Order No. 11 Dated-28.07.2022
The instant order is arising out of an application dated 13.01.2022 filed by the OPs 1 and 2 challenging the maintainability of the consumer case on the ground of pecuniary jurisdiction as well as limitation.
The impugned application was heard on 07.06.2022.
In course of hearing the Ld. Counsel for the OPs 1 and 2 submitted that pecuniary jurisdiction is to be determined on the basis of the value of goods purchased or the services hired or availed by the “Consumer” and also the interest and compensation claimed has to be taken into account for the purpose of determining the pecuniary jurisdiction and not the value or cost or removing the deficiency in the service. He further submitted that the father of the complainant, Ranjit Kumar Saha, since deceased was a Co-owner of KMC Premises No. 28/6/A, Bediadanga 2nd Lane, Kolkata-700039 and a Development Agreement dated 16.10.2014 was executed and registered between said Ranjit Kumar Saha, since deceased and his two brothers who are proforma OPs and the OP-2 sole Proprietor Of OP-1 M.S. Construction for construction of a G+4 storied building in the said premises with the ratio of 50:50. In terms of the Development Agreement, OP-1 is entitled to get the entire 2nd floor South Side Flat on the 3rd floor and North Side Flat on the 4th floor and 50 % of the car parking space on the North Side of the ground floor measuring about 800 sq. ft. more or less. The land owner also executed an Agreement dated 14.07.2016 between themselves regarding their allocation in the proposed G+4 storied building and they agreed to allocate rest portion of the North Side Flat on the 4th floor including 200 sq. ft. car parking space of the owners 50 % shares allocation to the OP-2 at a consideration of Rs. 38,00,000/-. Ranjit Kumar Saha died leaving behind his wife, two married daughters and the complainant as legal heirs and successors . The Ld. Counsel for the OPs 1 and 2 further contended that the mother and two married sisters of the complainant executed and registered three Deed of Gift dated 09.01.2020 amongst themselves in order to settle the share of the said owner’s allocation as per Development Agreement dated 16.10.2014. The value of the services hired and/or availed by the complainant is more than Rs. 1,20,000/-. Complainant did not disclose the value of the property allotted to his share, rather only mentioned the amount of compensation of Rs. 50,00,000/- to create the pecuniary jurisdiction. The present complaint is pre-matured as per clause 3 (c) of the Development Agreement dated 16.10.2014 and also barred by limitation. Pressing the aforesaid objection, the Counsel appearing for the OPs 1 and 2 has prayed that the complaint should be dismissed.
Per contra, the Ld. Counsel for the complainant submitted that the present complaint is filed within the limitation period and is also within the pecuniary jurisdiction. This commission has jurisdiction to adjudicate the present complaint. He further contended that U/s 107 (1) of CP Act, 2019 CP Act, 1986 is repealed and the points taken by the OPs 1 and 2 in the impugned application dated 13.01.2022 can be looked into at the time of final adjudication of the complaint case. In the light of the above submission, the Ld. Counsel for the complainant has prayed for rejection of the prayer dated 13.01.2022 of the OPs 1 and 2 with cost.
The factual score that is essential to be depicted that Ranjit Kumar Saha, since deceased, Sir Sanjit Kumar Saha and Sri Manik Lal Saha were the owners of KMC Premises No. 28/6/A, Bediadanga, 2nd Lane, Kolkata-700039 and they approached the OP-1/Firm for construction of a G+4 storied building over Dag No. 339 (Scheme Plot No. 7). Admittedly, the above named land owners executed and registered a Development Agreement dated 16.10.2004 with the OP-1/Firm and its sole Proprietor i.e. OP-2 with the ratio of 50:50. It is also true that the complainant, his mother and two married sisters being the successors and legal heirs of Late Ranjit Kumar Saha are jointly entitled to get 30 % of owners allocation on the proposed building inherited by Late Ranjit Kumar Saha. Remaining three heirs of Late Ranjit Kumar Saha transferred their share in the property to the complainant by executing three registered Deed of Gift. Thus, the complainant became the owner of 30% share of owners allocation as per Development Agreement. The OP-2 being the sole proprietor of OP-1 failed to deliver possession of the owner’s allocation within the stipulated period of 36 months in terms of the Development Agreement to the complainant. It is also that there is a force measure clause in the Development Agreement.
