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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
V.K. Jain, Presiding Member
Amitava Shankar Guha and Ors. —Complainants
versus
Emaar Mgf Land Ltd. —Opp. Party
Consumer Case Nos.1712 of 2017, 1713 of 2017, 1715 of 2017, 1716 of 2017, 1720 of 2017, 1721 of 2017, 1723 of 2017, 1726 of 2017, 1729 of 2017, 1730 of 2017, 1732 of 2017, 1733 of 2017, 1734 of 2017, 1736 of 2017, 1737 of 2017, 1739 of 2017, 1740 of 2017, 1741 of 2017 and 1742 of 2017
Decided on 23.4.2019
For the Complainants:Mr. Saurabh Jain, Advocate
For the Opp. Party:Mr. Rabin Majumder, Advocate
For the Opp. Party in CC/1740/17:Mr. Sanchar Anand and Mr. Apoorv Singhal, Advocates
IMPORTANT POINTS
1. VAT and Service Tax can be added to the value of service for the purpose of pecuniary jurisdiction.
2. Compensation for pecuniary jurisdiction does not mean only “contractual” agreed compensation.
3. Loss or injury can be presumed for deprivation of one’s own house.
Headnote:Consumer Protection Act, 1986 – Section 21(a)(i) – Real Estate-residential flats – Builder Buyer Agreement-In spite of substantial payments made, no possession was offered – Hence, complaint. Defence of the OP is about the grounds stated in CC No. 34 of 2015, Jivitesh Nayal & Anr. Vs. M/s. Emaar MGF Land Ltd. & connected matters, and rejected in that case. Hence, the same cannot be agitated again.
Held, This Commission has in the past granted compensation in the form of interest paid Rs.18% per annum in the cases where refund has been allowed and compensation in the form of interest @ 12% per annum in the cases where possession of the house/plot hasbeen directed. Therefore, a claim for refund by adding the agreed sale consideration to compensation in the form of simple interest @ 18% per annum from the date of each payment till the date of filing of the complaint cannot be said to be highly exaggerated or fanciful and made only with a view to invoke the jurisdiction of this Commission, even if this Commission eventually grants a lesser compensation to the complainant. Similarly, where the complainant seeking only the possession of the house but there is no prayer for refund of the payment made by him to the builder, the value arrived it by adding the agreed sale consideration to the compensation in the form of interest @ 12% p.a. from the committed date of possession till the date of filing of the complaint would be maintainable before this Commission if the said claim comes to more than Rs.1 crore. (Para 5)
Further held, In a complaint where the complainant makes alternative prayers, one for possession of the house allotted / plot to him and the other for refund of the amount paid by him to the developer along with compensation, this Commission would have pecuniary jurisdiction to entertain the complaint where either the relief of possession or the relief of refund, alongwith the compensation as calculated in terms of para-5 hereinabove falls within the pecuniary jurisdiction of this Commission. Since in such a case, the State Commission will not have the requisite pecuniary jurisdiction to grant one of the alternative reliefs claimed in the complaint, the complainant cannot be asked to approach the said Commission. (Para 6)
Result: Complaints allowed with various directions.
