VARUN GAMBHIR S/o. Shri Dinesh Gambhir vs M/S. UNITECH RELIABLE PROJECTS PVT. LTD.

Though the complainant has filed affidavit by way of evidence, the opposite party has not filed such an affidavit. The right of the OP to file its affidavit by way of evidence, therefore, stands closed. I have heard the learned counsel for the parties.

The complainant booked a residential flat with the opposite party in a project, namely, ''Unitech Verve'', which the opposite party was to develop on Plot No.11, Sector Pi-II of Greater Noida and an apartment No.1003 measuring 1588 sq.ft was allotted to him for a total consideration of Rs.58,84,804/-. As per clause 4(a) of the terms of allotment, the possession of the apartment was to be delivered within 36 months. The possession having not been given, the complainant is before this Commission seeking refund of the amount of Rs.53,07,180/- which he has paid to the opposite party along with compensation in the form of interest @ 18% per annum, besides compensation for mental agony and the cost of litigation.

The complaint has been opposed by the opposite party which has taken a preliminary objection that since the agreed sale consideration was less than Rs.1 crore, this Commission lacks pecuniary jurisdiction to entertain the complaint. On merits, the complaint has been resisted by the opposite party on the very same grounds which this Commission has already rejected in a number of consumer complaints including Consumer Complaint No.479 of 2015 -Alka Agrawal & Vani Rao Rangaraj Vs. Unitech Reliable Projects Pvt. Ltd. and connected matters decided on 16.9.2016 , CC No.708 of 2015 - Rama Sahdev Vs. Unitech Reliable Projects Pvt. Ltd. decided on 16.9.2016 and CC No.535 of 2015 - Ravi Marwah & Mrs. Aarty Marwah Vs. Unitech Reliable Projects Pvt. Ltd. and CC No.536 of 2015 - Amit Bhatia & Mrs. Bhawna Bhatia Vs. Unitech Reliable Projects Pvt. Ltd. decided on 20.5.2016. 3. The learned counsel for the OP submits that since the agreed sale consideration was only Rs.58,84,804/- the complaint ought to have been filed before the District Forum. She further submits that even if interest @ 10% per annum is added to the said amount, the resultant figure would be less than Rs.1 crore. However, I find no merit in this contention. The pecuniary jurisdiction is to be determined on the basis of the averments made in the complaint unless the claim is shown to be highly exaggerated and fanciful, made only with a view to bring the matter within the pecuniary jurisdiction of a particular forum. This Commission has, in the past, awarded compensation in the form of interest @ 18% per annum. Therefore, the claim for compensation in the form of interest @ 18% p.a., cannot be said to be highly exaggerated or fanciful so as to deserve outright rejection of the complaint. Therefore, it would be difficult to say that this Commission lacks the requisite pecuniary jurisdiction to entertain this complaint. The learned counsel for the complainant Mr. Kapil Kher states that even if compensation in the form of interest @ 10% per annum is added to the agreed sale consideration of Rs.58,84,804/-, the resultant figure would be more than Rs.1 crore.

The following was the view taken by this Commission in Ravi Marwah (supra) and Amit Bhatia (supra):

"4. The learned counsel for the complainants has drawn our attention of the decisions of this Commission in Dewan Ashwani & Ors. Vs. Unitech Reliable Projects Pvt. Ltd. Consumer Complaint No.282 of 2012 , wherein in a complaint relating to the booking made by the complainants in this very project i.e. Unitech Verve in Sector Pi-II of Greater Noida, this Commission, after rejecting all the contentions advanced by the opposite party, directed the opposite party to refund the amount paid by the complainant, along with interest @ 18% per annum from the date of receipt of the amount till realization. The complainants therein were also paid Rs. 1,00,000/- as compensation for the harassment and mental agony suffered by them at the hands of the opposite party. Being aggrieved form the aforesaid order passed by this Commission, the opposite party approached the Hon''ble Supreme Court by way of an appeal. Vide order dated 09.10.2015, the Hon''ble Supreme Court, on the reference of the learned Senior counsel appearing for the opposite party granted them leave to withdraw the said appeal with liberty to approach this Commission with some kind of proposal in terms of Clause 4(e)".

Since a decision rendered by a Coordinate Bench of this Commission, directing refund of the principal amount paid by the buyer, along with interest @ 18% per annum on that amount, has been accepted by the opposite party by withdrawing the appeal which it had preferred before the Hon''ble Supreme Court, the complainants, on the principle of parity, are entitled to an identical relief. Therefore, we need not independently examine the ground taken by the opposite party for resisting these complaints.

