Advocate Likhit Gandhi for
the Complainants
Advocate Sunita P. Kinkar for
the Opponents
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Per Hon’ble Shri. V. P. Utpat, President
:- JUDGMENT :-
Date – 6th May 2013
This complaint is filed by flat purchasers against developer and builder u/s 12 of the Consumer Protection Act, 1986 for deficiency in service. Brief facts are as follows-
[1] Complainants are husband and wife. They have booked flat with the Opponent which is situated at S.No. 59 of Ambegaon Bk, Tal. Haveli, Pune. As per the Agreement dated 16/6/2008 area of the flat was 81.84 sq.mtr alongwith terrace admeasuring 7.04 sq.mtr., saleable area was 106.65 sq.mtr i.e. 1147.55 sq.Feet including car parking. The complainants had agreed to purchase the flat for consideration of Rs.44,03,200/-. They have also agreed to pay stamp-duty and registration charges of Rs.1,20,000/- plus maintenance charges of Rs.2,00,000/-. In all complainant had agreed to pay Rs.47,23,200/-.
The construction of the scheme was started in the month of February 2008. As per clause No.3 of the Agreement the amount of consideration was to be paid as per the stages of progress of the construction work. The Opponent also agreed to give concession of Rs.100/- per sq.ft if the amount is paid in advance. The concession amount was Rs.1,14,755/-. Relying upon the promise of the Opponent the complainant had obtained loan from ICICI Bank to the tune of Rs.39,35,000/- and paid the said amount to the Opponent on 2/7/2008. The complainants have paid Rs.1,00,000/- at the time of booking on 12/2/2008. Subsequently they had paid Rs.1,00,000/- through ICICI Bank on 28/5/2008. The complainants have paid Rs.41,35,000/- in all. However the Opponent had not deposited three cheques of Rs.86,300/- dated 20/6/2008, Rs.1,00,000/- dated 20/6/2008 and Rs.2,00,000/- dated 20/6/2008. Complainants had obtained loan of Rs.40,00,000/- from the Bank and agreed to pay interest upto 15%. The E.M.I. is Rs.44,216/-. The Opponent agreed to deliver possession of the flat on or before 31/12/2009 with grace period of six months. However the Opponent has not delivered the possession of the flat till the date of filing of complaint i.e. 12/12/2011. There is substantial delay in delivery of possession. That amounts to deficiency in service. The Opponent has not delivered the possession hence complainants have asked damages of Rs.12,00,000/- from the Opponent. They have also asked possession of the flat from the Opponent.
[2] The Opponent has resisted the complaint by filing written version in which it has denied the contents of the complaint in toto. According to the Opponent the complainants have failed to pay balance amount hence Agreement between the parties is terminated. As regards rest of the payment there is no dispute between the parties. According to the Opponent there was hurdle in completion of the project as Opponent was required to revise its plan and due to delay in the Notification on behalf of the State Government the delay was caused for completion of the construction. The Opponent has further contended that this Forum has no jurisdiction to try and entertain the complaint and it has prayed for dismissal of the complaint.
[3] Considering the pleadings of both parties and scrutinizing the documentary evidence which is on the record and hearing the argument of both Counsel following points arise for my determination. The points, findings and reasons thereon are as follows-
S.No. | POINTS | FINDINGS |
1 | Whether this Forum has jurisdiction to entertain, try and decide the present complaint ? | In the negative |
2 | Whether Opponent has caused deficiency in service ? | Does not survive |
3 | What order ? | Complaint is returned to the complainant for presenting the same in proper Forum |
REASONS-
As to the Point Nos. 1 to 3-
The learned Advocate for the Complainant argued before me that this is a clear cut case of deficiency in service on the part of the Opponent as the complainants had paid entire consideration amount. The Opponent has malafidely failed to present the cheques which were issued by the complainants and this fact is referred in the notice reply of the Opponent. Eventhough the Opponent agreed to deliver the possession of the flat on or before 31/12/2009, the Opponent has not delivered the possession of the flat evenafter ending of grace period of six months. It is further argued that the excuses shown by the Opponent as regards revising of plan and waiting for Notification from the Government cannot be said as hurdle for completion of the project as it reveals from the record that the Opponent has revised the plan for its own purpose and the construction of building was increased from 7th floor to 12th floor. In that circumstances there was no fault on the part of the complainant for delaying the project. It is also pointed out by the learned Advocate for the Complainant that the reasons for delay which have been shown in the written version were false and concocted as there was no scarcity of sand, labour or any other problems. There is no record produced on behalf of the Opponent to show that they have cancelled the bookings of other flat purchaser. On the contrary they have revised their project. This indicates that the reasons stated by the Opponent for delay in delivery of possession are false and concocted.
