*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-**-*-*-*-**-**-
Advocate Anil Kankariya for the complainants
Opponent exparte
*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-**-*-*-*-**-**-
Per Hon’ble Shri. V. P. Utpat, President
:- JUDGMENT :-
Date – 31st December 2013
This complaint is filed by flat owners against builder and promoter for deficiency in service u/s 12 of the Consumer Protection Act, 1986. Brief facts are as follows-
[1] Complainants are husband and wife. Opponent is dealing in the profession of construction. Opponent has started housing project known as “Ashwini Paradise” in Bibwewadi, Pune. Complainants had booked flat No. 301 in building ‘B’ on third floor admeasuring about 977 sq.ft. The consideration of the said flat was fixed at Rs.13,68,000/-. Complainants had paid Rs.5,00,000/- vide demand draft dated 10/3/2006 for booking of the flat. Thereafter, on 14/3/2006 another demand draft of Rs.4,00,000/- was given to the Opponent. On 2/5/2006 third demand draft of Rs.1,00,000/- was given to the Opponent by the complainants. Thus, complainants have paid Rs.10,00,000/- from time to time. The amount of Rs.3,68,000/- remain outstanding. That amount was to be given at the time of possession. In the month of October 2006 complainants have asked for the possession of the flat. But Opponent had required some time for completion of construction. Possession of the flat was not delivered as per the agreement dated 3rd May 2006. Opponent has not fulfilled the terms and conditions in the agreement. Hence, complainants have filed this complaint for deficiency in service. They have asked possession of the flat, compensation of Rs.20,00,000/- and cost of proceeding to the tune of Rs.25,000/-.
[2] Opponent though duly served remained absent. Hence, complaint is proceeded exparte against the Opponent.
[3] Subsequently, complainants have amended the complaint and reduced compensation amount from Rs.20,00,000/- to Rs.19,50,000/-. As the Opponent has failed to file say, amendment was allowed. Then, complainants have filed written notes of argument. Complainants have also filed voluminous documentary evidence such as copy of agreement, commencement certificate, copies of D.D.s, Index II etc.
[4] After considering the pleadings of complainants and scrutinizing the documentary evidence, following points arise for our 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 proceeding is above Rs.20,00,000/- ? | In the affirmative |
2 | Whether this Forum has pecuniary jurisdiction to entertain and try the present complaint ? | In the negative |
3 | What order ? | Complaint is returned to the complainants for presenting the same in proper Forum. |
REASONS-
As to the Point Nos. 1 to 3 –
[5] It reveals from the documentary evidence as well as pleadings that the total consideration of the flat was Rs.13,68,000/- out of which amount of Rs.10,00,000/- was paid by the complainants to the Opponent by way of D.D.s Complainants have asked compensation of Rs.19,50,000/- as well as cost of litigation of Rs.25,000/-. As the complainants have asked possession of the flat, the price of the flat should be included in the total claim of the present complaint. If the price of the flat is added in the amount of compensation then the claim of the complainants is beyond the pecuniary jurisdiction of this Forum, as the pecuniary jurisdiction of this Forum is upto Rs.20,00,000/-. After additing the price of the flat, the total claim of the complainants become Rs.33,43,000/-. In such circumstances this Forum has no jurisdiction to entertain the present complaints.
[6] 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.
[7] 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.
[8] 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.
[9] After considering this legal preposition we held that this Forum has no pecuniary jurisdiction to entertain the present complaint as total claim of the complainants is more than Rs.20,00,000/-. The Complainants have not produced any legal preposition in order to rebut the settled legal position
[10] In the light of the above observations, this Forum is of the opinion that this Forum has no pecuniary jurisdiction to entertain the present complaint. Hence, it should be returned to the complainants for presenting the same before appropriate Forum. We answer the points accordingly and pass the following order-
:- ORDER :-
1. Complaint is returned to the complainants for filing the same before appropriate Forum within one month from the date of Order.
2. As per peculiar circumstances there is no order as to costs
3. Complainants are directed to collect the sets which are
provided for the Hon’ble Members within one month from the date of order. Else those will be destroyed.
Copy of order be supplied to both the parties free of cost.
Place – Pune
Date – 31/12/2013
