CONSUMER DISPUTES REDRESSAL FORUM (CENTRAL)
ISBT KASHMERE GATE DELHI
No. DF/ Central/ Date
CC/66/2016
Mr. Anil K. Kher,
S/o Late Sh. Ajudhia Nath Kher,
R/o F-256, New Rajinder Nagar,
New Delhi-110060. …..COMPLAINANT
VERSUS
Kolkata Metropolitan Development Authority
Through its Chairman
Unnayan Bhawan, VIP Block,
Mezzanine Flooe
Salt Lake, Kolkata-700091.
Chief Executive Officer
Kolkata Metropolitan Development Authority
Unnayan Bhawan, VIP Block,
Mezzanine Floor
Salt Lake, Kolkata-700091.
Secretary
Kolkata Metropolitan Development Authority
Unnayan Bhawan, VIP Block,
Mezzanine Floor
Salt Lake, Kolkata-700091. …..OPPOSITE PARTIES
CC/67/2016
Mrs. Komal Kher Sarkar,
W/o Dr. Debjyoti Sarkar,
R/o F-256, New Rajinder Nagar,
New Delhi-110060. …..COMPLAINANT
VERSUS
Kolkata Metropolitan Development Authority
Through its Chairman
Unnayan Bhawan, VIP Block,
Mezzanine Flooe
Salt Lake, Kolkata-700091.
Chief Executive Officer
Kolkata Metropolitan Development Authority
Unnayan Bhawan, VIP Block,
Mezzanine Floor
Salt Lake, Kolkata-700091.
Secretary
Kolkata Metropolitan Development Authority
Unnayan Bhawan, VIP Block,
Mezzanine Floor
Salt Lake, Kolkata-700091. …..OPPOSITE PARTIES
CC/68/2016
Mr. Kunal Kher,
S/o Sh. Anil K. Kher,
R/o F-256, New Rajinder Nagar,
New Delhi-110060. …..COMPLAINANT
VERSUS
Kolkata Metropolitan Development Authority
Through its Chairman
Unnayan Bhawan, VIP Block,
Mezzanine Flooe
Salt Lake, Kolkata-700091.
Chief Executive Officer
Kolkata Metropolitan Development Authority
Unnayan Bhawan, VIP Block,
Mezzanine Floor
Salt Lake, Kolkata-700091.
Secretary
Kolkata Metropolitan Development Authority
Unnayan Bhawan, VIP Block,
Mezzanine Floor
Salt Lake, Kolkata-700091. …..OPPOSITE PARTIES
Quorum : Ms. Rekha Rani, President
Mr. R. C. Meena, Member
ORDER
Ms. Rekha Rani, President
- The aforesaid complainants are taken up together for adjudication as parties are relatives and facts pleaded are the same. Instant complaints were filed by Sh. Anil K. Kher, Smt. Komal Kher Sarkar and Sh. Kunal Kher (in short complainant no. 1, complainant no. 2 and complainant no. 3 respectively) against Kolkata Metropolitan Development Authority (in short the OP) under Section 12 of the Consumer Protection Act, 1986 as amended up to date pleading therein that OP floated a scheme for allotment of 28 HIG Flats on lease hold basis through draw of lots proposed to be constructed under the East Kolkata Area Development Project, at a basic sale price of Rs. 3,900/- per sq. ft. Complainants booked one HIG Flat each by depositing booking fee of Rs. 1,50,000/-. Pursuant to the draw of lots held on 16.06.2012. Complainant no. 1 was informed by OP vide its letter dated 07.01.2014 that he had been allotted a HIG Flat No. 101/1 Block No. HATI along with Garage, whereas, complainant no. 2 and complainant no. 3 were unsuccessful in getting the allotment under the said project. Alleging violation of terms and conditions of the content in the brochure, complainants have sought refund of the booking amount which OP failed to refund despite service of the legal notice. Hence instant complaints were filed seeking direction to OPs to pay to the complainants a sum of Rs. 1,50,000/- each towards refund of the booking amount, Rs.1,11,000/- as interest on Rs. 1,50,000/- @ 24% per annum w.e.f. 30.08.2012 to 31.12.2015, Rs. 5,00,000/- as compensation for causing mental agony with interest @ 24% per annum.
- OP appeared and contested the claim vide its reply. Jurisdiction of this Forum is challenged. It is also stated that complainants are not consumers. Further it is stated that Sh. Anil K. Kher is the brother of Smt. Komal Kher Sarkar and father of Sh. Kunal Kher who all have booked 3 flats under the same scheme. It is stated as per terms and conditions of the booking the complainant and his family members cannot apply for more than one apartment in the same housing scheme and complainants committed breach of terms and conditions and therefore complainants are not consumers.
- We have perused the case file. We have heard Sh. S. S. Pandit, counsel for complainant and Sh. Sanjay Ghosh along with Ms. Rupali, counsel for OPs.
- OP has challenged the territorial as well as the pecuniary jurisdiction of this Forum. It is stated that OP is neither the resident nor carries on business within local limits of this Forum and therefore this Forum has not territorial jurisdiction.
It is also stated by OP in Para 11 of the affidavit in CC/68/2016, in Para 10 of its affidavit in CC/67/2017 and in Para 10 of its reply in CC/66/2016 that the booking amount had been refunded on 25.01.2017, 25.01.2017 and 20.05.2016 respectively.
- Complainant no. 1 himself has placed on record letter of OP dated 07.01.2014 which indicated the total price of the flat as Rs. 37,11,422/-.
