BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 10^th DAY OF MARCH 2022

COMMON ORDER

SRI.K.S.BILAGI, PRESIDENT

1. The complaint has been filed under Section 12 of C.P.Act, 1986 (herein under referred as an Act) for the following reliefs against the OPs:-

(a) Direct the OP to refund the entire amount of Rs.10,27,932/- along with 18% interest p.a. from the date of making payments till realization.

(b) Direct the OP to pay Rs.50,000/- towards compensation for deficiency in service.

(c) Direct the OP to pay compensation of Rs.50,000/- towards shock, mental and physical suffering and loss of time due to the deficiency of service on the part of OP.

(d) Grant such other reliefs deemed fit and proper under the circumstances of the case in the interest of justice and equity.

2. The case set up by the complainant in brief is as under:-

The complainant having agreed to purchase 2 BHK flat measuring 850 sq.ft. in Dreamz Susthapit of OPs for sale consideration of Rs.16,00,000/- under memo of understanding, paid Rs.10,27,932/- on different dates.

3. It is further case of the complainant that the OPs have played fraud on the complainant by creating the documents.  Therefore, the complainant called upon the OPs to refund the amount with interest by issuing legal notice dated 28.11.2019. But, OPs failed to heed the request of the complainant. The OPs have committed deficiency of service towards complainant.  Hence, this complaint.

4. The notice of complaint has been duly published in Hosadigantha daily newspaper.  But, OPs failed to appear before this Forum/Commission. They have been placed exparte.

5. The complainant has filed his affidavit evidence and relies on 5 documents. Heard the arguments of advocate for complainant.  Perused the records.

6. The following points arise for our consideration:-

1. Whether the then District Forum had pecuniary jurisdiction to entertain this complaint on the date of filing the complaint?
2. Whether the complainant proves the deficiency of service on the part of OPs?
3. Whether the complainant is entitled to reliefs mentioned in the complaint?
4. What order?

7. Our answers to the above points are as under:

       Point No.1:-  In the negative.

      Point Nos.2 and 3:- Do not survive for our   

      consideration

      Point No.4:-per final orders

REASONS

8. Point No.1:Even though, the OPs have been placed exparte. It is settled preposition of law that the Commission/Authority or Court has power to entertain complaint/suit subject to pecuniary and territorial jurisdiction.
9. The complainant in support of his case, relies on affidavit evidence and Ex.P.1 to P.5.   The evidence placed before us clearly indicates that the complainant and OPs entered into agreement of sale dated 29.02.2016 in respect of 2 BHK flat for sale consideration of Rs.15,00,000/- and paid Rs.10,27,932/-.  Whereas receipts under Ex.P.2 to Ex.P.4 indicate that payment of Rs.2,02,932/- and under MOU dated 29.02.2016 indicate that payment of Rs.8,25,000/-.  But, complainant as asserted that agreed sale consideration was Rs.15,00,000/- or 16,00,000/-.  This complaint proceeded by legal notice dated 28.11.2019.  Wherein complainant called upon the OPs to refund Rs.10,27,932/- with interest and compensation.  Even this payment of Rs.10,27,932/- is taken into consideration along with other sale consideration of Rs.15,00,000/- or Rs.16,00,000/- along with the claim amount of Rs.10,27,932/- with interest from the date of making payments, Rs.50,000/- compensation and Rs.50,000/- towards shock, mental and physical suffering.  The total amount for the purpose of pecuniary jurisdiction would be more than Rs.20,00,000/-.  The question arises whether on the date of filing the complaint on 09.06.2020 this District Consumer Forum/Commission under C.P.Act, 1986 had jurisdiction or not? Therefore, it is necessary to refer Section 11(1) of C.P.Act, 1986, the value for the purpose of pecuniary jurisdiction shall be less than Rs.20,00,000/-, whenever complaints filed showing  the value of goods or services and value of the reliefs claimed. Therefore, it is necessary to refer Section 11(1) of C.P.Act, 1986 which read thus:-

11(1): 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 five lakhs).  

10. According to the above provision for the purpose of pecuniary jurisdiction of this District Consumer Forum, the value for the purpose of pecuniary jurisdiction shall be determined on the basis of value of goods or services and amount claimed. In the present case the value of service Rs.16,00,000/- or Rs.15,00,000/- (under memorandum of understanding or as per complaint pleadings) and claim of relief is Rs.10,27,932 interest at 18% p.a. from the date of payment, Rs.50,000/- towards compensation and Rs.50,000/- towards damages.  If these items are taken into consideration, the total value for the purpose of pecuniary jurisdiction would be more than Rs.20,00,000/-.  It means, on the date of filing the complaint, this Forum had no pecuniary jurisdiction to entertain the complaint.  This Forum had pecuniary jurisdiction to entertain the complaint when the component and value of service and claim does not exceed Rs.20,00,000/-. The complaint suffers from want of pecuniary jurisdiction on the date of filing the complaint.
11. This reasoning of us is supported by the decisions of Hon’ble National Consumer Commission reported in the following decisions:-

