DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

Consumer Complaint No.626 of 2016

                                                            Date of institution:  21.09.2016                                                      Date of decision   :  11.05.2018

Chander Mohan Dhiman son of Shri Dhanpat Ram, resident of 5496/II, Modern Housing Complex, Mani Majra, Chandigarh.

…….Complainant

Versus

1.     The Aakash Cooperative House Building Society Ltd., SCO 672, Sector 70, Mohali through its Director/President/ Chairman/Partner/Authorised Signatory.

2.     Preet Land Promoters & Developers Private Ltd.,  Regd. Office, SCO 672, Sector 70, SAS Nagar, Mohali through its Director/ President/Chairman/Partner/Authorised Signatory.

3.     Preet Land Promoters & Developers Private Ltd., Site Office, Sector 86, Adjacent to Sector 79, SAS Nagar, Mohali through its Director/President/ Chairman/Partner/Authorised Signatory.

……..Opposite Parties

Complaint under Section 12 of

the Consumer Protection Act.

Quorum:    Shri G.K. Dhir, President,

                Shri Amrinder Singh Sidhu, Member.

                Mrs. Natasha Chopra, Member.

Present:     Shri Munish Goel, counsel for the complainant.

                Shri Gurinder Singh, counsel for OP No.1.

                Shri K.S. Lang, counsel for OP No.2 and 3.

Order by :-  Shri G.K. Dhir, President.

Order

               Complainant deposited a total sum of Rs.5,80,110/- in all till September, 2005 through different receipts/cheques for purchase of residential plot with OP No.1, but after becoming member thereof. Certificate of registration dated 21.09.2005 was issued in favour of complainant by OP No.1. Complainant received letter dated 09.03.2006 from OP No.1 for getting information that Govt. has accorded approval to the Mega Housing Project of Preet Land Promoters and Developers Pvt. Ltd. on 27.01.2006. Merger of OP No.1 society took place with OP No.2 and OP No.3. Rs.47,550/- more were deposited by complainant on 17.03.2006. After receipt of letter dated 14.10.2006, balance amount of Rs.38,150/- more was deposited  by complainant through cheque dated 25.10.2006. Amount of Rs.6,65,810/- was deposited by complainant as land cost alongwith EDC, license fee and land conversion charges. On visit by complainant to office of OP No.2, he got knowledge as if Bhoomi Pujan of Preet City Sector 86, Mohali would be done by Hon’ble Chief Minister of Punjab on 08.09.2008. Thereafter, complainant did not hear anything from OPs till  June 2010.  A letter dated 26.06.2010 was received from OP No.1, where through demand of Rs.2,89,300/- was put forth and that amount was deposited on 19.07.2010. As per Clause-6 of allotment letter dated 11.09.2010, possession was to be delivered at the site after development of the whole sector approximately within 2-3 years. So virtually assurance for delivery of physical possession was given by fixing the date as 11.09.2012 or maximum by 11.09.2013.  Development charges of Rs.2,50,000/-  more paid by complainant to OP No.2 on 20.02.2012 rendering the total payment as Rs.12,05,110/- by that date. OP No.1 failed to provide the plot of 10 marlas. When complainant met Mr. Charan Singh, Director of OP No.2 on 26.03.2015, then he got information as if the land available with OP No.2 had already been allotted to other members and no plot is left. Letter dated 06.04.2015 was sent by complainant to OP No.2. As neither the physical possession of the plot offered and nor refund of the paid amount has taken place, despite issue of allotment letter dated 06.04.2015 and as such complaint filed for seeking direction to OPs to refund Rs.12,05,110/- with interest @ 24% from the date of deposit till payment. Rs.7,50,000/-  claimed on account of deficiency in service and unfair trade practice resulting in mental tension and harassment as well as agony of complainant. Rs.33,000/- more claimed as costs of litigation.

2.             OP No.1 filed reply by pleading inter alia as if complaint is not maintainable in the present form before this Forum; complainant has not approached the Forum with clean hands because he has concealed true facts; complaint filed just for harassing OP No.1 despite the fact that no cause of action accrued against OP No.1. Besides, it is claimed that complainant has no locus standi because the complaint filed on basis of misrepresentation, non joiner and misjoinder of proper parties. As per contents of complaint, share upto 10 marlas of land/plot in the society allotted to complainant. From the contents of complaint it is made out as if this Forum has no jurisdiction to hear and adjudicate upon the present complaint because complaint is alleged to be without jurisdiction. Admittedly complainant applied for plot with OP No.1 and that the amount of Rs.4,80,000/- had been paid to OP No.1. Matter regarding other payments alleged to be a matter of record. Admittedly OP No.1 entered into an agreement with OP No.2 for development of land and allotment of residential plot to its members. No allotment letter issued by OP No.1 and as such alleged terms and conditions of allotment letter not binding on OP No.1. Admittedly complainant paid the land cost and other charges. Other averments of the complaint denied either for want of knowledge or otherwise.

