DLF Universal Ltd vs Tarun Aggarwal

This revision petition has been filed by the appellant, DLF Universal Ltd. against the order dated 21.08.2015 of the State Consumer Disputes

Redressal Commission, UT Chandigarh, (in short ‘the State Commission’) passed in Consumer Complaint No.121 of 2015.

Brief facts of the case are that the respondent filed a consumer complaint before the State Commission stating that the respondent/complainant

booked a plot vide application dated 29.03.2011 in the Project namely, Hyde Park Estate with the opposite party. Booking amount of Rs.12,00,000/-

was paid on 22.03.2011. Vide allotment letter dated 31.03.2011 the respondent was allotted a plot No.HPE-R2-F108 for a total consideration of

Rs.10,560,207.03. The respondent/complainant made a total payment of Rs.88,08,669/- in various installments to the appellants. Builder- buyer

agreement was signed on 25.07.2012. The appellant sent two notices for payment of remaining amount on 04.02.2013 and 19.11.2013. Aggrieved with

the action of the opposite parties/appellants, the respondent/complainant filed a consumer complaint bearing No.121 of 2014 before the State

Commission praying for refund of the amount paid along with interest. The complaint was resisted by the opposite parties by filing a written statement.

The State Commission after considering the submissions of both the parties allowed the complaint and passed the following orders on 21.08.2015:-

“31. For the reasons, recorded above, the complaint is partly accepted, with costs, and the opposite parties are liable and directed in the following

manner:-

(i) To refund the amount of Rs.88,08,669/- to the complainant, alongwith interest @9% per annum, from the respective dates of deposits, till

realization, within three months, from the date of receipt of a certified copy of this order.

(ii) To pay an amount of Rs.2,00,000/- (Rupees Two Lac only), to the complainant, as compensation for mental agony and physical harassment, within

a period of three months from the date of receipt of a certified copy of the order.

(iii) To pay cost of litigation, to the tune of Rs.20,000/-, to the complainant.

(iv) In case, the payment of amounts, mentioned in Clauses (i) and (ii), is not made, within the stipulated period, then the opposite parties, shall be liable

to pay the amount mentioned in Clause (i) above, with interest @ 12% per annum, instead of 9%per annum, from the respective dates of deposits, till

realization and amount mentioned in Clause (ii) above, interest @12% per annum from the date of default till realization, besides payment of costs, to

the tune of Rs.20,000/-.â€​

The present appeal has been preferred by the appellants/opposite parties. The notice was issued to the respondent/complainant and both parties

were heard. Learned counsel for the appellants stated that though she has many grounds to challenge the impugned order of the State Commission,

however, she will take up the ground that the State Commission did not have the pecuniary jurisdiction to deal with the complaint filed by the

complainant. The learned counsel requested that this issue be decided first and then the matter will be argued on merit. Accordingly, both parties were

heard on the aspect of pecuniary jurisdiction. Learned counsel for the appellants stated that the prayer in the complaint was for refund of the amount

deposited by the complainant, which was Rs.88,08,669/- along with interest 18% p.a. and a compensation of Rs.5,00,000/- along with cost of

Rs.1,00,000/- for litigation. Learned counsel for the appellants pointed out that the total consideration of the plot was Rs.10,560,207.03.

As per the judgment of the larger bench of this Commission passed in Consumer Case No.97 of 2016, Ambrish Kumar Shukla & Ors. Vs. Ferrous

Infrastructure Pvt. Ltd., decided on 07.10.2016 (NC) , it has become explicitly clear that total consideration is to be taken as the value of goods and

services for deciding the pecuniary jurisdiction. Learned counsel further pointed out that the appellants had clearly objected in para 2 of the preliminary

objections under the heading of Preliminary Objections in the written statement filed before the State Commission that the State Commission did not

have the pecuniary jurisdiction to deal with the complaint. Inspite of this, the State Commission has decided the complaint and has not considered this

objection. It is true that the order of the larger Bench in Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd. (supra) was not there

when the order of the State Commission was passed, however, even the total amount of refund of Rs.88,08,669/- along with interest @18% p.a. and

the compensation of Rs.5,00,000/- will exceed rupees one crore and therefore, even going by the earlier practice of valuating a complaint, the

complaint was not maintainable before the State Commission.