V.K. Jain, Presiding Member—The complainants in these matters are allottees of residential flats in a project namely “Emerald Floors Premier” at Emerald Hills, which the opposite party was to construct on the land comprised in Village Maidawas, Sector 65 of Gurgaon. The following are the particulars provided by the complainants giving the details of the flats allotted to them, the date on which Builder Buyer Agreements were executed, the sale consideration agreed between the parties and the payment made so far to the Opp. Party:—
S. No. CC No. Name of Complainants Date of Allotment Date of execution of BBA Cost of Floor Amount Paid 1. 1712/2017 Amitava Shankar Guha 21.12.2009 09.02.2010 71,31,350.00 62,56,044.00 2. 1713/2017 Amit Thusu 31.10.2009 06.01.2010 71,65,657.00 68,24,172.00 3. 1715/2017 Rajit Kohy Mammen & Smt. Jinsy Koshy 29.10.2009 02.01.2010 74,47,372.00 64,10,920.00 4. 1716/2017 Smt. Purnima Bhatnagar & Anubhav Dayal Bhatnagar 26.12.2011 20.02.2010 & 26.12.2011(endorsed) 99,54,709.00 91,53,575.00 5. 1720/2017 Vishal Mittal 31.10.2009 14.01.2010 72,65,643.00 71,64,570.00 6. 1721/2017 Amrita Randhawa & Vishal Madan 09.11.2009 20.01.2010 88,07,738.75 77,90,275.00 7. 1723/2017 Ashish Kumar Khullar & Aarti Sharma 31.10.2009 08.01.2010 97,46,031.00 85,05,428.00 8. 1726/2017 Sharad Sinha & Basant Kumar Sinha & Ms.Seema Sinha 18.12.2009 14.01.2010 71,68,124.00 54,40,679.00 9. 1729/2017 Narsh Chander & Smt. Anita Chander 16.11.2009 04.02.2010 72,47,514.00 62,05,582.00 10. 1730/2017 Smt. Enakshi Ganguly Thukral & Kishore Thukral 19.11.2009 20.02.2010 79,21,447.00 75,15,088.00 11. 1732/2017 Smt Premlata Dang & Shyam Sunder Dang 28.10.2009 27.01.2010 69,56,350.00 62,10,656.00 12. 1733/2017 Sandeep Mathur & Smt. Vandana Mathur 29.10.2009 20.01.2010 84,49,416.00 63,81,735.00 13. 1734/2017 Vineet Dewan & Smt. Amriti Dewan 05.12.2009 20.02.2010 85,04,897.00 71,98,373.00 14. 1736/2017 Ravi Jethani & Durga Jethani 31.10.2009 20.02.2010 73,10,863.00 65,01,859.00 15. 1737/2017 Smt. Bela kapoor & Sameer Kapoor & Tanay Manohar Kapoor 25.11.2009 20.02.2010 78,24,250.00 71,77,845.00 16. 1739/2017 Gaurav Bajaj & Smt. Manju Bajaj 22.06.2012 18.07.2012 1,57,24,337.00 1,40,29,263.00 17. 1740/2017 Rakesh Kumar & Smt. Rashmi Sharma 13.09.2011 15.03.2012 1,50,16,348.00 1,10,87,665.00 18. 1741/2017 Vijay Plaha & Smt. Nirja Plaha 23.12.2009 20.01.2010 98,87,968.00 86,22,775.00 19. 1742/2017 Sunil Mittal & Smt. Alka Mittal 31.10.2009 18.01.2010 75,06,254.00 64,10,915.00
2. As per Clause 13(a) of the BBA, the opposite party proposed to hand over possession within 24 months in C.C. No. 1740/2017 and 36 months in C.C. Nos. 1712/2017, 1713/2017, 1715/2017, 1716/2017, 1720/2017, 1721/2017, 1723/2017, 1726/2017, 1729/2017, 1730/2017, 1732/2017, 1733/2017, 1734/2017, 1736/2017, 1737/2017, 1739/2017, 1741/2017 and 1742/2017, from the execution of the said agreement though it was entitled to a grace period of three months for the limited purpose of applying and obtaining the occupancy certificate. The case of the complainants is that the possession of the flat has not been offered to them despite they having paid major part of the sale consideration to the opposite party as and when demanded from them. The complainants are therefore before this Commission by way of these complaints, seeking possession of their respective flats complete in all respects alongwith compensation
3. The complaints have been resisted by the opposite party on several grounds but, those grounds are stated to have already been considered and rejected in CC No. 34 of 2015 Jivitesh Nayal & Anr. Vs. M/s. Emaar MGF Land Ltd. & conn
