Complainants through Lrd. Adv. Nikam,
Opponents through Adv. Rahul Gandhi
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Per : Mr. V. P. Utpat, President Place : PUNE
** J U D G M E N T **
(20/01/2014)
This complaint is filed by the flat purchaser against the builder and developer under section 12 of the Consumer Protection Act, 1986 for deficiency in service. The brief facts are as follows,
1] The complainant is a resident of Aundh, Pune – 7. The opponent is dealing in the business of construction. The opponent has started construction of ‘Prakriti Scheme’ at Survey No. 15 of Balewadi, Pune. The complainant was interested in purchasing flat no. G-701 from the said scheme. He paid Rs. 2,00,000/- on 28/3/2009 by way of booking amount. On 8/4/2009 agreement was executed. However the registration process was completed on 16/4/2009. The consideration of the flat was fixed as Rs.27,51,000/-It is the case of the complainant that opponent has not delivered possession of the flat as per terms and conditions of the agreement. The complainant has obtained loan from State Bank of India. Cheque was issued to the opponent but the possession of the flat is not delivered. Hence that amounts to deficiency in service. The complainant has prayed for delivery of the possession of the flat, as well as compensation on the ground of delay and cost of the litigation.
2] The opponent has filed an application for framing preliminary issue as regards jurisdiction. It is the case of the opponent that as the price of the flat is Rs. 27,51,100/-, hence District Consumer Forum has no jurisdiction to adjudicate the dispute. The has prayed for framing preliminary issue as regards pecuniary jurisdiction.
3] The complainant has resisted the said application. According to the complainant, even though the value of the flat is Rs. 27,51,100/-, that can not be considered for the purpose of the jurisdiction, as the opponent is a builder and he is under obligation to comply the terms and conditions of the agreement and this Forum has jurisdiction to entertain the complaint.
4] After considering the pleadings and scrutinizing the documents, which are produced on the record by both the parties, and hearing arguments of both the counsels, the following points arise for determination. The points, findings and the reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1. | Whether this Forum has pecuniary jurisdiction to entertain the present complaint? | In the negative |
2. | What order? | Complaint is returned to the complainants for presenting it before the proper Forum. |
REASONS :-
5] The learned Advocate for the complainant argued before this Forum that, even though the price of the flat is above 20 lacs, it can not be considered for the purpose of determination of the jurisdiction, as the opponent is under obligation to deliver the possession of the flat as per the terms and conditions in view of provisions of Maharashtra Ownership Flat Act. In that context, learned Advocate for the complainant relied upon the judgment “Rajaram Bhagwati Tiwari V/S The Municipal Corporation…” reported in 2004 (3) MhLj 290. It reveals from the facts of the said Ruling that the said proceeding was as regards relief of joint possession. In that regard, it has been observed that, even though jurisdiction of Bombay City Civil Court was up to Rs. 50,000/-, the said court has jurisdiction to entertain said dispute, as the complainant was seeking joint possession of the flat and relief falls under section 6(iv)(d) of Bombay Court Fees Act. The present dispute before this Forum is as regards delivery of the exclusive possession. Consumer Forum has jurisdiction to adjudicate the dispute as regards deficiency in service and defects in the goods. The complainant has asked possession of the flat.
The learned Advocate for the complainant has also placed reliance upon judgment of State Commission, West Bengal in case no. CC/08/66 between “Dilip Kumar Sil V/S The Kolkata Municipal Corporation”. In that proceeding it has been observed by Hon’ble Commission that the value of the flats are not to be considered for the purpose of finding pecuniary jurisdiction. It reveals from the facts of the said case that the complainant has not sought possession of the flat and the complaint was as regards compensation of Rs. 10 lacs. Hence, there is no question of considering the cost of the flat while determining pecuniary jurisdiction.
6] The learned Advocate for the opponent argued before the Forum that in the recent judgment of Hon’ble National Commission in consumer case no. 93/2012 between “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.40,75,000/-, 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.
7] The reliance can be placed upon the Judgment of 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 for 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] As regards the pecuniary jurisdiction reliance can also 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] In the light of the observations of the above rulings, it is crystal clear that the claim of the complainant is beyond the pecuniary jurisdiction of this Forum. Hence, this Forum held that this Forum has no jurisdiction to entertain the present complaint. This Forum answer accordingly and pass the following order.
** ORDER**
1. The complaint is returned to the complainant
for presenting the same before appropriate
Forum within 6 weeks from the date of order.
2. In the peculiar circumstances, there is no order
as to the cost.
3. Copies of this order be furnished to the parties
free of cost.
Place – Pune
Date- 20/Jan./2014
