National Consumer Disputes Redressal
Naina Semiconductors Ltd. vs Assotech Moonshine Urban Developers ... on 4 September, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 1776 OF 2018 1. NAINA SEMICONDUCTORS LTD. ...........Complainant(s) Versus 1. ASSOTECH MOONSHINE URBAN DEVELOPERS PVT. LTD. ...........Opp.Party(s)
BEFORE: HON'BLE MR. PREM NARAIN,PRESIDING MEMBER
For the Complainant : Mr. Arpit Bhargava, Advocate For the Opp.Party :
Dated : 04 Sep 2018 ORDER
1.This complaint has been filed by Naina Semiconductors Ltd. against the opposite party.
2. The brief facts of the case are that Opposite party had a project called "Assotech Blith. The Basic sale price of the apartment was Rs.1,08,10,800/-.. It was about to be completed within 42 months from the date of allotment in January 2016. Apartment was allotted on 11.7.2012 to the complainant company for the employees of the company. Total amount paid by the complainant is Rs.48,22,309/-. Possession of the apartment was not given in stipulated time and the terms of allotment were cancelled too on 07.07.2018.
3. Hence the complaint.
4. The learned counsel for complainant was heard on admissibility and the record was perused.
5. It was stated by the learned counsel that the complainant had booked apartment with the opposite party for a total consideration of Rs.1,08,10,800 and various installments were paid to a total amount of Rs.48,22,309. As the construction did not proceed, Opposite party failed to deliver possession in time. Complainant does not want to pursue with the possession as their money would be blocked for many years. In these circumstances they are requesting for refund. It was further stated that in the light of the judgement of the larger bench of this commission in the matter of Consumer case no 97 of 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 jurisdiction to decide the present complaint.
6. 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.
"A. To refund the amount of Rs.48,22,309 (Rupees Forty Eight lakhs Twenty Two Thousand Three Hundred Nine only) along with interest at the rate of 18% p.a. from the date of respective deposit till the date of payment by the opposite party;
B. To pay compensation totalling to Rs.25,00,000/- (Rupees Twenty Five Lakhs) for mental agony, harassment and inconvenience caused by opposite party to complainant due to deficiency in services;
B. To pay litigation cost to the tune of Rs.5,00,000/- (Rupees Five Lakhs) to complainant;
D. Pass such other or further relief which this Hon'ble Commission deems fit in the facts and circumstances of the present complaint and in favour of complainant."
7. It is clear that the main request is for refund of the deposited amount of Rs.48,22,309 with 18% interest p.a. Apart from this the complainant has also requested for a compensation of Rs.25,00,000/- and cost of litigation Rs.5,00,000. 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}"
8. 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."
9. 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.48,22,309/- 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) would 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.
10. It is clear that the complainant has demanded compensation of Rs.25,00,000/- apart from interest @18% p.a. on the deposited amount. This Commission in Gaurav Aneja & Anr. Vs. Supertech Limited, II (2018) CPJ 365 (NC) has taken a view that compensation for mental agony and harassment would be covered in 18% p.a. interest as interest is also a part of compensation as held by the Hon'ble Supreme Court in Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65. Hence, it is clear that complainant has sought separate compensation of Rs.25,00,000/- and cost of litigation of Rs.5,00,000/- to inflate the claim for achieving the pecuniary jurisdiction of this Commission.
11. Based on the above consideration, it is clear that in the present case, even if total refund of Rs.48,22,309/- is taken into consideration along with interest @18% p.a. 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.
12. 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 appropriate consumer complaint before the concerned State Commission, which shall decide the complaint on merits without raising the issue of pecuniary jurisdiction. The time taken in disposal of the complaint by this Commission shall not be counted for the purposes of limitation.
13. Registry is directed to return to the complainant the statutory fees paid by the complainant at the time of filing of the present complaint.
...................... PREM NARAIN PRESIDING MEMBER