BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 30^th DAY OF JULY 2022

ORDER

SRI.K.S.BILAGI, PRESIDENT

1. This complaint has been filed though Power of attorney holder of the complainant under section 35 of C.P.Act 2019 (herein after referred as “Act”) against the OPs for the following reliefs.

1. Direction to OP to complete the construction in terms of the construction agreement dated 21.08.2019 in all respects.
2. Direction to OP to restore electricity and water connection to the Villa of the complainant and further direction not to disconnect the same in future
3. Direction to OP to pay monthly damage amounting to Rs.50,000/- per month from 01.09.2020 till handing over the physical possession of the Villa complete in all aspects with amenities mentioned in the construction Agreement dated 21.08.2019
4. An amount of Rs.10 lakhs to be paid to the complainant towards compensation for the delay caused and mental agony
5. To refund additional amount which has been received by the OP towards 18 square feet of land and same has to be repaid by the OP to the complainant with interest at 24% p.a., from March 2017.
6. And to pass such other order/s as deemed fit by this Hon’ble Commission in the circumstances and expediency of the case.

2.The brief facts of the complainant are as follows:

The complainant has purchased a plot No.205 of Kadaagrahara village, Sarjapura Hobli, Anekar Taluk, Begnaluru from the OP and he being the absolute owner entered into a construction agreement dated 21.08.2019 for a consideration amount of Rs.51,34,691/-.

3.       The complainant has also paid Rs.49,34,691/- towards part of construction agreement and also paid Rs.35,30,400/- as sale consideration in respect of the plot.  He was liable to pay balance of Rs.2,66,365/- at the time of possession. In fact he is liable to pay balance only of Rs.1,75,000/-.

4.       It is further case of the complainant that the OP was supposed to complete the construction and hand over the possession within nine months from the date of execution of the sale deed. The OP by sending possession letter delivered the possession of the villa to the complainant.

5.       It is further case of the complainant that after taking possession of the villa, the complainant noticed that construction was not completed and villa was unfit for human occupation.  Even though he moved into villa he has been facing problems and OP got disconnected electricity supply illegally with the help of Henchmen.

6.       The complainant has not made any delay in payment of consideration.  In fact association of villa owners filed complaint against the OP in CC No.15/2021.  The act of OP amounts to deficiency of service.

7.       The complainant further contends that the initial agreement of March 2017 was in respect of 1471 sq. feet but the measurement of 1453 sq. feet only mentioned in the subsequent agreement.  Therefore, OP is liable to pay the amount mentioned in the complaint.

8.       Despite receipt of notice, the OP failed to appear before this Commission and OP has been placed exparte.

9.       The complainant files his affidavit evidence and relies on Ex.P1 to P11.  Heard the arguments of the advocate for complainant. Perused the records.

10. The points that would arise for our consideration are as under:-

1. Whether the complaint was maintainable before this Commission?
2. Whether the complainant proves deficiency of service on the part of the OP?
3. Whether the complainant is entitled to reliefs mentioned in the complaint?
4. What  order?

11. Our answer to the above points are as under:

       Point No.1:- Negative

      Point No.2 & 3:- Do not survive for consideration

       Point No.4:- As per the final order.

                                        REASONS

12.  Point No.1:    Even though the OP failed to appear before this commission, it is the duty of this commission to consider the merits of the case of the complainant.

13.     The complainant reiterated the facts pleaded in the complaint and relies on 11 documents.  It means the allegation made in the complaint, affidavit evidence and documents of the complainant remain unchallenged.

14.     We carefully perused the entire allegations in the complaint.  The complainant nowhere whispered what was the value for the pecuniary jurisdiction on the date of filing of the complaint i.e., on 02.03.2022.

15.     At this stage it is relevant to refer section 34(1) of Consumer Protection Act 2019, as amended on 30.20.2021 which reads thus;

“Subject to the other provisions of the Act and in pursuance of proviso to sub-section(1) of section 34 of the Act, the District Commission shall have jurisdiction to entertain complaints where the value of the goods or services paid as consideration does not exceed fifty lakh rupees”.

16.     According to the above provision the District Commission shall have the pecuniary jurisdiction to entertain the complaint where the value of goods or services is paid as consideration does not exceed Rs.50 lakhs as per amendment dated 30.12.2021.  when the above act was introduced the pecuniary jurisdiction of this Commission was upto one crore looking to the consideration paid for value of goods or services.

17.     In the entire complaint, the complainant has not shown what is the valuation for the purpose of pecuniary jurisdiction.  However the complainant has specifically stated in para 3 of the complaint that he has paid Rs.49,34,691/- to the OP towards the part of consideration of construction agreement and Rs.35,30,400/- towards sale consideration of the plot.  If these consideration are taken into consideration, the actual consideration paid was Rs.84,65,091/-.

18.     The complainant relies on Ex.P1 Construction Agreement dated 21.08.2019 in Clause No.IV the complainant has specifically stated that having satisfied about the title of the OP owner of schedule A property, he entered into construction agreement as OP was the owner.  The cost of construction is Rs.51,34,691/-.  As admitted by the complainant out of the agreed cost of construction he has paid Rs.49,34,691/-  to the OP. The last page of this agreement clearly indicates that the value of the land was Rs.35,30,400/-.  The complainant himself admitted this fact and payment of this amount in para 3 of his complaint as well as in para 2 of his affidavit evidence.  The allegations made in the complaint and averments made in the affidavit evidence are taken into consideration which clearly demonstrate that the complainant paid consideration of Rs.84,64,091/-.