In Consumer Complaint No. 709 of 2015, Ankur Goel Vs. Unitech Reliable Projects Pvt. Ltd. relating to this very project and decided on 27.7.2016, some additional contentions were advanced by the opposite party and were rejected by this Commission, taking the following view:

The learned counsel for the complainants also relies upon the decision of the Hon''ble Supreme Court in Sudha Jain Vs. Chief Manager & Anr. [(2007) 5 SCC 717] . In Sudha Jain (supra), the State Commission directed return of the complaint for being filed before the District Forum, on the ground that the claim made in the complaint was exaggerated. The order of the State Commission was confirmed by this Commission in the revision petition. Setting aside the order passed by this Commission, the Hon''ble Supreme Court held as under:-

" As the amount claimed was Rs.68,51,321, which was within the jurisdiction of the State Commission and beyond the jurisdiction of the District Consumer forum. The State Commission was not justified in a returning the complaint. Accordingly, the civil appeal is allowed, impugned orders are set aside and the complaint is restored to its original file. Now, the State Commission shall dispose of the complaint in accordance with law after giving opportunity of hearing to the parties."

Reliance has also placed by the learned counsel for the complainants upon the decision of the Hon''ble Supreme Court in Charan Singh Vs. Healing Touch Hospital & Ors. [(2000) 7 SCC 668] , where the Hon''ble Supreme Court interalia observed as under:-

"It must be remembered that National Consumer Forum has jurisdiction, without pecuniary limitations, to award proper compensation, even less than the one claimed in a given case, depending upon the established facts and circumstances of that particular case and the evidence led by the parties. The District Commission and the State Commission, on the other hand, have pecuniary jurisdictional limitations for granting compensation beyond their jurisdictional limits. Under Section 11(1) of the Consumer Protection Act, 1986, the District Forum has jurisdiction to entertain complaints where the value of the goods or services and compensation, if any, claimed does not exceed Rs.5 lakhs. Section 17(a) of the Act provides that State Commission shall have jurisdiction to entertain complaints where the value of goods or services and compensation, if any, claimed exceeds Rs.5 lakhs, but does not exceed Rs.20 lakhs. In view of these jurisdictional limitations of the District Forum and the State Commission, these bodies would not be able to award compensation, even if satisfied in a given case that the complainant was entitled to more compensation than what he had claimed, beyond their pecuniary jurisdiction."

The learned counsel for the OP on the other hand refers to Nandita Bose Vs. Ratanlal Nahata [Civil Appeal No.1544 of 1987] decided on 4.8.1987 where the Hon''ble Supreme Court interalia observed and held as under:-

"The principles which regulate the pecuniary jurisdiction of civil courts are well settled. Ordinarily, the valuation of a suit depends upon the reliefs claimed therein and the plaintiff''s valuation in his plaint determines the Court in which it can be presented. It is also true that the plaintiff cannot invoke the jurisdiction of a court by either grossly over-valuing or grossly under-valuing a suit. The Court always has the jurisdiction to prevent the abuse of the process of law. Under rule 10 of Order 7 of the Code the plaint can be returned at any stage of the suit for presentation to the court in which the suit should have been instituted."

However, in the present case, considering the provisions contained in section 21 of the Consumer Protection Act when read with in the light of the decision of the Hon''ble Supreme Court in Ghaziabad Development Authority (supra), it cannot be said that the claim for payment of more than Rs.1 crore is deliberately exaggerated or inflated in order to bring the matter for pecuniary jurisdiction of this Commission and, therefore, amounts to abuse of the process of law. Therefore, the aforesaid decision does not help the opposite party.

In Ankur Goel (supra), this Commission considering its earlier decisions rendered hereinabove involving allotment of flat in this very project held that on the principle of parity alone, the complainants were entitled to identical reliefs and it would be neither necessary nor appropriate to examine afresh the issues involved in the said complaints. It was also held that if the decisions of this Commission rendered in Ravi Marwah (supra) are set aside or modified by the Hon''ble Supreme Court, before the order being passed in that complaint was complied, the view taken by the Hon''ble Supreme Court would apply to the said complaint as well.

Clause 4(e) of the terms of the allotment reads as under:-

"Default : If for any reason the Developer is not in a position to offer the Apartment altogether, the Developer shall offer the Allottee(s) an alternative property or refund the amount in full with Simple Interest @ 10% per annum without any further liability to pay damages or any other compensation on this account."

It would thus be seen that the opposite party is also under contractual obligation to pay interest @ 10% per annum in case it is not able to deliver possession of the flat within the time stipulated in the allotment letter.

The learned counsel for the complainant states on instructions from Mr. Dinesh Gambhir, father of the complainant who is present in the court that the complainant in order to avoid further litigation, in the matter is restricting his claim to the compensation in the form of interest @ 10% per annum as per clause 4(e) of the terms of allotment. In view of his statement, the complaint is disposed of with the following directions:-

(i) The opposite party shall refund the principal amount of Rs. Rs.58,84,804/- received from the complainant to him, along with compensation in the form of simple interest @ 10% per annum from the date of each payment till the date on which the principal amount, along with compensation in the form of interest in terms of this order is refunded;

(ii) The opposite party shall also pay Rs.10,000/- as the cost of litigation to the complainant;

(iii) The payment in terms of this order shall be made within three months from today.