Devesh Aagarwal vs M/S. Jaypee Infratech Ltd. & Anr

This complaint has been filed by the complainant Devesh Aagarwal against the opposite parties, M/s. Jaypee Infratech Ltd. and Anr.

Brief facts as alleged in the complaint are that the complainant bought a flat in Krescent Homes, NOIDA from the opposite parties for a total

consideration of Rs.51,94,850/-. The complainant is the second allottee and the first allottee had purchased house in Krescent Homes from the

opposite parties. It is stated that the complainant has paid Rs.47,09,139/-. It has been alleged in the complaint that opposite parties informed the

complainant that the possession of the flat would be ready in March, 2017. However, the possession has not been handed over to the complainant.

Aggrieved by the act of the opposite parties, the present complaint has been filed with the following prayers:-

“1. Direct the Opposite Parties to jointly and severally refund the principle amount paid by the Complainant, totalling to the tune of Rs.47,09,139/-

of complainant along with interest @ 18% for unjust enrichment on the said amount by the Opposite parties in the sum of Rs.28,50,402/- of

complainant; totalling to the tune of Rs.75,59.541/- as on date of filing the present complaint along with all further sums till realisation with pendentelite

and future interest @ 18%p.a.

Compensation amounting to the tune of Rs.20,00,000/- for mental and financial harassment and agony and also based on appreciation of prices for

another similar flat of which ready possession is available as on date;

Direct that the cost of litigation may also be awarded suitably i.e. Rs.2,00,000/-;

AND

Pass any other judgment, order or direction as this Hon’ble Commission may deem fit and proper in facts and circumstances of the case.â€​

Heard the learned counsel for the complainant at the admission stage. The learned counsel mentioned that the complaint has been filed for refund

of Rs.47,09,139/- along with interest @ 18% p.a., which comes to Rs.75,59.541/-. Apart from this a compensation of Rs.20,00,000/- has been

demanded by the complainant along with cost of Rs.2,00,000/-. The learned counsel stated that in the light of decision of the larger Bench of this

Commission in the matter of Consumer Case No.97 of 2016, Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd., decided on

07.10.2016 (NC), the total consideration of the flat is to be considered for deciding the pecuniary jurisdiction of the consumer forum. He further stated

that total consideration including the basic price of the flat along with other charges comes to Rs.54,23,090/-. If we add the interest of Rs.28,50,402/-

and compensation of Rs.20,00,000/- plus cost of Rs.2,00,000/- it crosses the figure of rupees one crore and therefore, the complaint is maintainable

before this Commission.

I have given a thoughtful consideration to the arguments advanced by the learned counsel for the complainant and have examined the record. 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.â€​

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.47,09,139/- 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 promisedâ€. Thus, in case of refund of the amounts paid to the opposite parties/builder, there would only be the element of the “partly paidâ€

and the element of “promised to be paidâ€​ would be missing.

Thus, the consideration in a case of refund only means the amount paid and therefore, consideration paid in the above quoted observation of the larger

Bench of this Commission could be only the amount paid by the complainant to the opposite parties 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.

Based on the above consideration, it is clear that in the present case even if total amount of refund of Rs.47,09,139/- is taken into consideration

along with interest @18% p.a., the total figure does not cross the limit of Rupees One Crore. Moreover, the interest is also in the form of

compensation. Therefore, a huge compensation separately being demanded by the complainant has only been included in the prayer just to avail the

jurisdiction of this Commission. As interest at a very high rate is being considered to decide the jurisdiction, separate compensation cannot be added to

determine the pecuniary jurisdiction. Hence, this Commission does not have the pecuniary jurisdiction to entertain this complaint. It is also to be noted

that pendente lite or any further interest cannot be considered for deciding the pecuniary jurisdiction as there is no provision in this regard.

On the basis of the 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 spent during

the pendency of the complaint before this Commission shall not be counted for the purposes of limitation.