O R D E R
Order No: 06, Dated: 03.12.2019
Banani Mohanta (Ganguli), Member:-This order is arising out of an application filed by the O.P No: 1 namely, Godrej Redevelopers( Mumbai) Pvt. Ltd, challenging the maintainability of the Consumer Complaint No: 30 of 2019, hereinafter will be referred as ‘case’, and prays for dismissing the case as per the grounds stated in the petition, which has been registered as MA-65 of 2019.
Ld. Advocate on behalf of the petitioner/O.P No:1 has submitted that the present complaint is not maintainable either in law and facts and further submitted that the complainants/ O.Ps herein are not consumers within the meaning of Sec-2(1)(d) of the C.P.Act,1986 and the dispute is not a consumer dispute and no cause of action has arisen within the territorial jurisdiction of this Forum and further this Forum is also lacking pecuniary jurisdiction to entertain the case and therefore prays for dismissal of the case.
Ld Advocate for the Petitioner/ O.P No: 1 further submitted that the complainants have not disclosed the total consideration amount of the flat in the complaint petition, being Flat No: 504, S4 wing, which the Complainants have booked and expressed their intention to purchase the same in the residential project being carried out and constructed at Sahakar Nagar-2(Popularly known as Shell Colony at Chembur, Mumbai-400071 to be known as Godrej Prime (Project) under the Petitioner/ O.P No: 1.
Ld. Advocate for the Petitioner/ O.P No:1 further submitted that the complainants initially reserved a Flat in the project of the Petitioner/ O.P No: 1 by signing as Expression of Interest( E.O.I) dated 25th June, 2015 and made payment of Rs.23,16,924/ and the Petitioner/ O.P No:1 issued receipt thereof being receipt No: 3200000643 dated 30.07.2015 and further the Petitioner/ O.P No: 1 issued a receipt of Rs.22,376.57 towards T.D.S, being receipt No: 3200001075 dated 18.09.2015.
Ld. Advocate for the Petitioner/ O.P No:1 further submitted that the Complainants did not follow up the payment plan attached to the E.O.I and did not adhere to the same and as a result of which huge interest has been accrued against them for delayed payment.
Ld. Advocate for the Petitioner/ O.P No:1 further submitted that on 01st july,2017 the Petitioner/ O.P No: 1 received an e-mail from the complainants asking for cancellation of their flat on medical grounds and the request has been reviewed by the Petitioner/ O.P No: 1 and the Petitioner/ O.P No: 1 adhering to the terms of the E.O.I circulated a letter of cancellation on 29th September,2017 and the Complainants signed the letter of cancellation and duly agreed to the terms of cancellation as stated in the letter and as per the agreement accorded an amount of Rs.18,51,889 was duly refunded. The said amount was disbursed post deduction of VAT, 1% of consideration value and GST as applicable as was agreed by the complainants. The complainants have accepted the terms of cancellation and the Petitioner/ O.P No: 1 processed their refund of amount after deduction of 1% of sale consideration after giving 50% waiver as a goodwill gesture and considering the issue i.e the medical grounds of the complainants.
Ld. Advocate for the Petitioner/ O.P No:1 further submitted that the cost of the flat was Rs. 1,79,01,250/( Rupees one Crore Seventy Nine lakhs one thousand two hundred and fifty only) therefore this Forum has no jurisdiction to entertain this present complaint. Ld. Advocate mentioned that as per Sec-11(1) of the Consumer Protection Act, 1986 this Forum has no pecuniary Jurisdiction to entertain this Complaint.
Further Ld. Advocate for the Petitioner/ O.P No: 1 has submitted that the complete correspondence with the O.Ps have been made at Mumbai only and the subject flat is situated in Mumbai. No part cause of action has arisen or exists within the territorial jurisdiction of this Forum. Mere presence of a branch office in Kolkata, where no correspondence was made, cannot extent the territorial jurisdiction and this Forum also lacking territorial jurisdiction. Furthermore, the Petitioner/ O.P No: 1 is not negligent or deficient in providing service to the Complainant and therefore he prays for dismissal of the case.
Ld. Advocate for the Petitioner/ O.P No: 1 cited some case decisions in support of his contention.
One case decision has been cited by the Ld. Advocate for the Petitioner/ O.P No: 1, being titled as Ambrish Kumar Shukla & 21 others Vs The Ferrous Infrastructure Pvt. Ltd,( Order dated 07.10.2016) in which Hon’ble National Commission was pleased to hold the view of pecuniary jurisdiction. It was held that “Aggregate of the value of the goods purchased or services hired or availed of by all those numerous consumers and the total compensation, if any claimed for all those numerous consumers comes to more than Rs.1 crore, the pecuniary jurisdiction would rest with this commission alone.”
