Vineet Ganeriwala vs M/S. Unitech Limited

This complaint has been filed by Vineet Ganeriwala against the opposite party.

Complainant booked unit no.1103, Floor 11 Tower A2, Unitech south Park, Gurgaon, Haryana for a total consideration of Rs.94,61,600/- and the

complainant has paid Rs.30,23,200/-to the opposite party in installments. The delivery of flat was to be given within 36 months from the date of builder

buyer agreement which was signed on 25.8.2011. The possession has not been given so far. However the complainant does not want to proceed with

the possession of the flat due to various reasons. The complainant wants refund of the entire money paid by him along with 18 % interest p.a. from

date of payment till the date of refund. Aggrieved, the complainant has filed the present complaint.

The learned counsel for complainant was heard for admissibility and the record was perused.

It was stated by the learned counsel that the complainant had booked apartment with the opposite party for a total consideration of Rs.94,61,600/-

and various installments were paid to a total amount of Rs.30,23,200/- since 2011 onwards. As the construction did not proceed, Opposite party failed

to deliver possession in time. Complainant does not want to pursue with the possession as his money would be blocked for many years. In these

circumstances he is 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 97of 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 along with compensation demanded is to be taken into consideration for deciding the pecuniary

jurisdiction of the consumer forum.

The learned counsel further pointed out that interest is a part of the compensation and amount of interest on the paid amount @18% p.a. comes to

about Rs.24,89,685/-. Thus, the total consideration of the flat along with the interest itself becomes more than rupees one crore and therefore, this

commission will have jurisdiction to decide the present complaint. The learned counsel further stated that this view point has been followed by this

Commission in Dushyant Kumar Gupta Vs. Today Homes & Infrastructure Private Limited., CC No.198 of 2015, decided on 31.01.2017 (NC) and

this judgment has been delivered after the judgment of the decision of the larger bench in Ambrish Kumar Shukla and others (supra) case. This view

needs to be accepted in the present case as well.

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. Direct the O.P. to refund the entire amount collected from the complainants towards the consideration of the house along with interest @18%

p.a. on the amount paid by them from the date of collection of the amounts till it is actually returned to the complaints.

b. Direct the O.P. to pay a sum of Rs.5,00,000/- (Rs. Five lakhs only) towards mental agony and harassment and towards cost of litigation to the

complainants.

c. Any other order (s) as may be deemed fit and appropriate may also kindly be passed.â€​

It is clear that the main request is for refund of the deposited amount of Rs.30,23,200 with 18% interest p.a. Apart from this the complainant has

also requested a sum of Rs.5,00,000/- towards mental agony and harassment and towards cost of litigation. The section 21(a)(i) of the Consumer

Protection Act ,1986 reads as under:-

“21 Jurisdiction of the national commission â€"Subject to the other provisions of this Act , the National commission shall have jurisdiction â€

(a)to entertain â€

(i) complaints where the value of goods or services and compensation , if any claimed, exceed {rupees one crore}â€​

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.30,23,200/- 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 party/builder, there would only be the element of “partly paid†and

the element of “promised to be paidâ€​ 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) could 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.

Based on the above consideration, it is clear that in the present case even if total refund of Rs.30,23,200/- is taken into consideration along with

interest @18% p.a. and compensation demanded, 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.

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 consumer complaint before the concerned State Commission, which shall decide the complaint on merits. The time consumed

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