Learned counsel for the appellants further referred to judgment of the Bench of this Commission hearing the present appeal in the matter of FA

No.310 of 2017, M/s. Miridul Estate Pvt. ltd. Vs. M/s. DLF Ltd., decided on 10.08.2017 (NC) , wherein principle of deciding the pecuniary jurisdiction

of a consumer forum on the basis of the consideration amount of goods or services has been taken into account to decide the appeal.

Learned counsel for the appellants further stated that there is a delay of one day in filing the present appeal and the same may be condoned on the

ground given in the application for condonation of delay.

On the other hand, learned counsel for the respondent/complainant stated that the judgment of larger Bench in the matter of Ambrish Kumar Shukla

& Ors. Vs. Ferrous Infrastructure Pvt. Ltd. (supra) was not there when the order of the State Commission was passed. The learned counsel further

stated that interest was not to be added to decide the pecuniary jurisdiction as it was not considered as a part of compensation. There was the practice

in all the consumer fora not to consider the interest as part of compensation and not to consider this for deciding the pecuniary jurisdiction of the

consumer forum as held by the larger Bench of this Commission in Shahbad Cooperative Sugar Mills Vs. National Insurance Co. Ltd., II (2003) CPJ

81 (NC) . It was further argued that the larger bench dealing with Ambrish Kumar Shukla (supra) case has not considered and reviewed this decision

and it did not have the power to overrule this decision of another larger bench in Shahbad Cooperative Supgar Mills (supra). The learned counsel

consequently stated that the total amount of refund along with compensation demanded does not reach the figure of rupees one crore and therefore,

the State Commission had the pecuniary jurisdiction to decide this complaint. If it is held that the State Commission did not have the jurisdiction to

decide the present complaint, the matter may be called from the State Commission to this Commission as already matter had reached the stage of final

hearing because all the pleadings are already completed.

To support his view, learned counsel for the respondent referred to the judgment of National Commission in the case of CC No.198 of 2015,

Dushyant Kumar Gupta Vs. Today Homes & Infrastructure Private Limited, decided on 31.01.2017 (NC), wherein the following has been held:-

“ 12. Now I am coming to the complaints which do not come within the pecuniary jurisdiction of this Commission. The question which arises for

consideration as to what course of action should be adopted in respect of these complaints which have been pending with this Commission for the last

about 1½ years. One course can be to dismiss these complaints with liberty to such complainants to institute fresh complaints before the concerned

State Commission. The aforesaid course of action, in my view, would not be fair and reasonable, considering that the complaints are pending for about

1½ years and at one point of time, this Commission held the view that the market value of the flat as on the date of filing of the complaint could be

treated as the value of the service in such matters. In my view, the appropriate course of action in such matters would be to follow the procedure

prescribed in Order 7 Rule 10 A of the Code of Civil Procedure. Though, the aforesaid provision has not been expressly extended to this Commission

by Section 13 (4) of the Consumer Protection Act, the principle underlying the said provision can in appropriate cases, be adopted by this Commission,

in order to protect the interest of the consumers, while simultaneously ensuring that no prejudice is caused to the service provider by adopting such a

course of action.

The opposite party in these cases has filed its written version on the merits of the complaints. It has also led evidence on merits. No prejudice would

be caused to the opposite party if the complaints are returned for being presented before the concerned State Commission, with a direction to the

State Commission to decide them afresh, taking into consideration, the pleadings, affidavits and the evidence including documentary evidence filed by

the parties before this Commission provided an opportunity is given to the parties to lead additional evidence and if filed, such additional evidence is

also considered along with the evidence, which was filed before this Commission. The aforesaid course of action besides ensuring a prompt and

expeditious disposal of the complaints by a competent Consumer Forum will also ensure that no prejudice is caused to either party in any manner.â€​

It was further stated by the learned counsel for the respondent that there is delay in filing the present appeal. No proper reason has been given in

the delay condonation application. Special periods of limitation have been prescribed in the Consumer Protection Act, 1986 for speedy disposal of

consumer disputes as held by the Hon’ble Supreme Court in Anshul Aggarwal vs. New Okhla Industrial Development Authority, IV (2011) CPJ

