Shri. Velankar – Representative for
the Complainants
Advocate Anand M. Chanodia
for the Opponent No.1
Advocate Sandeep Gujarathi for
Opponent Nos. 2 to 7
*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-**-
Per Hon’ble Shri. V. P. Utpat, President
Common Order below Interim Application filed by the Opponents
Order Date- 31/May/2013
[1] The Opponents in all the four proceedings are common and the subject matter of the original Complaints are similar the Opponents have filed Interim Applications for framing preliminary issue as regards jurisdiction and prayed for deciding these complaints on the basis of preliminary issue in all the four complaints. As the subject matter and parties in all four complaints are common it is convenient to dispose of all the four Complaints and interim applications by Common Order.
[2] These four complaints are filed by the flat purchasers against the Promoter and Builder for deficiency in service u/s 12 of the Consumer Protection Act, 1986. The complainants had agreed with the Opponent No.2 to purchase flats as described in the respective complaint. As the Opponent No.2 failed to execute Sale and Purchase Agreement, deliver possession of the flat and refund the money alternatively, the complaints have been filed for deficiency in service and the complainants have sought relief directing the Opponent No.2 to execute Sale and Purchase Agreement, restrain him from creating third party interest, and they have also asked compensation for deficiency in service.
[3] The Opponents filed written statements and also filed applications for framing preliminary issue and decide the complaints on the basis of preliminary issue of jurisdiction. According to the Opponents the cost of the flat is more than Rs.20,00,000/- as per Section 11 of the Consumer Protection Act, 1986 District Forum has jurisdiction to entertain and decide the complaints which are valued upto Rs.20,00,000/-. Hence this Forum has no jurisdiction to entertain the complaints and Opponents have prayed for return of complaints.
[4] The interim applications are opposed by the Complainants by filing written say. According to the complainants the jurisdiction u/s 11 of the Consumer Protection Act, 1986 is as regards value of goods and services with compensation. The value of services which are referred in the complaint as well as amount of compensation does not exceed Rs.20,00,000/- Hence this Forum has jurisdiction to entertain and try the present complaints. It is also contended by the complainants that as per Section 4 of the Maharashtra Ownership Flats Act, 1963 Opponent i.e. builder should execute agreement after accepting purchase money. As the Opponent No.2 had not executed the agreement that amounts to deficiency in service and that has no concern with the price of the flat. It is also contended that the amount which is accepted by the Opponent No.2 is less than Rs.20,00,000/- hence this Forum has pecuniary jurisdiction. The complainants have prayed for dismissal of the Applications.
[5] After scrutinizing the documentary evidence which is produced by the complainants and hearing the argument of both parties following points arise for my determination. The points, findings and the reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1 | Whether the valuation of the subject matter in the present proceedings is above Rs.20,00,000/- ? | In the affirmative |
2 | Whether this Forum has jurisdiction to entertain and try the present complaints ? | In the negative |
3 | What order ? | Complaints are returned to the complainants for presenting the same in proper Forum ? |
REASONS-
As to the Point Nos. 1 to 3 –
Admitted facts in all the four proceedings are that the price of each flat which is in dispute is more than Rs.20,00,000/-. The complainants have asked relief of execution of sale and purchase agreement from the Opponent No.2. Obviously the price of the flat is valuation of the subject matter i.e sale and purchase agreement. The complainant has to pay stamp duty, registration charges and other miscellaneous charges after considering the valuation of the subject matter i.e. flat in dispute. It is not much disputed that the valuation for the purpose of execution of sale and purchase agreement as well as possession of the flat is relating with the valuation of the subject matter i.e disputed flats. Eventhough u/s 4 of the Maharashtra Ownership Flats Act certain obligations are put on the Opponent i.e. builder promoter to execute the agreement and to deliver the possession. But these obligations cannot be enforced only by directing the Opponent in the form of Mandatory Injunction and in such circumstances the valuation of the present proceeding must be with relate to the relief of sale and purchase agreement as well as possession of the flat. As per section 11 of the Consumer Protection Act, 1986 disputes regarding valuation upto Rs.20,00,000/- only can be entertained by District Consumer Forum. Section 11 laid down as follows-
“Jurisdiction of the District Forum –
(1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed does not exceed rupees twenty lakhs.”
In such circumstances this Forum has no jurisdiction to entertain the present complaints.
As regards the pecuniary jurisdiction reliance can be placed upon the Judgment of the Hon’ble State Consumer Disputes Redressal Commission, Maharashtra reported in 2004(1) Bom. C.R. 551 between Krishna D. Singh vs. Pavan T. Punjabi & Ors. In that proceeding it has been observed that-
“The jurisdiction of Forum has to be determined on the basis of value of the subject matter of dispute and not by the result of the decree or award. For the purpose of valuation of dispute, reliefs claimed have to be considered in the context of averment in the complaint.”
In that proceeding the value of the flat was Rs.7,00,000/- and it was directed that the complaint should be instituted in the Court of lowest grade competent to try.
As regards the point of pecuniary jurisdiction the reliance can be also placed upon the Judgment of the Hon’ble State Consumer Disputes Redressal Commission, Maharashtra in complaint No. 08/159 between Mr. Jayesh G. Shah v/s. M/s. Anamika Real Estate Pvt. Ltd. Co. decided on 6/1/2012. That complaint was also relating to the deficiency in service on the part of the developer and builder for not handing over possession of the flat agreed to be purchased by the complainant. The complainant had valued that flat for Rs.1 Crore and asked further compensation of Rs. 5 lakh for mental agony and torture and also asked compensation @ Rs.25,000/- per month for delayed possession from the date of filing of complaint till possession is received. In that complaint it has been observed that the valuation of the flat as well as compensation and deficiency of service is more than one crore then the State Commission has no jurisdiction to entertain the said complaint and the complaint was returned to the complainant for presenting the same before the Hon’ble National Consumer Disputes Redressal Commission.
In the same context reliance can be placed upon the ruling of Hon’ble National Consumer Disputes Redressal Commission in case of Kishori Lal Bablani v/s. Aditya Enterprises & Ors. reported in (2012) CPJ 682 (NC). In that ruling it has been observed that the valuation of the flat which has been shown by the complainant is Rs.40,70,000/- hence the Hon’ble National Consumer Disputes Redressal Commission has no jurisdiction to entertain the said complaint and it should be presented before the State Commission and that complaint was returned to the complainant for presenting the same before the proper Forum.
After considering this legal preposition I held that District Consumer Disputes Redressal Forum has no jurisdiction to entertain the present complaint as the valuation of each flat is more than Rs.20,00,000/-. The complainants have asked relief of possession as well as execution of certain documents. The Complainants have not produced any legal preposition in order to rebut the settled legal position. Hence I held that the Interim Application filed by the Opponent in each complaint deserved to be allowed. I answer the points accordingly and pass the following order-
:- ORDER :-
1. Interim Applications as regards pecuniary jurisdiction of
the complaints filed by the Opponents in Complaint Nos. PDF/512/2011, PDF/132/2012, PDF/211/2012 and PDF/484/2012 are allowed.
2. It is hereby declared that this Forum has no pecuniary
jurisdiction to entertain the present complaints. Hence all
the four complaints are returned to the complainants for filing the same in proper Forum within one month from the date of Order.
3. As per peculiar circumstances parties to bear their own
cost.
4. Proceedings are closed.
Copy of order be supplied to both the parties free of cost.