Per contra the learned Advocate for the Opponent argued before me that as there was delay in Notification of Government the plan could not be revised and this fact was beyond the control of the Opponent. It is also argued that the non Maharashtrian labors had left the work due to agitation made by the political parties. Hence construction work was stopped and there was no fault of Opponent for delay in the said project. The second limb of argument on behalf of the Opponent is that this Forum has no pecuniary jurisdiction to entertain the present complaint as the valuation of the flat is Rs.47,23,200/-. The complainants have also asked damages of Rs.12,00,000/- as well as compensation on the ground of physical and mental sufferings and costs of the proceeding. The complainants have sought possession of the flat. In such circumstances this complaint cannot be entertained by the present Forum.
Before considering the merits of the case it is necessary to decide the point of jurisdiction and if this Forum has no jurisdiction to entertain the complaint then this Forum cannot pass any verdict on merit as regards remaining issues. Section 17 of the Consumer Protection Act, 1986 is relating to the pecuniary jurisdiction of the Forum. The said section laid down as follows-
“17. Jurisdiction of the State Commission – [(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 and compensation, if any, claimed [exceeds rupees twenty lakhs but does not exceed rupees one crore];”
The learned Advocate for the complainants argued before me that as per the provisions of Maharashtra Ownership Flats Act there are obligations on builder to execute the agreement as well as to deliver the possession of the flat. In such circumstances irrespective with the value of the flat this Forum has jurisdiction to entertain the complaint as the Forum has to decide deficiency in service and it has no concern with the value of the flat. In that context the learned Advocate for the complainant relied upon the ruling in case of Maria Philomina Pereira vs. M/s Rodrigues Construction reported in AIR 1991 Bombay 27. That suit was relating to the mandatory injunction as regards the flat which was filed in City Civil Court, Mumbai and City Civil Court has returned the plaint by holding that the consideration mentioned in the agreement is above Rs.87,000/-. In that ruling it has been observed that where the flat purchaser wants the promoter to enforce the obligations under MOFA Act. The suit was relating to mandatory injunction and in that context it is observed that the Civil Court has jurisdiction to entertain the said suit.
It is significant to note that the complainant has sought possession of the flat in the present complaint. It cannot be said by any stretch of imagination that the relief of possession is equivalent with the enforcement of the obligations. Hence the ruling which is cited by the learned Advocate for the complainant is not helpful to adjudicate the dispute between the parties.
As regards the point of jurisdiction the reliance can be placed upon the Judgment of the Hon’ble State Consumer Disputes Redressal Commission, Maharashtra in complaint No. 08/159 between Mr. Jayesh G. Shah v/s. M/s. Anamika Real Estate Pvt. Ltd. Co. decided on 6/1/2012. That complaint was also relating to the deficiency in service on the part of the developer and builder for not handing over possession of the flat agreed to be purchased by the complainant. The complainant had valued that complaint for Rs.1 Crore and asked further compensation of Rs. 5 lakh for mental agony and torture and also asked compensation @ Rs.25,000/- per month for delayed possession from the date of filing of complaint till possession is received. In that complaint it has been observed that the valuation of the flat as well as compensation and deficiency of service is more than one crore then the State Commission has no jurisdiction to entertain the said complaint and the complaint was returned to the complainant for presenting the same before the Hon’ble National Consumer Disputes Redressal Commission.
In the same context reliance can be placed upon the ruling of Hon’ble National Consumer Disputes Redressal Commission in case of Kishori Lal Bablani v/s. Aditya Enterprises & Ors. reported in (2012) CPJ 682 (NC). In that ruling it has been observed that the valuation of the flat which has been shown by the complainant is Rs.40,70,000/- hence the Hon’ble National Consumer Disputes Redressal Commission has no jurisdiction to entertain the said complaint and it should be presented before the State Commission and that complaint was returned to the complainant for presenting the same before the proper Forum.
In the light of the above discussion as well as considering the legal position I held that District Consumer Disputes Redressal Forum has no jurisdiction to entertain the present complaint as the valuation of the property of which possession is referred as deficiency in service is definitely more than Rs. Twenty Lakh.
As this Forum has no jurisdiction to entertain the complaint it cannot give any verdict on merits as regards deficiency in service. Hence that point is decided as ‘Does not Survive’.
I answer the points accordingly and pass the following order-
:- ORDER :-
1. This Forum has no jurisdiction to entertain the present complaint as the valuation of the deficiency in service is more than Rs.Twenty Lakh. Hence complaint is returned to the complainant for presenting the same before the Hon’ble State Consumer Disputes Redressal Commission, Maharashtra within one month.
2. As per the peculiar circumstances there is no order as to costs.
Copy of order be supplied to both the parties free of cost.