3.             In joint reply filed by OP No.2 and 3, it is pleaded as if the complaint before Hon’ble State Commission is not maintainable; complaint barred by limitation; no cause of action accrued in favour of complainant and complainant has no locus standi to file the complaint. Concealment of true facts also alleged for claiming that complaint has been filed for harassing the OPs. Admittedly OP No.1 society authorised OP No.2 and 3 to develop the land of the society. If land is less than purchase for members of society, then fault alleged to be not of OP No.2 and 3. Allotment letter dated 11.09.2010 was issued by OP No.2 and 3 and not by OP No.1. Upon request of complainant, OP No.2 and 3 cancelled the allotment letter dated 11.09.2010. On request of complainant, plot number was changed and new allotment letter dated 06.04.2015 was issued. In allotment letter dated 11.09.2010 it was clearly mentioned that balance amount of development charges of the plot will be paid in three equal half yearly installments. However, as per that allotment letter, allottees shall be offered possession of the site after development of the whole sector, which may take approximately 2/3 years. Sewerage, water pipes, electricity lines are already lying in sector of OPs. Development of sector alleged to be in full swing.  Terms and conditions of cancelled allotment letter dated 11.09.2010 as such are alleged to be not applicable against issue of fresh allotment letter dated 06.04.2015. Other averments of reply need not be mentioned in detail because crucial question remains as to the pecuniary jurisdiction of this Forum.

4.             Complainant to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.C-18 and thereafter his counsel closed evidence. On the other hand, counsel for OP No.1 tendered in evidence affidavit Ex.OP-1/1 of Shri Balbir Singh authorised person of OP No.1 alongwith documents Ex.OP-1 to Ex.OP-7 and thereafter closed evidence.   Counsel for OP No.2 and 3 tendered in evidence affidavit Ex.OP-2/1 of Charan Singh, Director and documents Ex.OP-8 to Ex.OP-12 and then closed evidence.

5.             Written arguments in this case submitted by complainant as well as by OPs. Oral arguments heard and records gone through.

6.             During course of arguments Shri Gurinder Singh, counsel for OP No.1 and Shri K.S. Lang, counsel for OP No.2 and 3 contended that as the relief claimed is of more than Rs.20.00 lakhs and as such this Forum has no pecuniary jurisdiction. However, Shri Munish Goel, counsel for complainant contends that objection regarding pecuniary jurisdiction of the Forum had not been taken in the written replies or in the submitted affidavits and nor separate application for raising this objection has been filed. However, after going through Para No.1 and 7 under heading “preliminary objections” of written statement filed by OP No.1, it is made out as if objection is raised that complaint not maintainable before this Forum in present form and that this Forum has no jurisdiction because of claimed share of complainant upto 10 marls of land/plot in the society. So in view of this, submission advanced by Shri Gurinder Singh, counsel for OP No.1 certainly has force that objection regarding jurisdiction of this Forum had already been taken. Even if specific objection regarding want of pecuniary jurisdiction of this Forum is not raised, despite that in so many words objection is raised to the effect that this Forum has no jurisdiction to hear and adjudicate the complaint. Whenever issue of jurisdiction is raised, then this means the same taken not only with regard to pecuniary jurisdiction, but even regarding territorial jurisdiction also. Even through written arguments submitted by counsel for OP No.1, same objection vehemently raised.

7.             As per law laid down in case of Bishwanath Choudhary Vs. Dr. Anand Gautam Das Gupta, 2016(1) CPJ 17 (Hon’ble Jharkhand State Consumer Disputes Redressal Commission, Ranchi), in view of Section 15 of Consumer Protection Act, 1986, question of pecuniary jurisdiction to be decided on the basis of claim made and not on the basis of relief granted. Same is the pr0position of law laid down by Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case Ambrish Kumar Shukla & 21 Ors Vs. Ferrous Infrastructure Pvt. Ltd. 2016(4) CPR 83. View taken in this case further reiterated by Hon’ble National Consumer Disputes Redressal Commission, New Delhi in First Appeal No.1364 of 2017 titled as M/s. Omaxe Chandigarh Extension Developers Pvt. Ltd. & 2 others Vs. Lalitha Saini,  decided on 21.08.2017. Rather in this latest mentioned case of M/s. Omaxe Chandigarh Extension Developers Pvt. Ltd. & 2 others (supra) it has been specifically held that the decision rendered by larger bench of Hon’ble National Commission in case of Ambrish Kumar Shukla & 21 Ors Vs. Ferrous Infrastructure Pvt. Ltd (supra)  is binding not only on the Fora below, but even on the other benches of Hon’ble National Commission, unless the same happens to be  a decision rendered by the larger bench than that of the one decided in case of Ambrish Kumar Shukla & 21 Ors Vs. Ferrous Infrastructure Pvt. Ltd  (ibid). So this Forum is bound by decision of Hon’ble National Commission and as such it has to be ascertained as to whether really this Forum has pecuniary jurisdiction to decide this complaint or not. Even if objection regarding pecuniary jurisdiction not raised in the written statement submitted by OPs, despite that it is the duty of this Forum to ascertain as to whether it has pecuniary jurisdiction or not because the judgment rendered without jurisdiction is a nullity in the eyes of law.

