BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 31ST MARCH 2016
PRESENT
SMT. ASHA SHETTY : HON BLE PRESIDENT
SMT.LAVANYA M. RAI : HON BLE MEMBER
COMMON ORDER IN
C.C.Nos. 126,127,128,129,134, 135/2015 AND 487/2014
CC.No.126/2015
(Admitted on 13.04.2015)
Mr. Arun M. Nikam,
Aged about 30 years,
S/o. Late Maruthi D.Nikam,
Residing at Sri. Rajalakshmi Jewelers,
City Market Building, Bhavanthi Street,
Mangalore. …… COMPLAINANT
CC.No.127/2015
(Admitted on 13.04.2015)
1. Mr. Rupert Fernandes
Aged about55 years,
S/o Mr. Anthony Fernandes,
2. Mrs. Victoria Fernandes,
Aged about 50 years,
W/o. Mr. Rupert Fernandes,
Both are residing at 201, Inland Windsor,
Airport Road, Bondel,
Mangalore 575 008. …… COMPLAINANT
CC.No.128//2015
(Admitted on 13.04.2015)
1. Mr. Trevor Ignatius sequeira,
Aged 59 years, S/o Mr. Herculano Sequeira,
2. Mrs. Jovita Marina Sequeira,
Aged about 58 years,
W/o Mr. Trevor Ignatius Sequeira,
Both are residing at Plot No. 93,
Sector 17, Koparkhairane,
New Mumbai 400 709. …… COMPLAINANT
CC.No.129/2015
(Admitted on 13.04.2015)
1. Mr. Harikishan,
Aged about 42 years,
S/o. Mr. K. Jayaram Shetty,
2. Mrs. Vridhima Shetty,
Aged about 32 years,
W/o. Mr. Hari Kishan,
Both are residing at Devi Darshan,
Kadri Temple Road,
Mangalore 2. …… COMPLAINANT
CC.No.134/2015
(Admitted on 20.04.2015)
Mr. Manoj Mascarenhas,
Aged about 40 years,
S/o. Mr. Gregory Mascarenhas,
Residing at Perpetual Paradise,
Spring Field Layout, Urva,
Chilimbi, Mangalore 575 006,
Rep. by his father & GPA holder
Mr. Gregory Mascarenhas. …… COMPLAINANT
CC.No.135/2015
(Admitted on 20.04.2015)
1. Mr. Manohar Steven Pinto,
Aged about 33 years,
S/o Mr. Charles Pinto.
2. Mrs. Monica Pinto,
Aged about 30 years,
W/o. Mr. Manohar Sten Pinto,
Both are residing at Perpetual paradise,
Spring Field Layout, Urva,
Chilimbi, Mangalore 575 006.
Both are represented by their GPA Holder Mr. Gregory Mascarenhas,
Father of No. 2 and
father.in.law of No. 1. …… COMPLAINANT
CC.No.487/2014
(Admitted on 27.12.2014)
Mr. Ajith Kumar Shetty,
Aged 62 years,
S/o. Late Mr. A.C. Shetty,
Residing at 415, 5th Block,
C wing Skyline City Apartment,
Chandra Lahout,
Bangalore 560 072. …… COMPLAINANT
(Advocate for complainant by Sri Krishna Prasad M.S.) (CC 126/15)
(Advocate for complainant by Sri Krishna Prasad M.S.) (CC 127/15)
(Advocate for complainant by Sri Krishna Prasad M.S.) (CC 128/15)
(Advocate for complainant by Sri Krishna Prasad M.S.) (CC 129/15)
(Advocate for complainant by Sri Krishna Prasad M.S.) (CC 134/15)
(Advocate for complainant by Sri Krishna Prasad M.S.) (CC 135/15)
(Advocate for complainant by Sri Krishna Prasad M.S.) (CC 487/14)
VERSUS
1. Mr. Suresh N. Mallya,
S/o Mr. M. Narayana Mallya,
Mahale Associates, 1st Floor,
Besant complex, M.G. Road,
Kodialbail, Mangalore-03, rep.by his G.P.A. Holder M/s. Skyline Construction 7 Housing Pvt. Ltd.
Having its regd. Office at No. 11,
Hayes Road, Bangalore 560 025,
Rep. by its Managing Director.
Mr. Avinash Prabhu.
2. M/s. Skyline constructions &
Housing Pvt. Ltd., having its regd.