19.     It is settled preposition of law that admitted facts need not be proved.  Villa cannot be constructed without a plot.  The complainant himself admitted that he purchased a plot under agreement of sale by paying consideration of Rs.35,30.400/- and he has also admits payment on behalf of consideration amount of Rs.49,34,691/- towards construction agreement.  If these two paid consideration are taken into consideration on the date of filing of this complaint, the complaint was not maintainable before this commission for want of pecuniary jurisdiction.

20.     The similar question was come up for consideration before the Hon’ble National Commission in CC/833/2020 M/s Pyaridevi Chabiraj Steels Pvt. Ltd., -vs- National Insurance Company Ltd., and three others, which reads thus;

The submission made by the learned Senior Counsel appearing for the Complainant cannot be accepted. It is no doubt true that under the Act of 1986, pecuniary jurisdiction was to be determined by taking the value of the goods or services and compensation, if any, claimed. Meaning thereby that the value of the goods or services as also the compensation is to be added to arrive at a conclusion as to whether the National Commission has the jurisdiction or not. This law was laid down by a three Member Bench of this Commission in Ambrish Kumar Shukla & 21 Ors. Vs. Ferrous Infrastructure Pvt. Ltd, I (2017) CPJ I (NC). Thus in the Act of 1986 it was “the value of the goods or services and the compensation claimed” taken into consideration while determining the pecuniary jurisdiction. For example, if a person has agreed to purchase a Flat/ Apartment/ Plot for about Rs.60,00,000/- and he is claiming refund as also compensation of Rs.50,00,000/- then the value will exceed Rs.1,00,00,000/- and the Consumer Complaint has to be filed before  the National Commission. Similar, would be the case of taking Insurance Policy of above Rs.1,00,00,000/-or may be below Rs.1,00,00,000/- but taking into consideration the premium paid and the compensation claimed if the value exceeds Rs.1,00,00,000/- the Consumer Complaint has to be filed before the National Commission.

9.       For ready reference the provisions of Sections 34 (1), 47 (1) (a) (i) and 58 (1) (a) (i) of the Act of 2019 are reproduced below:

“34. (1) Subject to the other provisions of this Act, the District Commission shall have jurisdiction to entertain  complaints where the value of the goods or services paid as consideration does not exceed one crore rupees:”

 “47. (1) Subject to the other provisions of this Act, the State Commission shall have jurisdiction—

(a) to entertain—

(i) Complaints where the value of the goods or services paid as consideration, exceeds rupees one crore, but does not exceed rupees ten crore:”

“58. (1) Subject to the other provisions of this Act, the National Commission shall have jurisdiction—

(a) to entertain—

(i) complaints where the value of the goods or services paid as consideration exceeds rupees ten crore:”

Wherein the complaint was filed before the national Commission under 2019 act claim more than 28 crores by paying about Rs.5,00,000/- by premium it was argued before the National Commission that referring the provisions of 1986 act that the complaint be maintainable before the National Commission.  The Hon’ble National Commission considering the payment of premium held that the payment of premium towards service only determines pecuniary jurisdiction of the commission irrespective of amount claim.  If this ratio along with section 34(1) is taken into consideration paid was Rs.84,65,091/-.  That payment of consideration alone determines the jurisdiction of Commission.  Therefore on the basis of amount claimed in this complaint the pecuniary jurisdiction of this commission cannot be determine.  On this ground along complaint is not maintainable before this Commission.

21.     The own admission of the complainant in para 4 of the complaint, para 3 of affidavit evidence that project will be completed possession was to be handover within nine months from the date of execution of sale deed.  Once again we carefully perused Ex.P1 the Construction Agreement clause 5 of Construction agreement indicates that the possession of the villa in schedule C will be delivered by the first party i.e., OP of the agreement holder i.e., complainant within nine months from the date of execution of sale deed in respect of schedule B property.  Schedule B property is plot No.205 measuring 1433 sq. feet.  Schedule C is the villa bearing No.S2, with built up area 2396 sq. feet.  Even though the OP in Ex.P3 letter of possession delivered the possession of villa on 07.03.2021 to the complainant.  It is not the case of the complainant that registered sale deed has been executed in his favour by the OP in respect of the C schedule B property.  When the parties agreed certain terms and conditions of the agreement, the complainant before execution of the sale deed is premature.  

22.     It is true that complainant has produced photos under Ex.P4 and copy of the police complaint in Ex.P5.  Even if these photos and Ex.P5 are taken into consideration, the complaint before this commission is not maintainable for want of pecuniary jurisdiction and it is premature.  Ex.P3 letter of possession in respect of immoveable property having value of more than Rs.100/- without registration cannot be considered as legal document.  Even though complainant admits about the taking of possession of villa under letter but in the absence of registered sale deed, the complainant is not entitle to reliefs as they are premature.  Hence we answer point No.1 in the Negative.

          23.     POINT NO.2 and 3: When the complaint is not maintainable for want of pecuniary jurisdiction and premature, these two points with regard to deficiency of service do not survive for consideration.

24.     POINT NO.4: Having regard to the finding on Point 1, the complaint requires to be dismissed as not maintainable as premature as well as for want of pecuniary jurisdiction.  In the result, we proceed to pass the following;

O R D E R

1. The complaint is dismissed as not maintainable as premature and want of pecuniary jurisdiction.
2. However liberty is given to the complainant to approach the jurisdiction Commission for necessary reliefs.
3. Furnish the copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 30^TH day of July, 2022)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1 : Nil

HAV*