Anurag Rudra @ Anurag Tiwary and another vs Emaar MGF Land Limited and another

This Consumer Complaint No. 1345 of 2016 has been filed by Anurag Rudra @ Anurag Tiwary & Anr. against the opposite parties, Emaar MGF Land Limited & Anr. 2. The case of the complainants is that the representative of the opposite parties approached the complainant No. 1 with a proposal for booking a commercial unit in its forthcoming residential and commercial complex in Gurgaon, Haryana, namely capital Tower-I. Accordingly, complainants-booked the commercial unit No. CT 1-GF-002, measuring 185.43 Sq Metres (1996 sq. ft.) in Capital Tower-1, Sector 26, M.G Road, Gurgaon by paying 10% of the total consideration of Rs. 6,54,19,521 between July, to October, 2013. The provisional allotment of unit was issued vide letter dated 29.7.2013. Some further demands were made by the opposite parties, which have not been paid by the complainants and complainants sent a legal notice to the opposite parties informing them that the opposite parties are sending further demands, whereas the construction of the said building has not yet started and in this situation complainants requested for refund of their deposited amount. Finally this complaint No. 1345 of 2016 has been filed by the complainants with the following prayer: "(a) to refund/return the amount of Rs. 65,19,521 (Rupees sixty five lakh nineteen thousand five hundred twenty one only) paid towards the cost of the ''Retail Space'' in the project "Capital Tower-I" to the opposite party; (b) to award compensation of Rs. 18,00,000 calculated @ 24% per annum on the paid amount of Rs. 25,000.00 (Rupees twenty five only) to the opposite party against the booking of the ''Retail Space'' on 29.7.2013 from August, 2013 to July, 2016 and onwards till payment; (c) to award compensation of Rs. 27,33,274 calculated @ 24% per annum on the paid amount of Rs. 40,19,521 (Rupees forty lakh nineteen thousand five hundred twenty one only) to the opposite party against the booking of the ''Retail Space'' on 4.10.2013 from 5.10.2013 to 4.10.2016 and onwards till payment; (d) to award compensation for a sum of Rs. 4,00,000 (Rupees Four Lakh only) on account of continuous harassment, torture, mental agony, financials sufferings, depression, etc. as a result of deliberate deficiency in services and unfair trade practise by the opposite party. (e) to award exemplary cost in favour of the complainant and against the opposite party as this Hon''ble Commission deems fit and proper in the facts and circumstances of the case; (f) grant such other or further relief(s) to the complainant as this Hon''ble Commission may deem fit and proper in the facts and circumstances of the case." 3. Heard the learned Counsel for the complainants at the admission stage on the maintainability of the complaint. 4. Learned Counsel argued that the amount paid is Rs. 65,19,521. If the interest is added @ 24% p.a. on this amount and the compensation for harassment and mental agony, the amount exceeds Rupees One Crore and this Commission will have the jurisdiction. In support of his argument, the learned Counsel cited the judgment of Ankur Goel v. Unitech Reliable Projects Pvt. Ltd., 2016 Law Suit (CO) 1217. wherein the following has been held: "7. The legal proposition which emerges from the decision of this Commission in Swarn Talwar which was later upheld by the Hon''ble Supreme Court is that since the interest in such matters is awarded by way of compensation, the amount of interest claimed by the flat buyers needs to be added to the principal amount paid by them for the purpose of deciding whether a particular complaint falls within the pecuniary jurisdiction of this Commission or not. In both these cases, when compensation claimed in the form of interest by the complainants is added to the principal amount paid by them, the aggregate comes to more than Rupees one crore. Therefore, it would be difficult for us to accept the contention that this Commission lacks pecuniary jurisdiction to entertain these complaints and the complaints should be relegated to the concerned State Commission." 5. Learned Counsel also cited the judgment of this Commission in case of Pankaj Kothari & Anr. v. Unitech Limited., III (2016) CPJ 195 (NC), It has been observed: "8. During the course of arguments, it was contended by the learned Counsel for the opposite party that since the cost of the flats was less than Rs. one crore each, this Commission lacks pecuniary jurisdiction to entertain the complaint. I however, find no merit in contention. A similar plea was rejected by this Commission in Swarn Talwar (supra) and the said order, to the extent it is relevant in this regard reads as under: "5. The first question which arises for our consideration in these cases is as to whether this Commission possesses the requisite pecuniary jurisdiction to entertain these complaints. Section 11(1) of the Consumer Protection Act read with 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. 