Coofice at No. 11, Hayes Road,
Bangalore 560 025. Represented by
Mng Director Mr. Avinash Prabhu.
3. M/s. Eternity Developers Pvt. Ltd.,
Having its Registered office at No. 11,
Hayes Road, Bangalore 560 025,
Rep. by its Director Mr. Dhiraj Prabhu.
(In CC No. 126/15, 127/15 128/15, 129/15, 134/15, 135/15 and 487/14).
(Opposite Party No.1 & 2 Ex Parte)
(Advocate for Opposite party No. 3 by Sri Vikas Kumar) (CC 126/15)
ORDER DELIVERED BY HON’BLE PRESIDENT
SMT. ASHA SHETTY
I. 1. The above complaints are filed under Section 12 of the Consumer Protection Act alleging deficiency in service in housing construction against the common Opposite Parties claiming similar reliefs. In order to save the time as well as for the sake of convenience, we have taken up all the cases together and passed common order as under:
The brief facts of the case are as under:
1. The above complainants filed the above complaints against the opposite parties for deficiency in service in housing constructions. All the complainants in the above complaint stated that, they have entered into an agreement for purchase of residential apartment in the opposite parties project known as Sky Line Blue berry Hills II at Derebail village of Mangalore.
2. The complainants stated that the opposite parties agreed and undertaken to construct and sell the apartment in Sky Line Blue berry Hills II apartment condominium along with Car parking and various other common area facilities, club house multipurpose room, Gymnasium etc. As per agreement the opposite parties agreed and undertaken to construct, sell and deliver the residential apartments along with amenities and facilities described in the agreement on or before Dec 2010 with grace period of 6 months i.e. June 2011 for total sale consideration mentioned in the respective complaints. The complainant stated that, they have already paid agreed sale consideration and always ready and willing to pay the balance amount and obtained the sale deed and take delivery of the apartment provided the opposite parties kept the apartments ready for occupation with all legal permission certificates, documents, etc., But, the opposite parties not kept their promises and not completed the constructions inspite of repeated request and demands made by the complainants.
3. It is further stated that, there is no progress in the works, the plastering finishing and providing various amenities not yet commenced. The complainants have invested their hard eared money by availing bank loan. The complainants stated the opposite parties trying to make unlawfully gain and committed deficiency in service and hence the above complaints are filed under Section 12 of the Consumer Protection Act 1986 (herein after referred to as the Act) seeking direction from this Forum to the Opposite Parties to complete the apartment in all respects with all amenities, facilities with all statutory permissions, with ready for occupation condition and to deliver the apartments to the complainants as per the agreement referred above and to execute and register the sale deed by collecting balance amounts from the complainants within the time to be stipulated by the Hon’ble Forum or alternatively to pass an order directing the opposite parties jointly and severally to refund the entire amounts paid by the complainants with interest at 20% p.a. from the dates of payment till refund and also claimed Rs.5,00,000/ as compensation and costs of the proceedings.
II. Version notice served to the Opposite Parties No. 1 to 3 by RPAD. The opposite party No. 1 & 2 in spite of receiving notice not appeared nor represented case till this date. Hence opposite party No. 1 & 2 placed Exparte.
The Opposite Part No. 3 appeared through their counsel filed version stated that this FORA has no jurisdiction to entertain the complaint since there is a larger issues are involved. It is stated that, the subject matter of the complaints is more than Rs. 20,00,000/ as narrated in the complaint and this Fora has no pecuniary jurisdiction to entertain the complaint.
The opposite parties further stated that, opposite party No. 3 is the reputed builder and developer in line of construction and around state of Karnataka. The opposite parties has started constructing the apartments building and opened the bookings to the public at large. The complainant s booked one apartment each with the opposite parties. It is stated that the opposite party is facing the labor problem as well as non availability of the sand and other building materials therefore construction of the building is braked. It is stated that at present the work is going very fast and is about to finish the project. Once acquire the completion certificate from the Mangalore city corporation the opposite party will execute the sale deed without any delay.
It is further stated that, in the sale agreement there is arbitration clause. In the event of any dispute or difference arising between the parties which cannot be resolved amicably the party shall appoint an arbitrator one each of their choice and resolve the disputes in accordance with the Indian arbitration and conciliation act 1996. Even in this aspect this FORA has no jurisdiction and sought for dismissal of the complaint.