- In Para 4 Page 2 of the instant complaints it is mentioned that the flat was allotted on lease hold basis, through draw of lots proposed to be constructed under the East Kolkata Area Development Project, at as basic sale price of Rs. 3,900/- per sq. ft. In the aforesaid letter dated 07.01.2014 the area of the flat is indicated as 903.21 sq. ft. so as per complainant himself total price comes to Rs.35,22,519/-.
- The area of the said flats in not mentioned in CC/67/2017 and in CC/68/2017. During the course of arguments, learned counsel for both sides were asked about the area of the flats. Both counsel submitted that area of the flats is identical in all the three cases. Therefore, the amount of all the three flats as per the complainants’ own cases is Rs. 35,22,519/- which is beyond the pecuniary jurisdiction of this Forum.
- As per Section 11 (i) of the Act the District Forum has pecuniary jurisdiction to adjudicate claims where the value of goods and services and the compensation claimed does not exceeds Rs. 20 Lacs.
9. Three member bench of National Commission in Ambrish Kumar Shukla & Ors Vs Ferrous Infrastructure Pvt. Ltd. in CC No. 97/2016 vide order dated 07.10.2016 observed that value of goods & services and value of relief claimed is to be seen for the purpose of pecuniary jurisdiction instead of value of alleged deficiency.
10. The same question again came up before National Commission in Rajkishore V/s TDI Infrastructure Ltd III (2017) CPJ 155. In that case total sale price of the property was above Rs. 20,00,000/- but complainant sought refund of Rs. 8,06,300/- charged in excess by the OP. Complaint was filed before State Commission which was dismissed vide order dated 16.02.2016 on the issue of pecuniary jurisdiction with liberty to file fresh complaint before District Forum. The complainants went in appeal contending that consumer dispute involved property whose value was above Rs. 20,00,000/-(Rs. Twenty Lacs only) National Commission allowed the appeal and following Ambrish Kumar Shukla (supra) observed that even if there was a small deficiency in the service availed by the complainant the total value of the said service is taken into consideration for the purpose of determining pecuniary jurisdiction.
11. In another case titled Daimler Financial Services India Vs Laxmi Naryan Biswal in First Appeal no. 1616 of 2017 decided on 30.08.2017 by Hon’ble National Commission judgment in Ambrish Kumar Shukla (supra) was again referred and following relevant part of the said judgment was quoted:
“Reference order dated 11.8.2016 Issue No. (i) 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 the deficiencies in the goods purchased or the services 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. For instance if a person purchases a machine for more than Rs.1.00 Crore, a manufacturing defect is found in the machine and the cost of removing the said defect is Rs.10.00 lakh, it is the aggregate of the sale consideration paid by the consumer for the machine and compensation, if any, claimed in the complaint which would determine the pecuniary jurisdiction of the Consumer Forum. Similarly, 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 lakh, the complaint would have to be filed before this Commission, the value of the services itself being more than Rs.1.00 Crore.”
12. The facts of the case in Daimler Financial Services India (supra) were that the complainant had purchased two Hywa Trucks with the financial help of Daimler Financial Services India by taking loan of Rs. 23,55,945/- for each vehicle. Out of the total loan of Rs. 23,86,995/- for each vehicle , the complainant had already paid the entire loan amount and had agreed to pay the full and final settlement on 05.04.2016 by making payment of Rs. 14,70,000/- and had received the possession of the vehicle on the same day with further condition that the complainant should withdraw the writ petition bearing no. WP (C ) 2307 of 2016 from the High Court of Odisha. Prior to liquidation of loan / expiry of the agreement the Daimler Financial Services India had seized the vehicle for which the complainant had approached the High Court of Odisha by way of filing a Writ Petition. The High Court had issued notice and the Daimler Financial Services India after receiving the notice had called the complainant for a settlement. As per the said settlement the complainant had already paid a sum of Rs. 14,70,000/- towards full and final settlement outstanding in respect of both the vehicles. Though the complainant in pursuance to the aforesaid settlement had paid the entire amount towards liquidation of loan and had withdrawn the Writ Petition before the High Court of Odisha, the Daimler Financial Services India taking advantage of the situation had not issued NOC to the complainant. The complainant hence filed a Consumer Complaint before the Odisha State Consumer Disputes Redressal Commission, Cuttack for not granting NOC which was termed illegal deficiency in service and unfair trade practice and for directing Daimler Financial Services India to issue NOC in respect of the two vehicles. The State Commission admitted the consumer complaint which was challenged before the Hon’ble National Commission. The Hon’ble National Commission observed that :
“ Counsel for the appellant has admitted that the respondent/ complainant had taken loan of Rs. 47.74 Lakh, the cost of service and compensation asked for is Rs. 95,000/-. Hence the aggregate value of the cost of service hired or availed of and the compensation claimed by the complainant certainly falls within the pecuniary jurisdiction of the State Commission”.
13. A two member bench of the Hon’ble National Commission in RP 3496/2017 in Gurmukh Singh v/s Greater Mohali Area dated 09.02.2018 while hearing against order dated 11.10.2017 in appeal no. 464/17 of State Commission, Punjab held that it is the total value of goods and services not partial amount deposited by the allotee which will determine the pecuniary jurisdiction. Since, the total price of the booked unit was Rs. 37,00,000/-, it was observed that District Forum did not have pecuniary Jurisdiction to adjudicate the matter.
14. The instant complaint be accordingly returned to the complainant to be presented before the appropriate forum having jurisdiction. Copy of the same be retained on record. Copy of this order be sent to the parties as statutorily required. File be consigned to record room.
Announced this Day of 2019.
