Karnataka

Bangalore 4th Additional

cc/3290/2017

Sri Sheetal Upadhye, - Complainant(s)

Versus

Managing Director, Provident Housing Limited, - Opp.Party(s)

03 May 2018

ORDER

 

 

 

 

 

 

Case called.

 

Orders on IA.no.I

 

ORDERS

 

This is an application filed on 02.03.2018 by Op under Sec.11 of the CP Act R/w Sec.151 of CPC to dismiss the complaint as the reliefs claimed by the Complainant fall beyond the pecuniary jurisdiction of this forum for the reasons stated in the accompanying affidavit.

 

            2. In the affidavit, Op submits that, the complaint has been filed, claiming among other reliefs, a direction to execute the sale deed and hand over possession of apartment no.SUN-II-5K-301 in ‘Provident Sunworth’ with undivided share in favour of the Complainant and loss and compensation of Rs.5,13,024/- with interest till the date of payment. Op further submits that, the value of the apartment and the undivided share in the land, which is the subject matter of the complaint, and the compensation claimed, exceeds the pecuniary jurisdiction of this forum. In view of the above, the complaint falls beyond the pecuniary jurisdiction of this forum. The Op further submits that, without prejudice to all legal and factual contentions open to the Op, with regard to the averments made in the complaint, the Op has filed the accompanying application questioning the jurisdiction of this forum in granting the reliefs sought for in the complaint as the complaint falls beyond the pecuniary jurisdiction of this forum. Hence prays to allow the application and dismiss the complaint.

 

            3. The Complainant filed objections to the said application denying the contents of the affidavit filed by Op in support of it. The Complainant has specifically stated that, he had sought total compensation of Rs.5,13,024/- towards deficiency of service, therefore this forum has pecuniary jurisdiction to try this complaint. Complainant further submits that, the contention of Op that the value of the apartment also should be taken in to consideration for determining the pecuniary jurisdiction is contrary to the provision of law. The Complainant further submits that, for the relief claimed by the Complainant, the value of the service should be considered and not the value of the apartment as contended by the Op. In identical facts of the case, the Hon'ble Haryana State Commission in Vinita Goyal vs. Unitech ltd., has taken the view that value of the apartment cannot be considered while determining the pecuniary jurisdiction of the forum. Hence on these grounds and other grounds prays for dismissal of IA.no.1.

 

4. Heard both side.

 

5. The points that arise for our consideration are:

1. Whether this forum has got pecuniary jurisdiction to try and dispose the complaint filed by the Complainant ?
2. What order ?

           

 

 

6.  Our answers to the above points are as under:

Point no.1: In the Negative   

  Point no.2: As per the final order for the following

 

REASONS

 

         7. Point no.1:  During the course of arguments, learned counsel for the Op draw our attention to para 16 of the complaint, which reads thus:

 

16. That the Complainant prays that this forum may be pleased to pass order directing the Op to pay a sum of Rs.5,13,024/- on account of loss and compensation claimed by the Complainant with interest from the complaint up to the date of payment and also to execute the sale deed and hand the possession of the premise citied in sale agreement dtd.06.11.14 and construction agreement dtd.06.11.14 and also such further relief as this forum may consider appropriate and fit the circumstances of the case.

 

8. Referring to the said contents of para 16 submits that, the Complainant herein has fought for multiple reliefs including for the execution of the sale deed and hand over the possession of the premise cited in sale agreement dtd.06.11.14 and Sunworth construction agreement dtd.06.11.14. Referring to this, further placed reliance on the contents of Sunworth construction agreement which is found at inkpage no.10, wherein the construction agreement entered in to between the Complainant and Op is for an amount of Rs.28,88,341/-. The sale agreement which is found at inkpage no.26, wherein the total sale consideration for schedule B property has been shown as Rs.10,82,000/-. If the Sunworth construction agreement is strictly construed, Complainant has entered in to the said construction agreement for an amount of Rs.28,88,341/-. Hence, submits that this forum has no pecuniary jurisdiction to try and dispose the complaint. In support of his contention, he placed reliance on the two reported decisions in Revision Petition no.885/2012, Country colonizers Pvt. ltd., vs. Priti Kapur & 2 ors, order dtd.13.07.12 and in CC.no.1269/2015, Padmini Malhotra vs. Era Land Marks (India) ltd., order dtd.15.12.15.

 

9. To rebut the contention taken by Op, Complainant submits that, complaint filed by the Complainant is very well maintainable in the light of the decision of Hon'ble Haryana State Commission in complaint no.19/2814, Vinita Goyal vs. Unitech ltd., order dtd.21.02.14, has taken the view that the value of the apartment cannot be considered while determining the pecuniary jurisdiction of the forum. Hence, submits to dismiss the IA.no.1. We have placed reliance on the decisions cited by the learned counsel for the Op and also learned counsel for the Complainant. In para 12 of the unreported decision cited by the learned counsel for the Complainant, wherein it is held that:

12. In the instant case, the Complainants are complaining of deficiency of service rendered by the Ops but when the jurisdictional point is raised the Complainants put forth the price of flat, that is, Rs.17,93,750/- for making out jurisdiction of this Commission. It is to be noticed that the sum of Rs.17,93,750/- is the price of flat. The flat does not fall within the definition of goods. Sec.2(i) of the Act states that goods means goods as defined in the Sale of Goods Act, 1930. Sec.2(7) of the Sale of Goods Act, 1930 which defines goods is reproduced as under:-

Goods means every kind of movable property other than actionable claims and money; and includes stock and shares, growing crops, grass and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale;

 

10. If the above contents of the order taken in to consideration, the flat does not fall under the definition of the goods. Sec.2(i) of the Act states that goods means goods as defined in the Sale of Goods Act, 1930. Sec.2(7) of the Sale of Goods Act, 1930 which defines goods is reproduced as “Goods means every kind of movable property other than actionable claims and money; and includes stock and shares, growing crops, grass and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale;” Further for assessing the value of service, the price of flat cannot be counted because the flat is an immovable property. But in the instant case, the Complainant he himself has produced the Sunworth construction agreement, wherein the cost is shown as Rs. Rs.28,88,341/-.  In addition to this, he has sought for the relief of direct the Op to pay a sum of Rs.5,13,024/- on account of loss and compensation with interest up to the date of payment and also to execute the sale deed and hand over the possession of the premise cited in sale agreement dtd.06.11.14 and construction agreement dtd.06.11.14. When such being the fact, the value of the schedule property is more than Rs.20 lakhs. Hence, this forum has no pecuniary jurisdiction to try and dispose the complaint. In this view of the matter, the said IA.no.1 filed by Op under Sec.11 of the CP Act R/w Sec.151 of CPC is deserves to be allowed and the complaint filed by the Complainant is liable to be dismissed with a direction to file the complaint before the competent forum having got jurisdiction to try. Accordingly we answered the point no.1 in the Negative.

 

        11. Point no.2: In the result we passed the following.

 

 

 

 

 

 

ORDER

 

         The IA.no.I dtd.02.03.2018 filed by Op under Sec.11 of the CP Act R/w Sec.151 of CPC is hereby allowed, consequently, complaint filed by the Complainant is dismissed as not maintainable before this forum, since this forum has no pecuniary jurisdiction to tray and dispose.

 

            2. Anyhow, an option is left open to the Complainant to get redress his remedy before the competent forum having got jurisdiction to try the same.

 

 

3. Looking to the circumstances of the case, we direct both the parties to bear their own cost.   

 

 

(Dictated to the Stenographer in the open forum and pronounced on 3^rd May 2018).

 

 

 

                         MEMBER                             PRESIDENT