So far as the question of maintainability is concerned, it is relevant to mention that the complainant claims Rs. 50,00,000/- (Rupees fifty lacs) only as compensation against the OPs 1 and 2 on the ground of delay in hand over possession of 30 % share of the owner’s allocation and also for causing mental agony and pain. Section 34 (1) of the CP Act, 2019 reads as follows:-
“Subject to other provisions of this Act, the District Commission shall have jurisdiction to entertain complaints where the value of goods or services paid as consideration does not exceed one crore rupees”.
Provided that where the Central Government deems it necessary so to do, it may prescribed such other value, as it deems fit. In the context, it is pertinent to mention here that subsequently, the Consumer Affairs Department, Government of India vide its notification published in the official Gazette decreased the value of the goods or services paid as consideration does not exceed Rs. 50,00,000/- (Rupees fifty lacs) with regard to entertain complaints before the District Commission.
It is true that Consumer Protection Act, 1986 repealed and its place a new act came into force called as “The Consumer Protection Act, 2019”. It is also true that the complainant did not disclose the value of his 30 % share of owners allocation on the G+4 storied building in the complaint petition rather he only prays for compensation of Rs. 50,00,000/- against the OPs 1 and 2. From the above, it is clear that it is wrong with regard to determination of jurisdiction violating section 34 (i) of the CP Act, 2019.
The object and purpose behind the legislation of the act is to protect a consumer and also to prevent unscrupulous activities in the business for taking undue advantage of weak position, in which the consumers are placed. The main object of the CP Act is to provide better protection of the interest of the consumer to achieve that purpose. In Laxmi Engineering Works vs. PSG Industrial Institute reported in 1995 AIR, SCW 2114=AIR 1995 SC 1428=84 Comp.Cas 121 (SC)=1995 3SCC 583, it was observed that object of the Act is to protect the consumer from the consumer from the exploitative and unfair practices of trade and to provide inexpensive, easily accessible and speedy remedy. Consumer Protection Act, 1986 was passed and made effective in 1987. After gaining experience, new Consumer Protection Act, 2019 was passed (2019 act for short). The Act has been partially made effective on 20.07.2020. The earlier Consumer Protection Act, 1986 has been repealed and there are many new innovations in the 2019 Act. According to new Act, the DCDRC shall have jurisdiction to entertain complaints where the value of the goods or services where the value of goods or services paid as consideration does not exceed paid as consideration does not exceed Rs. 50,00,000/-. Thus, the decision reported in volume 1 (2017) CPJ 1 (NC) in Ambrish Kumar Shukla & (21) others Vs. Ferrous Infrastructure Pvt. Ltd. is not applicable in view of enactment of the Consumer Protection Act, 2019. It is true that the complainant did not disclose the value of the goods or services paid as consideration in the complaint petition.
For the aforesaid discussion, we are the view that the consumer complaint is not maintainable in its present form and in law. Accordingly, the prayer dated 13.01.2022 of the OPs 1 and 2 is allowed on contest leaving the parties to bear their respective costs.
Considering the technical defect in the complaint petition, we permitted the complainant to file afresh complaint on the same cause of the action, if not barred by any law and if the value of the goods or services paid as consideration does not exceed Rs. 50,00,000/-.
Thus, Miscellaneous Application being No. 23/2022 is disposed of.
Consequently, the consumer case is dismissed.
Interim order dated 05.04.2021 passed in MA No. 309/2021 is hereby vacated.
Miscellaneous Application dated 13.01.2022 filed by the OPs 1 and 2 for vacating and/or stay of the order dated 05.04.2021 is infractuous in view of dismissal of the consumer case.
Thus, MA being No. 24/2022 is disposed of.
