IMPORTANT POINT
When the builder fails to adhere to the terms of the agreement, he is liable to refund the amount received.

This Consumer Complaint has been filed by the complainant Atma Krishna against the Opposite Parties, Orris Infrastructure Pvt. Ltd. and another. It has been alleged in the complaint that an allotment letter dated 9.8.2012 was issued in the name of M/s. Karamchand Realtech Pvt. Ltd. by OP-1. The complainant purchased apartment from earlier allottee. The possession was to be handed over in 36 months with a grace period of six months. As per clause 11(i) of this allotment letter, the payment plan attached with this allotment letter has also been signed by OP-1. The apartment buyer agreement was signed on 4.7.2013 and as per clause 5 of the apartment buyer agreement, the possession was to be given within 36 months with a grace period of 6 months from the date of allotment of the apartment. Accordingly, the possession was to be given by February, 2016. However, the possession has not been handed over to the complainant as the building itself is not complete. Accordingly, the complaint has been filed for refund of the paid amount. The total consideration of the flat has been stated to be Rs.1,09,15,227/- and the complainant has paid an amount of Rs.63,05,205.66.

2. The complaint was resisted by filing the written statement by the OPs. Both the parties filed affidavit evidence in the matter. Heard the learned counsel for the parties and perused the record.

3. Learned counsel for the complainant stated that as per the possession clause 5 of the apartment buyer agreement, the possession was to be handed over within 36 months with a grace period of six months from the date of allotment and the allotment is dated 9.8.2012. Accordingly, the possession was due in February, 2016. The OPs have not offered the possession so far. Therefore, the request for refund has been made. Vide letter dated 30.1.2013, the OP-1 had promised that the possession will soon be handed over and all common amenities of the project alongwith the facilities will be completed by 2014. The complainant has paid a sum of Rs.63,05,205.66 and this amount is reflected in the statement of account dated 2.8.2016.

4. The learned counsel for the complainant stated that an objection has been taken by the OPs that this Commission does not have the pecuniary jurisdiction to decide the present complaint as the amount of refund is only Rs.63,05,205.66 and even with interest @ 18% p.a. it will not reach to the figure of Rs.1 crore. In this regard, the learned counsel contended that as per the calculation submitted by the OP no.1, the amount of refund alongwith 18% p.a. interest upto the date of filing of the complaint has been stated to be Rs.92,59,592.66. The learned counsel also stated that if the interest is calculated upto 10.10.2017, the refund amount alongwith 18% p.a. interest comes to Rs.1,04,29,508/-. It was argued by learned counsel that a compensation of Rs.15 lakhs has also been sought as relief in the complaint. Hence, even if the calculation of the OP no.1 is taken into account, the figure crosses to more than Rs.1 crore if the compensation of Rs.15 lakhs is included and the amount is required to be included as per Section 21(a)(i) of the Consumer Protection Act, 1986. Moreover, it was further argued that in the light of the decision of the larger bench of this Commission in Ambrish Kumar Shukla & Ors. vs. Ferrous Infrastructure Pvt. Ltd., Consumer Complaint No.97 of 2016 decided on 7.10.2016, the total consideration alongwith compensation claimed is to be considered for deciding the pecuniary jurisdiction of the Consumer Forum. In the present case, the total consideration is more than Rs.1 crore and therefore, this complaint is very much maintainable before this Commission. It was further stated by learned counsel that even if only the amount of refund is considered alongwith interest upto filing of the complaint, the amount reaches to Rs.92,59,592.66 and if the complaint is rejected on this ground, the complaint will have to be filed before the State Commissio