8.             In case of Gurbax Singh Bains Vs. M/s. Omaxe Chandigarh and another, 2014(3) CPC 390 (NC) it has been held that if the total value of the claim relief exceeds limit of Rs.20.00 lakhs including the amount of claimed compensation, then the District Forum lacks pecuniary jurisdiction. Same is the position in the case before us because here the value of claimed relief is Rs.12,05,110/- alongwith interest @ 24% from the date of deposit till payment  plus the claimed compensation amount of Rs.7,50,000/- plus Rs.33,000/- as cost of litigation. So even if interest part is excluded, the valuation of the claimed reliefs in aggregate comes to Rs. 19,88,110/- As per claim put forth in para No.7 of the complaint, complainant deposited Rs.6,65,810/- with OP No.1 until 30.10.2006 and if the amount taken into consideration along with pointed out date of deposit, then certainly interest on this amount @ 24% is claimed uptill filing of complaint namely 21.09.2016 for period of 8 years and 11 months atleast. Interest for one year on amount of Rs. 6,65,000/-, if calculated @ 24% per annum will come to Rs.1,59,600/-.  So virtually for period of eight years the interest on this amount of Rs.6,65,810/- will come to Rs.12,76,800/-, leaving aside amounts of other deposits. Aggregate of reliefs claimed in this way will go beyond the amount of Rs.32.00 lacs. So certainly the aggregate of the reliefs claimed including that of compensation amount and interest amount goes beyond the pecuniary limit jurisdiction of this Forum. It is the aggregate value of the goods purchased or the services hired or availed by the consumer plus the amount of claimed interest and the compensation amount, which are to be taken together for determining the pecuniary jurisdiction of this Forum, is the crux of law laid down in case of Ambrish Kumar Shukla & 21 Ors Vs. Ferrous Infrastructure Pvt. Ltd  (ibid)  and also in case of M/s. Omaxe Chandigarh Extension Developers Pvt. Ltd. & 2 others Vs. Lalitha Saini (supra). So virtually the claimed reliefs through this complaint go beyond the pecuniary jurisdiction limit of this Forum. Even in case of Kumari Lama versus General Manager ICICI Bank Ltd., 2014 (74) RCR (Civil)748, it has been held that aggregate of the reliefs claimed including that of refund amount, claimed compensation amount and interest to be taken into consideration for finding the pecuniary jurisdiction. In this case it has been specifically mentioned that if the District Forum has no pecuniary jurisdiction, then order passed by the Forum will be perverse in the eyes of law and the same being illegal, liable to be set aside.   

9.            Counsel for complainant vehemently argued that Hon’ble Punjab State Consumer Disputes Redressal Commission, Chandigarh in Consumer Complaint No.467 of 2017 titled as Sanjeev Sharma Vs. M/s. ATS Estates Private Limited decided on 10.11.2017 has specifically held that if the question of pecuniary jurisdiction not addressed at the earliest possible opportunity, then the said objection cannot be raised at the arguments stage and as such the objection regarding pecuniary jurisdiction at the stage of final argument cannot be taken into consideration. In this cited case, objection regarding pecuniary jurisdiction was not raised before leading the evidence by the parties, but here in this case before us the objection regarding jurisdiction of this Forum has been taken in the written reply submitted by OP No.1 and also in the written reply submitted by OP No.2 and 3 each, albeit not of pecuniary jurisdiction specifically. In view of raising of objections of want of jurisdiction, it is obvious that OPs contested the claim of the complainant also on ground of lack of jurisdiction of this Forum. If lack of jurisdiction of the Forum is pleaded in the written replies, then every aspect of the case has to be taken into consideration for finding as to whether this Forum has jurisdiction to decide the complaint or not. So not only question of pecuniary jurisdiction, but even if territorial jurisdiction has to be dealt with for finding if the objections raised by the OPs has any substance or not. It is not the case in which objection of jurisdiction of this Forum not raised at the earliest stage of filing written reply and as such facts of the cited case by counsel for the complainant are distinct than those of facts of the case before us. By applying the ratio of above cited cases to the facts of the present case, there remains no escape from the conclusion that this Forum has no pecuniary jurisdiction to decide this complaint. Being so, complaint deserves to be returned to the complainant for presentation before the Hon’ble State Commission, who in our opinion will be having the jurisdiction.

10.            As a sequel of above discussion, complaint returned to complainant for presentation before Hon’ble State Consumer Disputes Redressal Commission Punjab, Chandigarh. Certified copy of the order be supplied to the parties free of costs as per rules.   File be indexed and consigned to record room.

Announced

May 11, 2018.

                                                                (G.K. Dhir)

                                                                President

                                                                             (Amrinder Singh Sidhu)                                                               Member

(Mrs. Natasha Chopra)

Member