STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Date of Institution: 02.11.2017
Date of final hearing: 03.05.2023
Date of pronouncement:07.06.2023
First Appeal No. 1316 of 2017
In the matter of:-
Omaxe Ltd. Regd. Office-7 Local Shopping Center, Kalkaji, New Delhi 110019, through its authorized signatory namely Sh. Deepanjit Singh son of Sh. Satwant Singh, M/s OmaxeLtd. 7, LSC, Kalkaji, New Delhi. …..Appellant
Versus
Inder Dev son of Dharam Singh, resident of House No. 103, Ward No. 14, New Basant Vihar, Badli Road, Bahadurgarh, Tehsil Bahadurgarh, District Jhajjar. …..Respondent
CORAM: Naresh Katyal, Judicial Member
Argued By:- Sh. Sumesh Mahajan alongwith Sh. Manjinder Kumar, proxy counsel for Sh. Munish Gupta, counsel for the appellant.
Respondent in person with Sh. Sikander Bakshi, Advocate.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:
Delay of 126 days in filing of present appeal stand condoned for the reasons mentioned in the application for condonation of delay.
2. Appellant has invited challenge to the legality of order dated 26.05.2017 passed by District Consumer Disputes Redressal Forum- Jhajjar (In short “District Commission”) in complaint No.213 of 2016.
3. Complainant has alleged that he is assignee of assignor Mr. Netrapal who had booked unit/flat in the Vedanta Homes-Baharugarh i.e. project of OP on 06.06.2012 by paying Rs.2,50,000/-. Since then, he has been paying installments for above unit regularly and paid Rs.17,69,100/-to OP. As per agreement executed between him and OP on 18.01.2014; “the company shall complete development/construction work of unit/project within 18 months from the date of signing agreement, or within an extended period of 6 months” but OP has failed to fulfill its commitment regarding completion and possession of unit/flat, despite timely payment of due installments. Alleging deficiency in service on the part of OP; complainant has sought directions against OP to refund of amount deposited by him with interest, compensation and litigation expenses.
4. OP raised contest. In defence; it is pleaded that complainant is not consumer of OP.He is an investor and hence, does not come under definition of “consumer”. Timely possession of unit is subject to timely receiving of full and final payment towards the said unit. Complainant made declaration that, I/we hereby clearly agree and understand that the development/construction period of said unit as stated in the Allotment Letter/Agreement shall be reckoned with effect from the date of endorsement of allotment rights in my/our favour and I/we shall not claim for compensation for any delay in offer of possession of said unit by the company”. It is denied that complainant did not default in making the payment of installments, rather he after many requests/reminders failed to deposit the installment as agreed between him and OP. There is no deficiency in service on the part of OP and dismissal of complaint has been sought.
5. Parties to this lis led evidence, oral as well as documentary.
6. On analyzing the same; learned District Consumer Commission had disposed off the complaint vide order dated 26.05.2017 by directing OP to refund total amount of Rs.17,69,100/-to complainant (as deposited by him, vide receipts Ex. P-5 to Ex.P-9 i.e. Rs.7,00,000/-, Rs.2,63,500/-, Rs.2,65,000/-, Rs.2,90,600/-, Rs.2,50,000/-on 31.08.2015, 01.11.2014, 18.03.2014, 05.06.2013 &06.06.2012 respectively) along with an interest @ 9% p.a. from the date of filing of complaint i.e. 19.8.2016, till realization of final payment to the complainant. Complainant has also been heldentitled for a sum of Rs.5500/-on account of litigation expenses.
7. Feeling aggrieved this appeal has been filed by OP.
8. I have heard learned counsel for parties at length.Record of learned District Commission too has been perused.
9. Learned counsel for the appellant/OPhas raised one short submission that District Consumer Commission has lacked inherent pecuniary jurisdiction to try the complaint, and as such impugned order dated 26.05.2017 is a nullity. To stimulate his contention the learned counsel for appellant has relied upon judgment of Hon’ble Apex Court in case titled as “Dr. JagmittarSain Bhagat versus Director Health Services Haryana and others” 2013 (3) RCR Civil 942: AIR 2013 SC 3060and urged that total cost of unit as per Annexure-A appended with agreement dated 18.01.2014 is Rs.23,03,550/- and with this face value of unit which was agreed to be purchased; learned District Commission has lacked pecuniary jurisdiction.