1,00,00,000. The contention of the learned Counsel for the opposite party is that interest claimed by the complainants cannot be termed as compensation and if the interest component is excluded, the pecuniary value of the complaint does not exceed Rs. 1,00,00,000 except in one case. The learned Counsel for the complainants on the other hand contended that the interest which they have claimed along with refund of the principal sum even if not so described specifically, is by way of compensation only, since the opposite party has been deficient in rendering services to the complainants by not delivering possession of the flats on or before the time agreed in this regard. ................. It would, thus, be seen that the Hon''ble Supreme Court recognised that the interest to the flat buyers in such cases is paid by way of compensation. Therefore, there is no reason why the interest claimed by the complainants or at least part of it should not be taken into consideration for the purpose of deciding the pecuniary jurisdiction of this Commission. If this is done, the aggregate amount claimed in each of the complaints exceeds Rs. 1,00,00,000 and, therefore, this Commission does possess the requisite pecuniary jurisdiction." 6. I have carefully considered the arguments advanced by learned Counsel and have perused the record. As per Section 21(1)(a) of the Consumer Protection Act 1986, the jurisdiction of this Commission is for the complaint where the value of goods and services and the compensation exceeds Rupees one crore. Clearly in this case, the value of the service is only Rs. 65,19,521 viz, the amount paid by the complainants to the opposite party. The compensation has been, claimed on many yardsticks by the complainants. The complainants have claimed a compensation of Rs. 45,33,274 calculated on the basis of 24% p.a. interest on the deposited amount and Rs. 4,00,000 as compensation for mental agony and harassment. The cases cited by the learned Counsel do indicate that interest may be considered as compensation, but the question is - interest for what period should be considered as compensation This issue has been considered by this Commission in Praveen Mehta v. Bengal Unitech Universal, CC No. 1457 of 2015, decided on 29th March, 2016 (NC), wherein the following has been observed : "13. If we consider interest as compensation, then we have to consider the period for which interest should be considered for this purpose. Obviously, no interest is payable till the promised date of possession. However, interest will start from the date the opposite party has defaulted and for valuation purposes, it can be considered for a period of two years within which the complaint may be filed, though the actual question of interest will be decided after the case is finally disposed of and it will depend on the facts and circumstances of each case. From this consideration also, the total amount does not exceed Rs. 1 crore." 7. Similar view has been taken in the following cases as well: (i) Gaurav Parasrampuha v. Bengal Unitech Universal Infrastructure Pvt. Ltd., CC No. 173 of 2016, decided on 25.5.2016 (NC). (ii) Pankaj Gupta v. M/s. Unitech Ltd., CC No. 1283 of 2015, decided on 4.4.2016 (NC) " 8. The latest general trend in the judgments of this Commission has been to award maximum 18% interest in some cases on refund of the deposited amount if found justifiably refundable. So, if two years'' interest is added to the principal amount, the figure becomes Rs. 88,66,548. Even if we add the demanded compensation of Rs. 4,00,000 for harassment and mental agony, this figure does not cross mark of Rupees one crore. 9. Though the complainants have prayed for interest on the deposited amount, it is not disputed that they have only deposited the booking amount, which is 10% of the total consideration amount. As per agreement entered between the parties, it is provided that- "11. The Applicant understands that the Company shall treat (fifteen percent) of the Total Consideration to be paid by the Applicant as per the Payment Plan as Earnest Money to ensure due fulfilment, by the Applicant of the terms and conditions as contained herein and as may be contained in the Agreement. 12. In the event, the Applicant is in breach of any terms and conditions including but not limited to, send the duly signed copy of the Agreement within 30 days from the date of dispatch by the Company, the company shall be released and discharged of all liabilities and obligations under this Application and/or Agreement. Pursuant to any of the conditions aforesaid, the Applicant understands that the Company at any stage shall have the right to resell the Unit to any third party or deal with the same in any other manner as the Company may deem fit. On happening of such an event, the Company shall have the right to cancel the allotment/application and refund to the Applicant the amount paid by the Applicant without any interest after deducting the Earnest Money along with Non-Refundable Amounts due and payable by the Applicant. The Applicant agrees that in case of such cancellation, refund shall be made only after realization of such refundable amount on further sale/resale of the Unit to any their party." 10. From the above, it comes out that interest is not apparently payable on the amount of refund if any. Therefore, prima facie, interest cannot be added as compensation to the amount paid for deciding the pecuniary jurisdiction in the present case. 11. Based on the above discussion, I find that this Commission lacks pecuniary jurisdiction to entertain the present complaint No. 1345 of 2016. Hence, the complaint is dismissed for want of pecuniary jurisdiction. However, the liberty is granted to the complainants to present their complaint before the appropriate Forum, if so desired. Complaint dismissed.