Order No. 12 Dated: 26.06.2019
The instant hearing arising out of an application dated 11.03.2019 filed by the OPs challenging the maintainability of the Consumer Complaint.
The Ld. Advocate for the OPs has submitted that the complainant is an auction purchaser of the two flats measuring about 2727 Sq. ft. and two car parking space measuring about 120 Sq. ft. each at Premise No. 682, M.B. Road, Kolkata – 700051. Auction was held on 30.11.2015 and the sale price of the flats together with car parking space was Rs.35,58,400/-. She has further contended that the complainant has claimed compensation and damages of Rs.5,00,000/- each. Therefore, the value of the subject flat, compensation and damage comes to Rs.55,58,400/-. Thus, the District Consumer Forum has no jurisdiction to try and entertain the complainant. Ld. Advocate for the OPs has also submitted in course of hearing that being an auction purchaser complainant is not a consumer under the Consumer Protection Act, 1986 and the consumer complaint is not maintainable. She further argued that the consumer complaint is barred by limitation u/section 24A of the C.P. Act,1986 as the auction was held on 30.11.2015, possession was handed over to the complainant as per Sale Notice dated 18.10.2015 and complainant failed to approach this Forum within two years after getting possession of the flats and two car parking space. As such, this Forum has no jurisdiction to entertain the complaint after expiry of the prescribed period of limitation and complaint is barred by limitation.
Per- contra the Ld. Advocate for the complainant has submitted that the OPs did not handover possession of two car parking space to the complainant in terms of the Sale Notice dated 18.10.2015 and also auction Sale dated 30.11.2015. He has further contended that the OPs handed over the part possession of the property fully described in the schedule of the Sale Notice. Therefore, the cause of action started from the date of Sale and is still continuing, legal notice was sent to the OP-2 requesting to handover possession of two car parking space in terms of the Sale Notice and the OP-2 replied the legal notice on 20.06.2016. According to the Ld. Advocate for the complainant serving of legal notice upon the OP-2 and their response to the said notice gave fresh cause of action to the complainant to file the instant complaint. The Ld. Advocate for the complainant urged that the value of two car parking space is Rs.10,00,000/- and she has also claimed Rs.5,00,000/- each as damage and compensation. Thus, the value of the subject car parking spaces come to Rs.20,00,000/- and this Forum has jurisdiction to entertain the instant consumer complaint.
For appreciation of the matter, it would be pertinent to have a look to the provisions of section 11 (1) of the Act which provides –
“11. Jurisdiction of the District Forum. –
- 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 compensation, if any, claimed “does not exceed rupees twenty lakhs”.
Needless to say, the jurisdiction means the authority of a Court/Forum to administer justice subject to the limitations imposed by law, which are three-fold, viz. – (a) as to subject matter; (b) as to territorial jurisdiction and (c) as to pecuniary jurisdiction. If any Court or Forum passes any order without any competence, the said order would be a nullity. It is well settled that the question of territorial and pecuniary jurisdiction has to be ascertained at the initial stage or in the nascent phase of the proceeding. However, in a decision reported in (2005) 7 SCC 791 (Harshad Chiman Lal Modi – vs. – D.L.F. Universal Ltd. & Anr.) the Hon’ble Apex Court has observed that the question of pecuniary jurisdiction or territorial jurisdiction has to be dealt with before the Court/Forum where the suit/complaint has been instituted and not in an appellate stage. Therefore, it is incumbent upon a Forum constituted under the Act to see at the time of admission of complaint that the provisions contained in Section 11or Section 17or Section 21 of the Act are strictly followed so that a real consumer may not suffer on technical fault at the end of the day.
The Act does not specifically lay down as to how a complaint is to be valued for the purpose of jurisdiction. However, the Hon’ble National Commission is consistent with the view that it is the total value of the goods and / or services as well as that of compensation would determine the pecuniary limit of jurisdiction of Consumer Forum. In a decision reported in 1996 (2) CPR 26 (M/S Quality Foils India Pvt. Ltd Vs Bank of Madura Ltd and Anr.) a larger Bench of Hon’ble National Commission presided by Justice V. Balakrishna Eradi has observed –
‘in our view, where a claim of compensation is pleaded in a Consumer Complaint, then the total value of the goods and / or services as well as that of compensation would determine the pecuniary limit of jurisdiction’.
In a decision dated 12.03.2012 in RP/2679/2011 (P.S. Srijan Enclave and Ors Vs Sanjeev Bhargav) the National Commission has observed thus:
“it is settled Law that determination of pecuniary jurisdiction in respect of a dispute regarding service relating to housing would include the value of the property as a whole as well as the compensation demanded in the complaint.”