III. 1. In support of the above complaints, all the respective Complainants are examined as CW 1 and produced documents got marked under the Ex. C series. Opposite Party No. 3 filed counter affidavit and answered the interrogatories served on him. Both Parties produced notes of arguments along with citations.
In view of the above said facts, the points now that arise for our consideration in above complaints are as under:
Whether this FORA has pecuniary jurisdiction to entertain the complaint?
Whether the Complainant proves that the Opposite Parties committed deficiency in service?
If so, whether the Complainant is entitled for the reliefs claimed?
What order?
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before the Forum and answer the points are as follows
Point No.(i) Negative
Point No.(ii) to (iv) As per the final order.
Reasons
4. Point No. (i) to (iv):
The facts which are admitted is that the booking and payment of the sale consideration by the complainants to the opposite parties are not in dispute. But the opposite parties have raised question of pecuniary jurisdiction.
Now the 1st point arise for our consideration is that as per section 2 (1)(d) (ii) indicate that consumer means any person who hires or avails of any services for a consideration which has been paid or promised or under any system of deferred payment and includes any beneficiary of such service
Further section 2(1)(o) defines the meaning of service means service of any facilities in connection with banking financing, insurance transport, processing, supply of electrical or other energy, board or loading or both housing construction entertainment amusement or the purveying for news or other information So the complainants are comes under the definition of consumers. But in so for as the maintainability of complaint under the CP Act, we are of the view that under the agreement the opposite parties have undertaken to build apartments for the complainants and to hand over possession executing the sale deed. Since the opposite parties raised the pecuniary jurisdiction of this Fora, according to the opposite parties the sale consideration is in CC NO: 126/2015, 127/2015, 128/2015, 129/2015, 134/2015, 135/2015 and 487/2014 the complainants paid more than 20 Lakhs in each of the complaints. In all the cases the complainants claimed for relief of executing the sale deed that means physical possession of the apartments or refund of amount paid by them along with compensation and costs. However, which is exceeding the pecuniary jurisdiction. It is settled position that while considering the pecuniary jurisdiction the relief should not be more than Rs. 20,00,000/. For the purpose of determining pecuniary jurisdiction the value of the service/goods plus compensation and costs claimed by the complainants in each complaint should be taken into consideration for determining pecuniary jurisdiction of the consumer FORA. Ongoing through the each complaint the aggregate value of the relief claimed by the complainants in each complaints are more than Rs. 20,00,000/
In a case country Colonisers Pvt Ltd. V/s Priti Kapur and 2 others. In Revision petition No. 885/2012 (NC). Clearly held that value of the service /goods plus compensation and costs claimed by the each complainant should be taken into consideration. The principle of law was laid down in the above revision petition aptly applicable to the present case. In the present case the complainants mainly sought for possession of the apartment or refund of the amount, which is more than the Rs. 20,00,000/ To consider the pecuniary jurisdiction only amount of refund and compensation and litigation expenses should be considered and not the interest. Therefore this FORA has no pecuniary jurisdiction to entertain the complaints as stated supra.
In view of the above aforesaid reasons, the complaints filed by the complainants are hereby closed with liberty to approach proper jurisdiction.
In the result, we pass the following:
ORDER
The complaints are closed with liberty to approach proper jurisdictional authority. No order as to costs.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.
(Page No.1 to 12 dictate to the Stenographer typed by her, revised and pronounced in the open court on this the 31 day of MARCH 2016.)
PRESIDENT MEMBER
(SMT. ASHA SHETTY) (SMT. LAVANYA M.RAI)
D.K. District Consumer Forum D.K. District Consumer Forum
Mangalore. Mangalore.
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 Mr.Arun M. Nikam Complainant. (CC 126/15)
CW1 Mr.Rupert Fernades Complainant. (CC 127/15)
CW1 Mr.Mrs. Jovita Marina Sequeira Complainant. (CC 128/15)
CW1 Mr. Harikishan Complainant. (CC 129/15)
CW1 Mr. Manok Mascarenhas Complainant. (CC 134/15)
CW1 Mr.Manohar Mascarenhas Complainant. (CC 135/15)
CW1 Mr.Ajith Kumar Shetty Complainant (CC 487/14)
Witnesses examined on behalf of the opposite party:
RW1 Mr. Dhiraj Prabhu Opposite party (CC 126/15)
RW1 Mr. Dhiraj Prabhu Opposite party (CC 127/15)
RW1 Mr. Dhiraj Prabhu Opposite party (CC 128/15)
RW1 Mr. Dhiraj Prabhu Opposite party (CC 129/15)
RW1 Mr. Dhiraj Prabhu Opposite party (CC 134/15)
RW1 Mr.Dhiraj Prabhu Opposite party (CC 135/15)
RW1 Mr.Dhiraj Prabhu Opposite party (CC 487/14)
Documents produced on behalf of the Complainant:
in CC No. 126/2015.
