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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Ajit Bharihoke, Presiding Member
Ram Balakrishnan —Complainant
versus
Somitri Das —Opp. Party
Consumer Case No.23 of 2011
Decided on 24.5.2018
Counsel for the Parties:
For the Complainant:Ms. V. Mohana, Sr. Advocate Assisted by Mr. K. Muthu, Advocate
For the Opp. Party:Mr. Vineet Tayal, Advocate
IMPORTANT POINT
Consumer Protection Act do not make any distinction between buyers who are Indian citizens or NRIs.
Headnote:(A) Consumer Protection Act, 1986—Section 21—Real estate—Booking of Apartment by NRI—Denial of possession despite substantial payment—Complainant has prayed for refund of sum of Rs.78,48,940/- paid to opposite party against agreed consideration alongwith 18% interest thereon from the date of respective payment amounting to Rs. 45,03,491/-—If these figures are added up, value of complaint for the purpose of pecuniary jurisdiction being value of service plus compensation is much more than Rs.1.00 crore—Complaint is within pecuniary jurisdiction of this Commission. (Para 8)
(B) Consumer Protection Act, 1986—Section 2(1)(d)—Real estate—Booking of Apartment by NRI—Denial of possession despite substantial payment—Act do not make any distinction between buyers who are Indian citizens or NRIs—Merely because complainant is an NRI, it would not give rise to a presumption that he had booked subject apartment with intention to make profit by selling the same on a later date—Opposite party has not led any evidence to substantiate plea that complainant had booked flat with commercial intention to sell it at a higher rate—Till date possession of subject apartment has not been handed over to complainant despite of expiry of stipulated timeline—Opposite party has failed to fulfil his promise to deliver possession of subject flat within stipulated period and plea of Force Majeure is raised only in order to avoid liability for non-completion of construction—Opposite party guilty of deficiency in service—Taking into account deficiency in service committed by opposite party, reasonable compensation has to be awarded to complainant—Opposite party shall refund entire amount to complainant alongwith compensation of 10% simple interest—Opposite party shall pay a sum of Rs.10,000/- as cost of litigation to complainant. (Paras 9 to 13)
Result: Revision Petition dismissed.
Ajit Bharihoke, Presiding Member—Complainant Ram Balakrishnan is a Non Resident Indian settled in USA. The complainant on coming to know about development project undertaken by the opposite party approached the opposite party for booking of an apartment in the said project. The complainant vide letter dated 20.8.2007was allotted Flat No.8s LH-1004 on payment of Rs.24,53,940/-. The total consideration payable in respect of the said flat was Rs.98,13,760/-. The consideration amount as per the agreement was to be paid in construction link installments and the opposite party was supposed to deliver the possession of the subject apartment to the complainant within three years of the allotment with three months’ grace period, subject to force majeure. According to the complainant on getting the communications regarding the progress of the construction, the complainant kept on making payment of the installments and in all he has paid a sum of Rs.76,48,940/- against the consideration amount. The stipulated date for delivery of possession even after the grace period has long expired but the possession of the subject flat has not been delivered to the complainant. According to the complainant even the construction activity has not proceeded beyond the basic structure. The complainant, therefore, called upon the opposite party to cancel the contract and refund his money with interest. The opposite party, however, failed to oblige. Claiming this to be deficiency in service and unfair trade practice, the complainant raised a consumer dispute by approaching this Commission.
2. The opposite party on being served with the notice of the complaint filed written statement wherein a preliminary objection as to the pecuniary jurisdiction of the National Commission was raised. It was also pleaded that the complainant is not a consumer as envisaged under Section 2 (1) (d) of the Consumer Protection Act, 1986 because the complainant had booked the flat for making profit by selling the same after the completion of the project on appreciated price.
3. The opposite party has denied deficiency in service on its part and submitted that failure of opposite party to complete the construction and deliver possession of subject apartment to the complainant is due to force majeure circumstances, namely, the stay order against construction passed by Hon’ble High Court of Andhra Pradesh in writ petition No.17192/2007 and also interim stay orders against the opposite party from continuing with the construction by Andhra Pradesh Waqf Tribunal, Hyderabad in OS/99/2007 filed by Mehboob Alam Khan and one Ibrahim Bin Abdullah Masquati . It is also alleged that Dargah Committee also filed a suit against the opposite party company before the Andhra Pradesh Waqf Tribunal for recovery of the loan bearing survey No.201 of Manikonda Village on the basis of notification dated 6.4.2006 issued by the Waqf Board. In the said matter also the Waqt Tribunal passed an order dated 28th March, 2011 restraining the opposite party company from alienating of the property which was part of project site and that High Court of Andhra Pradesh vide its judgment dated 3rd April, 2012 upheld the restraint order passed by Waqf Tribunal dated 28th March, 2011. The said stay order was ultimately vacated by the Hon’ble Supreme Court vide its order dated 8.5.2012 in SLP (C) No.13954/2011. Thereafter, the respondent company has resumed the work at the project site.
4. Both the parties have filed affidavit evidence in support of their respective claims.
5. I have heard Ms. V. Mohana, Sr. Advocate on behalf of the complainant and Shri Vineet Tayal, Advocate for the opposite party and perused the record.
6. Learned counsel for the opposite party has taken me through Section 21 (a) (i) of the Consumer Protection Act, 1986 and submitted that instant complaint is not maintainable as it is not within the pecuniary jurisdiction of this Commission.
Section 21 (a) (i) of the Act provides as under:
21. Jurisdict