Recently, in the case of Ambrish Kumar Shukla & 21 Ors. – Vs. – Ferrous Infrastructure Pvt. Ltd. reported in I (2017) CPJ 1, the Larger Bench of the Hon’ble National Commission while discussing on the point has observed thus-
“It is evident from a bare perusal of Sections 21, 17 and 11 of the Consumer Protection Act that it’s the value of the goods or services and the compensation, if any, claimed which determines the pecuniary jurisdiction of the Consumer Forum. The Act does not envisage determination of the pecuniary jurisdiction based upon the cost of removing deficiencies in the goods purchased or the servicers to be rendered to the consumer. Therefore, the cost of removing the defects or deficiencies in the goods or the services would have no bearing on the determination of the pecuniary jurisdiction. If the aggregate of the value of the goods purchased or the services hired or availed of by a consumer, when added to the compensation, if any, claimed in the complaint by him, exceeds Rs.1.00 crore, it is this Commission alone which would have the pecuniary jurisdiction to entertain the complaint ....”. Giving instance to the same it has been stated – ‘if for instance, a house is sold for more than Rs. 1.00 crore, certain defects are found in the house, and the cost of removing those defects is Rs. 5.00 lacs, the complaint would have to be filed before this Commission, the value of services itself being more than Rs. 1.00 crore”.
Therefore, there cannot be any dispute that it is the value of goods or services and compensation claimed determines pecuniary jurisdiction of the consumer Forum. The District Forum enjoys a pecuniary jurisdiction not exceeding Rs. 20,00,000/-. In the instant case, the value of two flats and two car parking space is Rs. 35,58,400/- and the compensation and damages claimed comes to Rs. 55,58,400/- which certainly beyond the pecuniary jurisdiction of this Forum.
The next issue involved in the case relates to whether the complainant is a consumer under the Consumer Protection Act, 1986, being an auction purchaser. From the advertisement in respect of the auction Sale of two flats and two car parking space and also from the information provided to the participants of auction, it is very clear that auction was on “as is whether is” basis. Based on this information every participant would have take part keeping the risks in mind. Admitted fact that complainant being an auction purchaser purchased two flats and two car parking space situated at 682, M.B. Road, Kolkata-700051 at a Sale price of Rs. 35,58,400/-. Final order of the Hon’ble NCDRC in First Appeal No. 483 of 2014 (Chief Manager/ Authorized officer, State Bank of Mysore-Vs.-G. Mahimaiah) supported the submission of the Ld. Advocate appearing for the OPs. In view of the above decision we are of the view that the complainant being the auction purchaser is not a Consumer under the Consumer Protection Act, 1986.
Last issue as to whether the complaint is barred by limitation. According to the Ld. Advocate for the complainant. Cause of action arose on 16.08.2016 and 18.08.2016 when the complainant sent legal notice to the OP-2 and OP-2 replied the notice. Fact remains that auction was held on 30.11.2015, Sale price of two flats and two car parking space was Rs. 35,58,400/- and the complainant being the highest bidder purchased the property including two car parking space. Possession was delivered to the complainant vide letter dated 18.01.2016 and during Sale proceed the complainant never raise any objection with regard two car parking space.
In Haryana Urban Development Authority-Vs.-B.K.Sood, MANU/SC/1683/2005 IV (2005) CPJ 1 (SC) the Hon’ble Supreme Court, referring to the provisions of Section 24A of the Consumer Protection Act,1986, inter alia observed as under:-
“11. The Section debars any Fora set up under the Act, admitting a complaint unless the complaint is filed within two years from the date of which the cause of action has arisen.”
In State Bank of India Vs. B.S. Agricultural Industries MANU/SC/0420/2009: I (2009) CPJ 29 (SC), the Hon’ble Supreme Court, considering the provisions of Section 24-A of the Consumer Protection Act, 1986, inter-alia observed and held as under:
“8. It would be seen from the aforesaid provision that it is peremptory in nature and requires Consumer Forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The Consumer Forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression ‘shall not admit a complaint’ occurring in Section 24A is sort of a legislative command to be Consumer Forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the Consumer Forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of Consumer Forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the Consumer Forum decides the complaint on merits, the Forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside.”
According to the complainant the cause of action arose 1) when the auction was held 2) when complainant sent legal notice and 3) when the OP-2 replied said legal notice. Complainant also claims that such cause of action is a continuing cause of action since the complainant continue to suffer mental agony. In our view the cause of action for filing the complaint arose for the first time when the complainant purchased two flats including subject car parking space and possession was delivered as is where is, as is what is, whatever there is and without recourse basis. The cause of action, which accrued to the complainant before this Forum cannot be said to be a continuing cause of action and when she had came to know that possession of two car parking space has not been delivered despite of auction Sale from the OPs/Bank. Neither serving of the legal notice upon the OPs nor their response to the said notice gave any fresh cause of action to the complainant to file the instant complaint. The cause of action, which accrued to the complainant before this Forum cannot be said to be a continuing cause of action. The auction was held on 30.11.2015 and possession of the flats including two car parking space was delivered to the complainant as per Sale Notice dated 18.10.2015. Therefore, it is not correct to say that the complaint has been filed within two years from the auction purchase. Thus, the consumer complaint is barred by limitation u/section 24A of the C.P. Act, 1986.
In view of the above discussion, we are of the view that the complainant is not a consumer under the Consumer Protection Act being an auction purchaser the value of the property is beyond the pecuniary jurisdiction of this Forum and the complaint is barred by the limitation u/section 24A of the Consumer Protection Act, 1986.
In the result, the application merit succeeds.
Hence,
ORDERED
That the Miscellaneous Application is allowed on contest but without any cost. Thus, M.A. being No. 121 of 2019 is disposed of.
Consequently, the complaint is dismissed being not maintainable for want of its pecuniary jurisdiction, barred by limitation and complainant is not a consumer under the provision of C.P. Act, 1986.
