Complainant through Adv. Thakurdesai
Opponents through Adv. Kalekar
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Per : Mr. V. P. Utpat, President Place : PUNE
// J U D G M E N T //
(31/12/2013)
This complaint is filed by the consumer against Builder and Developer under section 12 of the Consumer Protection Act, 1986 for deficiency in service. The brief facts are as follows,
1] The complainant is a resident of Katraj, Pune. The opponent is dealing in the business of construction. The complainant along with her husband visited the site of the opponent, where the construction was going on, where the representative of the opponent explained about the scheme. There were negotiation between the complainant and the representative of the opponent and as per the negotiation, it was agreed that flat no. 508, situated on 5th floor was to be sold to the complainant for Rs. 26,24,830/-. The opponent has also offered to sale flat no. 505, which is situated on 5th floor, for Rs. 19,59,350/-. As regards the transaction of the second flat, the complainant had paid Rs. 1 lac on two occasions by cheque i.e. on 30/12/2010 and 31/12/2010, as a booking amount. The opponent had executed an agreement of the first flat in the name of husband of the complainant on 14/9/2011. The complainant has paid an amount of Rs. 2,33,910/- on 13/7/2011 and Rs. 1,02,000/- on 16/7/2011. Thus the total amount of Rs. 4,35,910/- was paid by the complainant to the opponent. Even after accepting 20% amount of the total consideration, the opponent has not executed agreement for sale as per the provisions of Maharashtra Ownership Flat Act, 1963. On the contrary, the opponent has unilaterally cancelled the booking of the flat. Hence, that amounts to deficiency in service. The complainant has filed present complaint for declaration that the opponent has indulged in unfair trade practice. The opponent be further directed to execute and register the agreement to sale in respect of second flat.
The complainant has also asked compensation of Rs. 75,000/- along with interest @ 18% p.a. and cost of the litigation Rs. 10,000/-.
2] The opponent has resisted the claim by filing written version. It has denied the contents of the complaint. According to the opponent, flat no. 505 is purchased by complainant’s husband. The complainant had not paid amount as per the terms and conditions. It is admitted by the opponent that the complainant has deposited Rs. 2,33,910/- after lapse of stipulated time. So also registration charges and other charges were not paid by the complainant. Hence, the opponent had informed the complainant to pay the charges from time to time. Hence, the booking of the complainant is cancelled. According to the opponent, there is no deficiency in service and the complaint is liable to be dismissed.
3] After scrutinizing the documents, which are produced on the record by both the parties, and hearing arguments of both the counsels, the following points arise for my determination. The points, findings and the reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1. | Whether District Forum has pecuniary jurisdiction to entertain the present complaint? | In the negative |
| | |
2. | What order? | Complaint is returned to the complainants for presenting it before the proper Forum. |
REASONS :-
4] The admitted fact in the present proceeding is that the complainant has sought registration and execution of the agreement to sale in respect of second flat i.e. flat No. 505, which is worth of Rs. 19,59,350/-. It is also not in much dispute that the complainant has asked compensation of Rs. 75,000/- for mental and physical harassment and cost of the complaint of Rs. 10,000/-. Hence, the total claim of the complainant is of Rs. 20,44,350/-. As the complainant has demanded the execution and registration of agreement to sale of the flat in dispute, while determining the valuation, the value of the flat should be considered. The claim of the complainant is beyond the pecuniary jurisdiction of this Forum; hence this Forum has no jurisdiction to entertain the present complaint. The reliance can be placed upon the Judgment of 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 flat 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 for 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.
6] As regards the pecuniary jurisdiction reliance can also be placed upon the Judgment of the Hon’ble State Consumer Disputes Redressal Commission, Maharashtra reported in 2004(1) Bom. C.R. 551 between Krishna D. Singh vs. Pavan T. Punjabi & Ors. In that proceeding it has been observed that-
“The jurisdiction of Forum has to be determined
on the basis of value of the subject matter of
dispute and not by the result of the decree or award.
For the purpose of valuation of dispute, reliefs
claimed have to be considered in the context of
averment in the complaint.”
In that proceeding the value of the flat was Rs.7,00,000/- and it was directed that the complaint should be instituted in the Court of lowest grade competent to try.
7] 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.
7] In the light of the observations of the above rulings, it is crystal clear that the claim of the complainant is beyond the pecuniary jurisdiction of this Forum. Hence, I held that this Forum has no jurisdiction to entertain the present complaint. I answer accordingly and pass the following order.
** ORDER**
1. The complaint is returned to the complainant
for presenting the same before appropriate
Forum within 6 weeks from the date of order.
2. In the peculiar circumstances, there is no order
as to the cost.
3. Copies of this order be furnished to the parties
free of cost.
Place – Pune
Date- 31/12/2013