1. 2022(1) CPR 363 (NC) in the matter between Apoorv Bansal Vs. M/s Vatika Ltd.,  where in it is held that purpose of pecuniary jurisdiction – purpose of pecuniary jurisdiction, the value of services hired or availed plus compensation shall be the value for the purpose of pecuniary jurisdiction.
2. 2018 (2) CPR 111 in the matter between Gurmukh Singh Vs. Greater Mohali Area Development Authority and another. The Honb’le National Commission referring the earlier judgement of Larger Bench in Ambrish Kumar Shukla and others Vs. Ferrous Infrastructure Pvt. Ltd.,, wherein it was held in para 6 which read thus:-

Para 6:- A three-member bench of this Commission in their order on 07.10.2016, stated as under on the issue referred above:-

It is the value of the goods or services as the case may be, and not the value or cost of removing the deficiency in the service which is to be considered for the purpose of determining the pecuniary jurisdiction.

3. III (2018) CPJ 370 (NC) in the matter between Renu Singh Vs. Experion Development Pvt. Ltd., where in it is held that “Consumer Protection Act, 1986 Sections 29(1)(g), 21(a)(ii) – Pecuniary jurisdiction – booking of residential unit – builder-buyer agreement – Terms and conditions not agreed upon, Refund of deposited amount sought, alleged deficiency in service – State Commission dismissed complaint – Hence, appeal value of unit itself is Rs.1,28,84,474/- - Pecuniary jurisdiction in complaint is not before the State Commission but it is before the National Commission – No perversity in well reasoned order passed by State Commission.

12. The C.P.Act, 2019 has come into force w.e.f. 20.07.2020 under which the pecuniary jurisdiction of District Commission is enhanced to Rs.1 crore i.e. consideration paid.  The question arises, whether this complaint can be continued under the provisions of Consumer Protection Act, 2019.
13. We are of the considered opinion that the complaint filed under the provision of C.P.Act, 1986 cannot be continued under the new Act taking into payment of consideration the purpose of pecuniary jurisdiction mentioned in C.P.Act 2019.  The C.P.Act, 2019 has no retrospective effect.  This complaint cannot be continued under the new C.P.Act, 2019.  
14. This reasoning of us is supported by the following decisions of the Hon’ble Supreme Court of India and Hon’ble National Commission:-

1. 2021 (2) CPR 398 in the matter of Neena Aneja Vs. Jain Prakash Associates Ltd., dated 16^th March, 2021.  It  is relevant to refer to para 71 of the judgement which read thus:-

71. For the above reasons, we have come to the conclusion that proceedings instituted before the commencement of the Act of 2019 on 20 July 2020 would continue before the fora corresponding to those under the Act of 1986 (the National Commission, State Commissions and District Commissions) and not be transferred in terms of the pecuniary jurisdiction set for the fora established under the Act of 2019.  While allowing the appeals, we issue the following directions:

(i) The impugned judgement and order of the NCDRC dated 30 July 2020 and the review order dated 5 October 2020, directing a previously instituted consumer case under the Act of 1986 to be filled before the appropriate forum in terms of the pecuniary limits set under the Act of 2019, shall stand set aside;

(ii) As a consequence of (i) above, the national Commission shall continue hearing the consumer case instituted by the appellants;

(iii) All proceedings instituted before 20 July 2020 under the Act of 1986 shall continue to be heard by the fora corresponding to those designated under the Act of 1986 as explained above and not be transferred in terms of the new pecuniary limits established under the Act of 2019 and

iv) The respondent shall bear the costs of the appellant quantified at Rupees two lakhs which shall be payable within four weeks.

2. Case No.833/2020 in the matter between M/s Pyaridevi Chabiraj Steels Pvt. Ltd., Vs. National Insurance Company Ltd., and three others dated 28.08.2020 at para 10 read thus:-

Para 10:- From a reading of the aforesaid provisions it is amply clear that for determining the pecuniary jurisdiction of the District Commission, State Commission or National Commission the value of the goods or services paid as consideration alone has to be taken and not the value of the goods or services purchased/taken.  Therefore, we are of the view that the provision of Section 58 (1)(a)(i) of the Act of 2019 are very clear and does not call for any two interpretations.

15. On the date of filing the complaint, this District Consumer Forum had no pecuniary jurisdiction to entertain the complaint.  Accordingly, the complaint cannot be continued under C.P.Act, 2019.
16. Point Nos.2 and 3:- When the complaint was not maintainable on the date of filing the complaint and when the complaint cannot be continued under the new C.P.Act, 2019, these two points which touch the merits of the case, do not survive for consideration.    
17. Point No.4:- Having regard to the discussion made in the presiding paragraph on point No.1, the complaint requires to be returned to the complainant for presentation before the Hon’ble State Commission, Bengaluru.   Hence, we proceed to pass the following 

  O R D E R

1. The complaint was not maintainable for want of pecuniary jurisdiction on the date of filing the complaint and complaint cannot be continued under new C.P.Act, 2019.
2. Return the complaint to the complainant for presentation before the Hon’ble State Commission, Bengaluru.
3. Furnish the copy of this order to both parties as per law.   

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 10^th day of March, 2022)

Documents produced by the Complainant in CC No.359/2020 are as follows: