CC No.1919.2017

Filed on 11.07.2017

Disposed on.06.10.2018

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BANGALORE – 560 027.

DATED THIS THE 6^th DAY OF OCTOBER 2018

CONSUMER COMPLAINT NO.1919/2017

PRESENT:

Sri.  H.S.RAMAKRISHNA, B.Sc., LL.B.,

                        PRESIDENT

                  Smt. L.MAMATHAB.A. (Law), LL.B.,

                           MEMBER,

     V/S

ORDER

BY SRI.H.S.RAMAKRISHNA, PRESIDENT

1. This Complaint was filed by the Complainants on 11.07.2017 U/s 12 of the Consumer Protection Act, 1986 and praying to pass an Order directing the Opposite Parties to reimburse a sum of Rs.17,03,772/- which it has collected from the Complainants till date towards part sale consideration and processing charges, to pay the Complainant a sum of Rs.45,433/- on account of the interest rate calculated at the rate of 8%  p.a from the date of the last payment i.e., 7^th March, 2017, till the date of filing the complaint and direct the Opposite Party No.1 to compensate the Complainant to an extent of Rs.2,00,000/- on account of mental, physical trauma.  
2. The brief facts of the complaint can be stated as under:

In the Complaint, the Complainants alleges that the Complainants were in search of a house.  During this search that an elaborate advertisement of 1^st Opposite Party’s supposedly “exclusive” gated community with row houses and a tenacious follow up by its sales executives prompted the Consumer Protection Act, 1986s to evince interest in the said project.  On the assurance of the Sales Executive of the Opposite Party No.1, the Complainant invested in one of the row houses for their end use and it was in this context that they remitted an advance amount of Rs.5,00,000/- on 17^th day of February, 2017.  The 1^st Opposite Party reverted with a communication dated 21^st February, 2017, portraying the cost break up and indicating the total cost of a row house designated as Unit No.12, Type ‘Q’, in a gated community.  Thereafter that the parties entered into an ‘Agreement for Sale’ and a ‘Construction Agreement’ on the 23^rd day of February, 2017 and Clause-8 of the latter document clearly indicated that the project would be completed and handed over the Complainants in a habitable condition within 11 months from such date.  The Agreement for Sale and the Construction Agreement were drafter in the sole interest of the 1^st Opposite Party is apparent from the fact that Clause-7 of the former document provided a forfeiture clause, enabling the 1^st Opposite Party to forfeit a sum equi9valent to 20% of the sale consideration in the event of the Complainants delaying payment of any installment for a period in excess of 2 months.  While there was no reasonable apprehension of there being a default on the Complainant’s side, caution prompted them to have a discussion with the 1^st Opposite Party and the forfeiture clause was modified and thus confined to a maximum of Rs.10,00,000/-.  The Complainants also arranged for a credit facility from the 2^nd Opposite Party and this arrangement was also ratified by the 1^st Opposite Party, as would be apparent from a Tripartite Agreement dated 4^th March, 2017, whereby, the Complainants were assured of a loan amount summing up to Rs.1,40,00,000/-.  The Complainant’s would have never defaulted in the payment schedule and in fact, the Complainants have paid a further sum of Rs.4,10,195/- on 6^th March, 2017 and a sum of Rs.7,93,577/-.  From the very outset, they had clearly intimated the 1^st Opposite Party, that the 2^nd of them being a salaried individual, they will have to secure credit facility from their bankers and in particular, the 2^nd Opposite Party Representatives of the 1^st Opposite Party had also informed the Complainants that their project has been approved by many private and national banks, including HDFC Bank and that securing finances for their project would be a cake walk.  The 2^nd Opposite Party, having entered into an agreement in principle to lend credit facility to the Complainants, had by then initiated its own enquiry into the subject project.  It was post such enquiry that the Complainants were informed of the fact that the 1^st Opposite Party’s project was not of a recent origin.  In fact, the Complainants have been reliably informed by the 2^nd Opposite Party that the said project was commenced quite a few years earlier and was shelved for multiple reasons, which inter-alia included the 1^st Opposite Party’s inability to source finances for its completion.  This prompted the Complainants to pay a second and discreet visit to the project site and their fears were confirmed when they saw a skeletal staff whiling their time away and there being no substantial activity going on at the construction site.  These factors have prompted the Complainants to withdraw their decision and as such, the Complainants have promptly indicated their intentions to cancel the aforementioned ‘Agreement for Sale’ vide an electronic mail dated 19^th March, 2017.  It would be relevant to mention that the Complainant’s act would be termed as a “cancellation” and not a “default”, in the particular context of Cluase-7 of Clause-7 to the aforesaid “Agreement for Sale”.  It would also be relevant to mention that there would have been no “default” on the Complainant’s part owing to their financial background and their sound credit ratings.  The Complainants were in for a rude shock when the 1^st Opposite Party caused a communication dated 24^th March, 2017, informing the former that they had invoked Cluase-7 of the Agreement for Sale referred supra and as such, had forfeited a sum of RS.10,00,000/-.  The Complainants have immediately retorted by way of a reply letter dated 1^st April, 2017, stating all the aforesaid facts and also asserting that the 1^st Opposite Party had no right of “forfeiture” of the advance amount or any part thereof.  The aforesaid facts would clearly reveal the fact that the 1^st Opposite Party has deliberately failed to adhere to its commitments as a service provider.  The 1^st Opposite Party’s services are riddled with deficiencies.  Hence this complaint.

3. Even though, notice was served on the Opposite Party No.2, but Opposite Party No.2 fails to put their appearance, hence placed ex-parte.

4. In response to the notice, the Opposite Party No.1 put their appearance through their counsel and filed their version. In the version pleaded that the complaint is false, frivolous and vexatious, the same has been filed with malafide intentions of harassing the 1^st Opposite Party.  The Complainants have not approached this Hon’ble Forum with clean hands.  This Forum has no Jurisdiction to try and dispose of the complaint.  This Forum does not get Jurisdiction to entertain this complaint for want of Pecuniary Jurisdiction.  There is no deficiency of service as alleged on the part of the Opposite Party No.1.   The alleged relief sought by the Complainants at the present proceedings comes under the purview of the Civil Court and the Complainants cannot seek for such relief before this Hon’ble Forum.  The Complainants to avoid the payment of the Court fee has chosen to file the present complaint instead of filing of the suit before the Civil Court.  In Clause-8 of the Construction Agreement,  states that within 11 months from February 2017 and that the Opposite Party No.1 is entitled for 11 months grace period for completion of the constructions of the Row House i.e., they have time till June 2018 and the time indicated has not expired, the clearly demonstrate that the Complainant is pre-determining or assuming things and there is no deficiency of service as alleged and the very complaint is premature and denied all other allegations made in the complaint as false and prays to dismiss the complaint.

5. The 2^nd Complainant, Sri.Murugappan Palaniappan filed his affidavit by way of evidence and closed his side.  The 1^st Opposite Party, Sri.Mallesha S.M filed his affidavit by way of evidence.   Even though, notice was served on the Opposite Party No.2, but the Opposite Party No.2 fails to put their appearance, hence placed ex-parte. 

6. The learned Counsel for 1^st Opposite Party instead for decide this matter on the point of Pecuniary Jurisdiction.  For that reason, this Forum heard argument of both counsel regarding the Pecuniary Jurisdiction. 

7.      The points that arise for consideration are:-

1. Whether this Forum has got Pecuniary Jurisdiction to entertain this complaint?
2. Whether the Complainant has proved the alleged deficiency in service by the Opposite Party ?
3. If so, to what relief the Complainant is entitled ?

8.     Our findings on the above points are:-

                  POINT (1)                  :-   Negative

POINT (2)                  :-   Will not survive for

                                              consideration

POINT (3)                  :-   As per the final order

REASONS

9.   POINT NO.1:-  The learned Counsel for the Opposite Parties argued that this Forum have no Pecuniary Jurisdiction to entertain this complaint.  Since the Complainant agreed to purchase Row House for a sum of Rs.1,40,00,000/- that includes purchase of site as well as construction, to that extent the Complainants have entered into two Agreement on 23.02.2017 with Opposite Party No.1, one is Agreement of Sale and another one is Agreement of Construction.  Thereby, this Forum have no Pecuniary Jurisdiction to entertain this complaint.