10. To counter this submission;learned counsel for complainant has urged that: objection regarding lack of pecuniary jurisdiction has not been taken by appellant/OP,anywhere in its written statement so filed before learned District Consumer Commission. Even no objection was raised at any stage during pendency of proceedings of complaint before learned District Consumer Commission. Thus, it is contended that appellant cannot be allowed to raise this technical contention,now for the first time,before this Commission, having already waived its right to do so before learned District Consumer Commission. It is contended that principle relief in complaint was to seek refund of amount, actually paid (Rs.17,69,100/-) along with interest. Besides this, ancillary relief claimed was: Rs.11,000/- towards litigation expenses and Rs.50,000/- as exemplary compensation/cost for causing mental agony harassment. It is urged that with this quality relief stated in complaint;District Consumer Commission has pecuniary jurisdiction vested in it, to entertain and try the complaint, asit was for amount,less than Rs.20.00 lacs. Learned counsel has relied upon judgment of Hon’ble Apex Court in case titled as “Harshad Chiman Lal Modi versus DLF Universal and another” AIR 2005 SC 4446 and on judgment dated 07.03.2018of Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case titled as “M/s Treaty Construction and other versus Ruby Tower Co-Op. Housing”. Besides this, learned counsel for complainant has urged that: even on merits, impugned order dated 26.05.2017 does not warrant any interference.
11. This Commission has critically analyzed the rival contentions. Legal position regarding pecuniary jurisdiction of learned District Consumer Commission is no more res-integra. In Harshad Chimman Lal Modi’s case (supra)the Hon’ble Apex Court has observed as under:-
“So far as territorial and pecuniary jurisdictions are concerned, objection to such jurisdiction has to be taken at the earliest possible opportunity and in any case at or before settlement of issues. The law is well settled on the point that if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage.”
12. In JagmitarSain’s case (supra);the Hon’ble Apex Court in para No. 7 to 9 has held as under:-
“7. Indisputably, it is a settled legal proposition that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior Court, and if the Court passes a decree having no jurisdiction over the matter, it would amount to nullity as the matter goes to the roots of the cause. Such an issue can be raised at any stage of the proceedings. The finding of a Court or Tribunal becomes irrelevant and unenforceable/ inexecutable once the forum is found to have no jurisdiction.Similarly, if a Court/Tribunal inherently lacks jurisdiction, acquiescence of party equally should not be permitted to perpetuate and perpetrate, defeating the legislative animation. The Court cannot derive jurisdiction apart from the Statute. In such eventuality the doctrine of waiver also does not apply.
8. In Sushil Kumar Mehta v. Gobind Ram Bohra (Dead) Thr. Lrs., (1990) 1 R.C.R. (Rent) 423: (1990) 1 SCC 193, this Court, after placing reliance on large number of its earlier judgments particularly in Premier Automobiles Ltd. v. K.S. Wadke&Ors., (1976) 1 SCC 496; Kiran Singh v. Chaman Paswan, AIR 1954 SC 340; and Chandrika Misir&Anr. v. Bhaiyalal, AIR 1973 SC 2391 held, that a decree without jurisdiction is a nullity. It is a coram non judice; when a special statute gives a right and also provides for a forum for adjudication of rights, remedy has to be sought only under the provisions of that Act and the Common Law Court has no jurisdiction; where an Act creates an obligation and enforces the performance in specified manner, “performance cannot be forced in any other manner.”
9. Law does not permit any court/tribunal/authority/forum to usurp jurisdiction on any ground whatsoever, in case, such a authority does not have jurisdiction on the subject matter. For the reason that it is not an objection as to the place of suing; “it is an objection going to the nullity of the order on the ground of want of jurisdiction”. Thus, for assumption of jurisdiction by a court or a tribunal, existence of jurisdictional fact is a condition precedent. But once such jurisdictional fact is found to exist, the court or tribunal has power to decide on the adjudicatory facts or facts in issue.”