Further, Ld Advocate for the Petitioner/ O.P No: 1 cited another case decision reported in II( 2014) CPJ-705( N.C) in which Hon’ble N.C.D.R.C has been pleased to hold the view that “ It is manifestly clear from the record that respondent herself had applied for the refund of the amount. In pursuance thereof, she had received a cheque of Rs. 52,258/ from the petitioner. Moreover, the cheque had already been en-cashed by the respondent more that 12 years ago.
However, respondent for reasons best known to her had concealed all the material facts from all the Consumer Fora. Once respondent had claimed the refund amount, then she ceases to be a consumer.”
It is further observed by the Hon’ble N.C.D.R.C in the aforesaid case that “It is well settled that any litigant who approaches any judicial Forum with unclean hands and conceal the material facts, is not entitled to any relief in equity. Under these circumstances, since respondent had concealed the material and relevant facts, we have no option but to allow the present petition. Consequently, the complaint filed by the respondent before the District Forum is liable to be dismissed. Therefore we allow the present revision petition with coast of Rs.10,000/. Respondent is directed to deposit the cost by way of demand draft in the name of “Consumer Legal Aid Account” of this Commission within four weeks from today”.
On the other hand, one written objection has been filed by the Complainant No:1 Arun Kumar Singh duly signed by him against the petition filed by the Petitioner/ O.P No: 1 of the case and Ld Advocate for the Complainant (Opposite Party of this Petition) denied all the allegations made in the petition filed by the O.P No: 1 and submitted that the petition of the O.P No: 1 is not maintainable, it is totally harassing, motivated misconceived etc. and the O.P No:1 has failed to take into consideration the actual disputes involved in the proceeding.
Ld. Advocate for the Complainant further submitted that the O.Ps induced the complainant to enter into an agreement and taken advance and subsequently refunded the advanced amount which was en-cashed into the complaint’s bank account.
Ld. Advocate for the Complainant further submitted that the main dispute between the parties is refusal to refund an amount of Rs. 9,23,482/ which is part of the advance consideration and illegal deducting of the amount on the account of GST being the amount of Rs.4,87,411/, which is within the pecuniary limit and jurisdiction of this Forum.
Ld. Advocate for the Complainant further submitted that since both parties have accepted and acted upon the failure to provide the immovable property out of contract the value of the immovable property cannot be considered for the
purpose of determination of valuation of the proceeding and the Complainant is praying for rejection of the petition of the O.P No: 1 with exemplary costs.
Heard both sides.
Perused the petition filed by the O.P No: 1, W/O filed by the Complainant No: 1 and complaint petition, relevant documents and other materials on case record.
It is evident from the petition that the petitioner/O.P No: 1 challenged the maintainability of the case on the ground of territorial jurisdiction as well as pecuniary jurisdiction of this Forum and others reasons as stated in the petition.
From the copy of Expression of Interest (EOI)dated 25.06.2015 it is revealed that the complainants expressed their interest, wished to register and/or reservation of a 2 BHK residential flat being No: 504, area about 753 sq.ft on 5th floor at S4 wing in the project of the O.Ps, proposed to be carried out and developed at Sahakar Nagar-2 layout, popularly known as Shell Colony at Chembur, Mumbai-400071 and the complainants paid Rs.10,00,000/( Rupees Ten lakhs only)to the O.Ps by way of a cheque being No: 170779 dated 03.06.2015 and deposited the same directly in the Kolkata office of the O.Ps after going through the terms and conditions appended thereto and the O.Ps issued a receipt thereof being receipt No: 3200000643 dated 30.07.2015.
Further, it is revealed from the copy of the documents annexed by the Complainants that the complainants further paid Rs. 13,16,924/( Rupees Thirteen lakhs sixteen thousand nine hundred twenty four only) by way of cheque being No: 981683 dated 16.09.2015 through RTGS to the O.Ps and the O.Ps also issued a receipt being No: 3200001075 dated 18.09.2015. Thus the total amount deposited by the complainants comes to Rs. 23,16,924/.
The complainants did not disclose the total consideration of the flat in their complaint petition. They also not mentioned the same in their written objection.
But from the copy of documents annexed by the complainants it is revealed that the total consideration amount of the flat inclusive estimated Government levies is amounting to Rs. 2,07,40,036/ ( Rupees Two crore seven lakhs forty thousand and thirty six only).
Again from the Petition of the Petitioner/ O.P No: 1 it is found that the cost of the flat is Rs.1,79,01,250/( Rupees one crore seventy nine lakhs one thousand two hundred fifty only).
Section 11 of the Consumer Protection Act, 1986 provides the jurisdiction of the District Forum.
Sec 11(1) of the C.P.Act,1986 provides that “ 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”.
Further, the Judgment of the Hon’ble National Commission regarding the pecuniary jurisdiction point has been clearly explained in Ambrish Kumar Shukla & 21 others Vs The Ferrous Infrastructure Pvt. Ltd.
