 2015. However, the opposite party has till date not only failed to handover the possession of the unit, but has also failed to even start the construction of the unit till date. Now, the complainant does not want to proceed with the possession of the flat due to various reasons. The complainant wants refund of the entire money paid by him along with 18 % interest p.a. from the date of payment till the date of refund. Aggrieved, the complainant has filed the present complaint.
3. The learned counsel for complainant was heard for admissibility and the record was perused.
4. It was stated by the learned counsel that the complainant had booked apartment with the opposite party for a total consideration of Rs.1,04,05,005/- and various installments were paid to a total amount of Rs.32,47,248/-. As the construction did not proceed, Opposite party failed to deliver possession in time. Complainant does not want to pursue with the possession as his money would be blocked for many years. In these circumstances he is requesting for refund. It was further stated that in the light of the judgement of the larger bench of this Commission in Consumer case no 97of 2016 Ambrish Kumar Shukla and others vs. Ferrous Infrastructure Pvt Ltd. decided on 7.10.2016 (NC), the amount of total consideration as agreed between the parties is to be taken into consideration for deciding the pecuniary jurisdiction of the consumer forum which in the present case is more than rupees one crore and therefore, this Commission will have pecuniary jurisdiction to decide the present complaint.
5. I have considered the arguments advanced by the learned counsel for the complainant and have examined the record. The following prayer has been made in the complaint.
I. Direct the opposite party for an immediate 100% refund of the total amount of INR.32,47,248/- (Rupees Thirty Two Lakhs Forty Seven Thousand Two Hundred Forty Eight Only) paid by the complainant, along with a penal interest of 18% per annum from the date of the receipt of each payment made to the opposite party.
II. Direct the opposite party to pay compensation of Rs.10,00,000/- (rupees Ten Lakhs only) to the complainant for mental agony, harassment, discomfort and undue hardships caused to the complainant as a result of the above acts and omissions on the part of the opposite party.
III. Direct the opposite party to pay a sum of Rs.1,50,000/- (Rupees one lakhs and fifty thousand only) to the complainant as a whole, towards litigation costs;
IV That any other and further relief in favour of the complainant as the Hon'ble Commission may deem fit and proper in the fact and circumstances of the case."
6. It is clear that the main request is for refund of the deposited amount of Rs.32,47,248 with 18% interest p.a. Apart from this, the complainant has also requested for a compensation of Rs.10,00,000/- and cost of litigation Rs.1,50,000. The Section 21(a)(i) of the Consumer Protection Act ,1986 reads as under:-
"21 Jurisdiction of the national commission -Subject to the other provisions of this Act , the National commission shall have jurisdiction -
(a)to entertain -
(i) complaints where the value of goods or services and compensation , if any claimed, exceed {rupees one crore}"
7. This Commission has decided the issue of pecuniary jurisdiction in the matter of Ambrish Kumar Shukla & Ors. (supra). The same judgment in para 15 while giving the gist of answers to various questions, mentions the following:-
"15. Issue No. iii The consideration paid or agreed to be paid by the consumer at the time of purchasing the goods or hiring or availing of the services, as the case may be, is to be considered, along with the compensation, if any, claimed in the complaint, to determine the pecuniary jurisdiction of a Consumer Forum."
8. From the above it is clear that the consideration paid at the time of hiring of the service of the opposite party may also decide the pecuniary jurisdiction in certain cases, particularly in cases of refund where no further amount is to be paid. In the present case only Rs.32,47,248/- has been paid and therefore, looking from this angle this Commission does not have the pecuniary jurisdiction to decide the present complaint. The value of consideration as per the definition of "consumer" given under Section 2(1)(d) of the Consumer Protection Act, 1986 includes "partly paid and partly promised". Thus, in case of refund of the amounts paid to the opposite party/builder, there would only be the element of "partly paid" and the element of "promised to be paid" would be missing. Thus, the consideration in a case of refund would only mean the amount paid and therefore, consideration paid in the above quoted observation in the decision in Ambrish Kumar Shukla & Ors. (supra) could be only the amount paid by the complainant to the opposite party and this shall decide the pecuniary jurisdiction of the consumer forum. Obviously, there is difference in the cases where parties want to go ahead and conclude the sale of goods or availment of services and where one party is only seeking refund and thereby clearly deciding for non-execution of the agreement. Thus, the value of service in a complaint case seeking refund of the paid amount would be limited to the amount paid whose refund has been sought.
9. Based on the above consideration, it is clear that in the present case even if total refund of Rs.32,47,248/- is taken into consideration along with interest @18% p.a. and compensation demanded, the total figure does not cross the limit of Rupees One Crore. Hence, this Commission does not have the pecuniary jurisdiction to entertain this complaint.
10. On the basis of above discussion, the present complaint is dismissed for want of pecuniary jurisdiction. However, liberty is granted to the complainant to file the consumer complaint before the concerned State Commission, which shall decide the complaint on merits. The time taken in this Commission shall not be counted for the purposes of limitation.
...................... PREM NARAIN PRESIDING MEMBER