13. In complaint case No.833 of 2020 titled as “M/s PyarideviChabiraj Steels Pvt. Ltd. versus National Insurance Company Ltd.& Ors.” decided on 28.08.2020, Hon’ble National Commission has observed as under in para 10 of its judgment:-
“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 2019 are very clear and does not call for any two interpretations.” In that case; consideration actually paid by complainant i.e.Rs.4,43,562/- was taken as criteria for deciding the contention qua pecuniary jurisdiction so urged before Hon’ble National Consumer Commission.
14. Above observation of Hon’ble National Commission has formed a formable and acceptable base to negate the contention of learned counsel for appellant centered on lack of pecuniary jurisdiction of learned District Consumer Commission. In present case; time the essence of agreement regarding completion of development/construction work of unit/flat. OP could not complete construction within time frame work. In complaint, the consumer/respondent has confined his principal relief to refund of Rs.17,69,100/- actually paid by him to appellant in relation to unit/flat. Agreement executed between the parties on 18.01.2014 (Annexure –A) reflects the total cost of unit as Rs.23,03,550/-, yet by applying the ratio laid down in M/s Pyaridevi’s case (supra); it is the actual amount admittedly paid by complainant/respondent i.e. Rs.17,69,100/- which would be the determiningfactor regarding pecuniary jurisdiction of learned District Consumer Commission.
15. If contention of the appellant regarding pecuniary jurisdiction is strictly construed then it stood traumatized for another reason that, “should the OP/appellant was to return the amount to complainant, without complainant having taken recourse to any legal remedy, then obviously and logically, OP would return only the amount actually received by it and not the amount of agreed cost of flat/unit in terms of Annexure-A appended to agreement dated 18.01.2014”.The reliance placed by learned counsel for appellant in Dr.JagmitarSain Bhagat’s case (supra) is unfounded and this judgment is also not attracted for obvious reason that: said case pertained to denial of retrial benefits to Govt. servant and it has been held that govt. servant cannot approach Consumer Forum under Consumer Protection Act for any of his retrial benefits (Gratuity, GPF) etc. Clearly in that context alone;the Hon’ble Apex Court has observed in a manner in paras No. 7 to 9 as mentioned above. Integral part of dispute before Hon’ble Apex Court was not of the alike nature and type of dispute, to which appeal relates to.
16. Matter does not end here. Admittedly, learned counsel for appellant could not point out anywhere from phraseology of appellant’s written statement so filed before District Commission regarding any plea, so takenexplicitly and specifically pertaining to lack of pecuniary jurisdiction of learned District Consumer Commission on the pedestal of actual value of the unit’s price agreed to be purchased. Hence, ratio of law laid down in Harsh Chiman Lal’s case (supra) is attracted and technical objection of pecuniary jurisdiction cannot be allowed to be taken at this stage. Hence, contention of learned counsel for appellant stood repelled.
17. Even, on merits, learned counsel for appellant/OP couldnot point out any illegality in the appreciation of evidence by learned District Consumer Commission. Evidence, as brought on record in shape of photographs Ex.P-10 to Ex.P-11 clicked through digital camera on 05.07.2016 proved that construction work of flat/unit was not completed by appellant/OP, till 05.07.2016,after passing of period of more than 2 years, including extended period of six months. Admittedly, receipts Ex.P-5 to Ex.P-9 reflect that on different dates complainant had deposited amount with OP/appellant and total amount so deposited was Rs.17,69,100/-.Developer/appellant cannot escape from its liabilities towards complainant. There is absolutely no illegality in the directions issued by learned District Consumer Commission against OP/appellant to refund this amount of Rs.17,69,100/- to complainant with interest @9% from the date of filing of complaint, till actual realization along with litigation expenses of Rs.5,500/-. Appellant has been rightly non-suited. Impugned order dated 26.05.2017 does not call for any interference by this Commission. It is accordingly affirmed and maintained. Present appeal being devoid of merits is hereby dismissed.
18. Statutory amount of Rs.25,000/- deposited by appellant at the time of filing of this appeal be refunded to it,after due identification and verification as per rules and on expiry of period meant for further appeal /revision, if any.
19. Application(s) pending, if any stand disposed of in terms of the aforesaid judgment.
20. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
21. File be consigned to record room.
Date of pronouncement: 07thJune, 2023
Naresh Katyal Judicial Member
Addl. Bench-II