63 (SC) wherein the Apex Court has laid down that;

“ It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the

special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the

object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the

orders of the consumer Foras .â€​

I have carefully considered the arguments of the learned counsel for both the parties and have examined the material on record. This is a case

where irrespective of the decision of the larger Bench in the matter of Ambrish Kumar Shukla & Ors. (supra), the value of the goods or service was

already more than Rupees one crore as the refund of paid amount of Rs.88,06,669/-along with interest of 9% p.a. was asked for in the complaint. As

the complaint has been filed on 08.06.2015, it means that by that time interest @ 9%p.a. had accumulated for three years and this amount comes to

Rs.23,76,00/-. Clearly the total figure of the principal amount paid along with interest becomes Rs.1,11,82,669/- and this amount exceeds Rupees one

crore. Though this Commission in Shahbad Cooperative Sugar Mills (supra) has taken a view that interest may not be counted towards the value of

goods and services in determining the pecuniary jurisdiction of consumer forum but after this decision, Hon’ble Supreme Court in G haziabad

Development Authority Vs. Balbir Singh (2004) 5 SCC 65 , inter alia observed and held as under:

“However, the power to and duty to award compensation does not mean that irrespective of facts of the case compensation can be awarded in all

matters at a uniform rate of 18% per annum. As seen above what is being awarded is compensation i.e. a recompense for the loss or injury. It

therefore necessarily has to be based on a finding of loss or injury and has to correlate with the amount of loss or injury. Thus the Forum or the

Commission must determine that there has been deficiency in service and/or misfeasance in public office which has resulted in loss or injury. No hard

and fast rule can be laid down, however a few examples would be where an allotment is made, price is received/paid but possession is not given

within the period set out in the brochure..... …Along with recompensing the loss the Commission/Forum may also compensate for harassment/injury

both mental and physical.

Similarly, compensation can be given if after allotment is made there has been cancellation of scheme without any justifiable cause. That

compensation cannot be uniform and can best of illustrated by considering cases where possession is being directed to be delivered and cases where

only monies are directed to be returned. In cases where possession is being directed to be delivered the compensation for harassment will necessarily

have to be less because in a way that party is being compensated by increase in the value of the property he is getting. But in cases where monies are

being simply returned then the party is suffering a loss inasmuch as he had deposited the money in the hope of getting a flat/plot. He is being deprived

of that flat/plot. He has been deprived of the benefit of escalation of the price of that flat/plot. Therefore the compensation in such cases would

necessarily have to be higher.â€​

After the above decision of the Hon’ble Supreme Court in Ghaziabad Development Authority (supra), this Commission has been taking a view

that interest is part of compensation and the same is required to be added for determining the pecuniary jurisdiction of the consumer fora and the same

stand has been reiterated by the larger Bench in Ambrish Kumar Shukla & Ors. (supra). Thus, it is an established view now that the interest is to be

considered as part of compensation. Accordingly, the same may be considered for deciding the pecuniary jurisdiction. In the present case, it is clear

that the original complaint was filed for a total amount of Rs.1,11,82,669/- as calculated earlier. Clearly the State Commission did not have the

jurisdiction to entertain this complaint. The objection was raised by the opposite party in the written statement with respect to the pecuniary jurisdiction

of the State Commission. However, the State Commission has not considered this objection and has not given any finding on the aspect of pecuniary

jurisdiction to decide the complaint in question. In such case, the order of the State Commission is without jurisdiction and cannot be sustained.

Based on the above discussion, the appeal is allowed and the impugned order dated 21.08.2015 is set aside on the ground that the State

Commission did not have the pecuniary jurisdiction to decide the instant complaint. Though the pleadings have already been completed before the

State Commission, however as sufficient time has elapsed and there may be new developments in the matter, I deem it appropriate to give liberty to

the complainant to file a fresh complaint before the appropriate forum and the time taken in the State Commission for deciding the appeal as well as

time taken by this Commission in deciding the present appeal shall not be taken into consideration for purposes of limitation.