Ex C1 04.02.2013 Copy of Sale Cum construction
Agreement.
Ex C2 Statement of account towards
Amount paid by the complainant to Opposite Parties.
Documents produced on behalf of the Complainant:
in CC No. 127/2015.
Ex C1 28.04.2009 Copy of Sale Cum construction
Agreement.
Ex C2 14.02.2014 Copy of Letter to Deputy
Commissioner.
Documents produced on behalf of the Complainant:
in CC No. 128/2015.
Ex C1 04.05.2009 Copy of Sale Cum construction
Agreement.
Ex C2 04.05.2009 Copy of Maintenance agreement.
Documents produced on behalf of the Complainant:
in CC No. 129/2015.
Ex C1 28.10.2009 Copy of Sale Cum construction
Agreement.
Ex C2 28.10.2009 Copy of Maintenance agreement.
Documents produced on behalf of the Complainant:
in CC No. 134/2015.
Ex C1 02.01.2010 Copy of Sale Cum construction
Agreement.
Ex C2 02.01.2010 Copy of Maintenance agreement.
Ex C3 02.05.2010 Copy of GPA.
Documents produced on behalf of the Complainant:
in CC No. 135/2015.
Ex C1 22.01.2010 Copy of Sale Cum construction
Agreement.
Ex C2 22.01.2010 Copy of Maintenance agreement.
Ex C3 29.04.2010 Copy of GPA issued by the
complainants.
Documents produced on behalf of the Complainant:
in CC No. 487/2014.
Ex C1 19.11.2012 Copy of Sale Cum construction
Agreement between Mr. Suresh N. Mallya and another in favour of Mr. Ajith Kumar Shetty.
Ex C2 19.11.2012 Copy of Maintenance agreement between M/s. Skyline property management services Private Ltd and Mr. Ajith Kumar Shetty.
Ex C3 05.11.2012 Copy of receipt for Eternity
Developers Pvt. Ltd.,
Ex C4 20.11.2012 Copy of receipt for Eternity
Developers Pvt. Ltd.,
Ex C5 – 23.01.2013 Copy of receipt for Eternity
Developers Pvt. Ltd.,
Ex C6 19.03.2013 Copy of receipt for Eternity
Developers Pvt. Ltd.,
Ex C7 19.03.2013: Copy of receipt for Eternity
Developers Pvt. Ltd.,
Ex C8 12.04.2013 Copy of receipt for Eternity
Developers Pvt. Ltd.,
Ex C9 – 12.04.2013 Copy of receipt for Eternity
Developers Pvt. Ltd.,
ExC10 21.06.2013 Copy of receipt for Eternity
Developers Pvt. Ltd.,
ExC11 21.06.2013 Copy of receipt for Eternity
Developers Pvt. Ltd.,
ExC12 24.07.2013 Copy of receipt for Eternity
Developers Pvt. Ltd.,
ExC13 24.07.2013 Copy of receipt for Eternity
Developers Pvt. Ltd.,
ExC14 11.11.2014: Copy of letter reply of Skyline
construction Pvt. Ltd.,
ExC15 04.11.2014 Copy of Director, Skyline
constructions and housing Pvt. Ltd., to the complainant.
ExC16 29.10.2014 Letter of the complainant to
Mr. Suresh N. Mallya and another.
ExC17 09.06.2014 Letter of complainant to the
Managing Dire tor, Eternity Developers Pvt. Ltd.,
ExC18 09.09.2014 Reply of Mr Suresh Mallya.
ExC19 12.03.2013 Letter of complainant to Eternity
Developers Pvt. Ltd.,
ExC20 12.03.2014 Letter of complainant to Eternity
Developers Pvt. Ltd
ExC21 18.02.2014 Letter of Eternity Developers to the
complainant.
Documents produced on behalf of the Opposite Parties:
In CC No. 126/2015, 127/2015, 128/2015, 129/2015, 134/2015, 135/2015, and.487/2014.
Nil.
Dated:31.03.2016 PRESIDENT