10. On the other hand, the learned Counsel for the Complainants argued that this Forum has got Jurisdiction to entertain this complaint.  Nodoubt the Complainants on 23.02.2017 entered into an Agreement of Sale and Construction of Agreement with Opposite Party No.1 for a total consideration of Rs.1,40,00,000/-, but the relief claimed in this complaint is only Rs.17,03,772/- i.e., advance amount paid by the Complainants to the 1^st Opposite Party.  So the prayer of the Complainants is not more than Rs.20,00,000/-, thereby this Forum has got Pecuniary Jurisdiction to entertain this complaint.  In support of their argument, they relied upon a decisions reported in 1. DLF Universal Limited V/s Tarun Aggarwal 2. Ambrish Kumar Shukla & others V/s Ferrous Infrastructure Private Limited. 

11.  With this argument and on perusal of record, it is not in dispute that the Complainants on 17.02.2017 by remitting advance amount of Rs.5,00,000/- purchased Row House in the proposed project of 1^st Opposite Party.  Further it is not in dispute that on 23.02.2017 the Complainants entered into Agreement of Sale and Agreement of Construction with 1^st Opposite Party and further the Complainants have paid total sum of Rs.17,03,772/- as advance.  As looking into the Agreement of Sale entered between the parties, it is clear that the Complainants agreed to purchase ‘B’ Schedule Property for a sum of Rs.91,01,955/- and as per the Construction Agreement, the Complainants agreed for construction of Row House for a sum of Rs.79,35,767/-, therefore altogether the Complainants have agreed to purchase of Row House for total consideration of Rs.1,70,37,772/-.  Admittedly, the said amount i.e., Rs.1,70,37,772/- is exceeding the Pecuniary Jurisdiction of this Hon’ble Forum.  As per Section-11, this Forum have Pecuniary Jurisdiction, the value of the goods or services is not exceeding Rs.20,00,000/-.  On careful perusal of the law laid down in 1. DLF Universal Limited V/s Tarun Aggarwal 2. Ambrish Kumar Shukla & others V/s Ferrous Infrastructure Private Limited.  The said law are not helpful to the case of the Complainants.  On the other hand, as law laid down in Gurmukh Singh V/s Greater Mohali Area Development Authority and another 2018(2) CPR 111(NC).  In order to determining the Pecuniary Jurisdiction of a consumer fora the total value of goods or services should be taken so also in the present case the value of the total service is more than One Crore i.e., behind the Pecuniary Jurisdiction of this Hon’ble Forum.  Hence, this Forum have no Pecuniary Jurisdiction to entertain this complaint.  Hence, this point is held in ‘No’. 

 12. POINT NO.2 :- In view of our findings on point No.1 is held in Negative i.e., this Forum have no Pecuniary Jurisdiction to entertain this complaint.  The question of considering the point No.2 will not survive.  Hence, this point is held in accordingly.

13. In the result, for the foregoing reasons, we proceed to pass the following order:

ORDER

Since lack of Pecuniary Jurisdiction to entertain the complaint, it is ordered to return the complaint to the Complainant to present the same before proper and Jurisdictional Forum.

Supply free copy of this order to both the parties. 

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, dt.6^th day of October 2018).

MEMBER                                                PRESIDENT

LIST OF WITNESSES AND DOCUMENTS

 Witness examined on behalf of the Complainant:

1. Mr.Murugappan Palaniappan, who being the                             2^nd Complainant has filed his affidavit.

 List of documents filed by the Complainant:

1. Copy of the advance receipt dated 17.02.2017.
2. Copy of the communication letter dated 21.02.2017.
3. Copy of the Sale Agreement dated 23.02.2017.
4. Copy of the Constructed Agreement dated 23.02.2017.
5. Copy of the Communication Letter dated 25.02.2017.
6. Copy of the Tripartite Agreement dated 04.03.2017.
7. Copy of the Receipt dated 06.03.2017.
8. Copy of the Receipt dated 07.03.2017.
9. Copy of the Electronic Mail dated 19.03.2017.
10. Copy of the Communication Letter dated 24.03.2017.
11. Copy of the Reply letter dated 01.04.2017.

Witness examined on behalf of the Opposite Parties:

1. Sri.Mallesha S.M of Opposite Party by way of affidavit.

List of documents filed by the Opposite Party:

List of documents filed by the Opposite Party:

1. Authorization letter dated 10.11.2017.
2. Letters dated 2^nd March 2017, 15^th March 2017, 17^th March 2017.
3. Email dated 16.02.2017, written by the Opposite Party No.1 to the Complainants.

MEMBER                                                                             PRESIDENT