In Sanjay Saini Vs M/S Spaze Tower Pvt. Ltd, reported in 2017(1) C.P.R-541( N.C), the Hon’ble National Commission was pleased to hold the view that “ the value of flat was to be taken into consideration for determining pecuniary jurisdiction in matter in hand. Cost of removing defects or deficiencies in goods or services would have no bearing on determination of pecuniary jurisdiction”.
The complaints nowhere in the complaint petition disclosed the value of the service or cost of the flat in question. The complaints concealed and/ or suppressed the actual value of the flat. The complainants also did not disclose the amount paid in advance or deposited in their complaint petition.
That being the position, we are of the view that the complainants have not come to this Forum with clean hands and further considering the above proposition of law we are of the view that the case of the complainants is not maintainable in this Forum and it deserves to be dismissed for want of pecuniary jurisdiction of this Forum.
Further, in the complaint case the main issue raised by the complainants is that the complainants have cancelled the booking of the flat in question and on 01st july,2017 the Petitioner/ O.P No: 1 received an e-mail from the complainants asking for cancellation of their flat on medical grounds and the request has been reviewed by the Petitioner/ O.P No: 1 and the Petitioner/ O.P No: 1 adhering to the terms of the E.O.I circulated a letter of cancellation on 29th September,2017 and the complainants signed the letter of cancellation and duly agreed to the terms of cancellation as stated in the letter and as per the agreement accorded an amount of Rs.18,51,889 was duly refunded. It is not clear whether the complainants received the amount with objection or not. It is also not clear whether the money refunded has been en-cashed or not. The complainants have not clearly disclosed such things .The said amount was disbursed post deduction of VAT, 1% of consideration value and GST as applicable as was agreed by the complainants. The complainants, being not satisfied with such refund amount, claimed an amount of Rs. 9,23,482/ with interest further in the complaint petition, though the complainants deposited an amount of Rs. 23,16,924/ as advance booking amount for purchasing the flat in question.
In this regard we would like to refer a case decision titled as M/S Advance Ispat ( India) Ltd Vs M/S Parsvnath Developers Ltd ,reported in 2017(3) C.P.R-505( N.C), wherein Hon’ble National Commission was pleased to observe as “ Main prayer is in respect of refund of deposited amount of Rs.24,37,470/. There is difference in cases where parties want to go ahead and conclude sale of goods or availment of services and where one party is only seeking refund and thereby clearly deciding for non-execution of agreement. In cases of refund, value of complaint has to be value of amount deposited plus compensation claimed. Value of goods and services along with compensation can reach upto only Rs.89,59,340/. In this case even as per averments made by complainant the amount is less than rupees one crore and therefore the National Commission does not have pecuniary jurisdiction to decide this complaint case”.
From the ratio of the case decision it is clear that in cases of refund, the value of complaint has to be value of amount deposited plus compensation claimed.
In the case in hand, the complainants prayed for refund of the advance amount plus interest, which as per their view the O.Ps did not disburse the total deposited amount at the time of cancellation of E.O.I. Only a part of advance amount was disbursed at the time of cancellation after deducting certain amount as aforesaid. The Petitioner/ O.P No: 1 stated that as per the terms and conditions of the expression of Interest (E.O.I) they deducted some amount as VAT, GST etc and disbursed the actual amount to the complainants which they were entitled to.
We find that the advance amount deposited to the tune of Rs. Rs. 23,16,924/ as per the documents annexed by the complainants and the O.Ps also admitted the same in their W.V.
Therefore, as per the above proposition of law, as laid down by the Hon’ble National Commission, in M/S Advance Ispat ( India) Ltd Vs M/S Parsvnath Developers Ltd ,reported in 2017(3) C.P.R-505( N.C), the value of the present complaint would be Rs.23,16,924/ and this Forum is also lacking pecuniary jurisdiction to try and adjudicate the case in hand and on this score alone the case of the complainant is liable to be dismissed.
Further, the complainants paid the advance amount of Rs.10,00,000/ directly to the branch office of the O.Ps at Kolkata by drawing a cheque as referred above. Further payment of Rs.13,16,924/ was made through electronic transfer. The subject flat is situated art Mumbai. The project of the O.Ps, proposed to be carried out and developed at Sahakar Nagar-2 layout, popularly known as Shell Colony at Chembur, Mumbai-400071. There is no whisper in the case record that the proposal or acceptance of the cancellation of the E.O.I has been made within the jurisdiction of this Forum at Howrah. Where the complainants accepted the refund amount is not also made clear by the Complainants.
Therefore, we are of the view that no part cause of action has arisen within the territorial jurisdiction of this Forum as per the provision of Sec-11(2)( c ) of the C.P.Act,1986. Mere drawing cheques from the complainant’s account or money sent through RTGS or receiving cheque vice versa do not attract territorial jurisdiction of this Forum.
Further, the main office of the O.P No: 1 is at Mumbai and it carries on business or works for gain at Mumbai. The address of the O.P No: 2 is at Salt lake, Kolkata and it is a branch office of O.P No: 1 and it is also carries on business or works for gain under the O.P No: 1 at Kolkata jurisdiction only and therefore in view of the Sec-11(2) of the C.P.Act, 1986 this Forum also lacking territorial jurisdiction to entertain and adjudicate the dispute and therefore the case of the complainants is liable to be dismissed.
Further in M/S Sonic Surgical Vs National Insurance Company ltd, reported in (2010)1 S.C.C,Page-135, Hon’ble Justices of the Apex Court Sri. Markandeya Katju J.J and Sri. Ashoke Kumar Ganguly J.J in deciding the case being Civil Appeal No: 1560 of 2004, order dated 20.10.2009 described the term “branch office” used in Sec-17(2) of the C.P.Act,1986 and were pleased to hold the view that branch office means only that branch office where the cause of action has arisen.
Here the branch office of the O.P No: 1 is also in Kolkata, which is also outside the territorial jurisdiction of this Forum and therefore the case of the complainants is not maintainable for want of jurisdiction.
Be it mentioned that the complainant No: 1 in his W/ O mentioned the property in question and termed it as “Immovable property” and stated that the value of the immovable property cannot be considered for the valuation of the proceeding.
It is to be clear that the Consumer Forum cannot adjudicate any matter, if the dispute relates to any immovable property. The law is well settled on this subject.
It is settled principle of law that no service is provided in case of a dispute relating to immovable property and the Consumer For a have no jurisdiction to entertain and adjudicate any such matter.
Section 2(o) of the C.P.Act,1986 defined “Service” where the term ‘housing construction’ has been embedded and in case of any deficiency in providing service, the concerned consumer can approach to the Consumer Fora seeking for redreesal.
The case decisions cited above by the Ld. Advocate for the Petitioner/ O.P No: 1 has supported his case.
In our view, it is crystal clear from the record that complainants themselves had applied for the refund of the amount. In pursuance thereof, they had received Rs. 18,51,889/ after necessary deduction from the petitioner/ O.Ps of the case. Moreover, the amount had already been credited in the account of the complainants more than a year ago and they are enjoying the same. However, complainants for reasons best known to them had concealed all the material facts from the Consumer Forum and in the light of the above case decision supported by the Petitioner/ O.P No: 1, it is our considered view that once complainants had claimed the refund amount, then they ceases to be consumers.
On the other hand, Ld. Advocate for the Complainant cited one case decision reported in IV ( 2005) CPJ 224( N.C) , wherein some miscalculation has been taken place and the Insurance company made partial payment to the complainant subject to calculations. The balance amount was not paid by the Insurance
Company. The concerned State Commission dismissed the misc. case by observing the view that the State Commission was not a place for going into matter of calculation of accounts as the matter was disposed of in presence of both the parties. This finding is totally erroneous. In the case referred, the Hon’ble National Commission was pleased to allow the revision petition and directed the Insurance company to pay Rs. 3,70,077/ to the complainant within a period of two months from the date of order.
In our view, the above referred case has no resemblance with the present case in hand. The principle and ratio of the cited case cannot be applied in this case as the facts and circumstances of the present case in hand are not identical with the referred case and therefore it has no relevance in deciding the petition.
Considering all above, we are of the view that the application of the Petitioner/ O.P No: 1 challenging the maintainability of the case, registered as M.A-65 of 2019 is deserves to be allowed on contest and the present case in hand, being C.C -30 of 2019 is not maintainable, for want of territorial and pecuniary jurisdiction of this Forum and for other reasons as mentioned hereinabove and the complainants may approach to any competent Court of Law/ Forum and ventilate their grievance if not otherwise barred.
Further, it is to be noted that the case record was placed in ejlash in unstitched condition and the order sheets are in a scattered condition. Office is hereby directed to do the needful.
Hence
It is ordered that the M.A-65 of 2019 is allowed on contest.
Consequently, the Consumer Complaint, being No: C.C-30 of 2019 is not maintainable before this Forum for want of territorial and pecuniary jurisdiction of this Forum and hence the Consumer Complaint, being No: C.C-30 of 2019 is dismissed as not maintainable.
Let the order of this M.A-65 of 2019 be kept in the Misc. Case and a copy of this Order is also be kept in the C.C-30 of 2019.
Let free copies be given to the parties concerned as per the provision of Regulation-21 of the Consumer Protection Regulations,2005.
The M.A-65 of 2019 is allowed and disposed of.
Typed and corrected by me.
Member
