IN THE COURT OF THE LD. DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT S I L I G U R I.
CONSUMER CASE NO. : 58/S/2016. DATED : 27.07.2017.
BEFORE PRESIDENT : SMT. KRISHNA PODDAR,
President, D.C.D.R.F., Siliguri.
MEMBER : SMT. PRATITI BHATTACHARYYA.
COMPLAINANTS 1. : BISWAJIT DAS,
S/O Late Harendra Kumar Das,
Resident of 308 B, Diesel Colony, Siliguri Junction,
Siliguri, P.O. & P.S.- Pradhan Nagar,
Dist.- Darjeeling, Pin – 734 003,
Phone No. 98004 85555.
2. : SMT. PANNA DAS,
W/O Biswajit Das,
Resident of 308 B, Diesel Colony, Siliguri Junction,
Siliguri, P.O. & P.S.- Pradhan Nagar,
Dist.- Darjeeling, Pin – 734 003,
Phone No. 98004 85555.
O.Ps. 1. : M/S RISHAB ENTERPRISES,
Office at : “AATALIKA’ 1st Floor, Don Bosco More,
Sevoke Road, P.O. - Siliguri, P.S.- Bhaktinagar,
Dist.: Darjeeling– 734 001.
Represented by its Proprietor :-
2. : SRI RAJESH PRASAD,
S/O Sri Shree Krishna Prasad,
Resident of Gurunanak Sarani, Punjabi Para,
P.O. & P.S.- Siliguri, Dist.- Darjeeling, Pin – 734 001.
3. : SRI PRADIP KUMAR SARKAR,
S/O Late Jitendra Nath Sarkar,
Resident of Mahananda Para, P.O. & P.S.- Siliguri,
Dist.- Darjeeling, Pin – 734 001.
4. : SRI SANKAR SARKAR,
S/O Late Jitendra Nath Sarkar,
Resident of Mahananda Para, P.O. & P.S.- Siliguri,
Dist.- Darjeeling, Pin – 734 001.
5. : MISS SWAPANA SARKAR,
D/O Late Jitendra Nath Sarkar,
Resident of Mahananda Para, P.O. & P.S.- Siliguri,
Dist.- Darjeeling, Pin – 734 001.
Proforma OP 6. : THE SILIGURI MUNICIPAL CORPORATION,
Baghajatin Road, P.O. & P.S.- Siliguri, Dist.- Darjeeling.
FOR THE COMPLAINANTS : Sri Santanu Chakraborty, Advocate.
FOR THE OP Nos.1 & 2 : Sri Arindam Mitra, Advocate.
Contd.....P/2
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J U D G E M E N T
Smt. Krishna Poddar, Ld. President.
The complainants case in brief are that the OP No.1 is a Proprietorship firm and OP No.2 is the Proprietor of the said firm who is running his business as developer in the name and style “M/S. Rishab Enterprises” having its office at Sevoke Road, P.S.- Siliguri. OP Nos.3, 4 & 5 are the owners of the land measuring 13.5 kathas in Mouza-Siliguri, J.L. No.110 (88), Sheet No.3, Pargana – Baikunthyapur, P.S.- Siliguri under Dist.- Darjeeling. The complainants entered into an agreement on 05.08.2013 for purchasing one flat measuring 1079 sq. ft. (carpet area + super built up area) on the third floor with a covered car parking area of 148 sq. ft. at ‘Gananayak Residency’ with all amenities from the OP No.1 & 2 and paid a sum of Rs.10,000/- on 05.08.2013 as advance and thereafter on 20.09.2013 the complainants paid a further sum of Rs.1,90,000/- to the OPs as advance/part payment. The complainants on 14.08.2013 approached to the State Bank of India, for a loan of Rs.20,00,000/- to pay the balance consideration money to the OPs which was sanctioned on 25.01.2014 and the complainant received sanction letter from the bank in this regard. On 06.11.2014 the OP No.2 sent a letter to the complainants for balance consideration money of the flat. The complainants then obtained a quarry (valuation report) from the concerned Registry office on 19.11.2014 and obtained a banker’s cheque on 20.11.2014 in favour of the ADSR, Siliguri for registration. On 16.12.2014 an application for making registration of the flat on commission was filed before the concerned registry office but the OPs did not turn up on the date fixed for registration and demanded some more money other than the agreed amount. Finding no other alternative complainants sent letters for cancellation of the pay order of SBI including EMI of Rs.22,176/- on 19.12.2014 and the Axis bank pay order no.0001624 on 18.12.2014 as the registration was not done by the OPs. Since the date of agreement till February, 2015 the complainants were much harassed and as such lodged a complaint before the local Police Station. In spite of readiness and willingness on the part of the complainants, the OPs failed to register the flat and car parking space as stated in the schedule of the complaint in favour of the complainants. The acts of the OPs amount to deficiency in service and indulgence in unfair trade practice. Accordingly, the complainants have filed the instant case for a direction upon the OPs to execute and register the deed of conveyance in respect of the flat and car parking space as stated in the schedule to the complaints after taking balance consideration money as per agreement in favour of the complainants and handover the possession of the flat and car
Contd.....P/3
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parking space to the complainants and further make payment of compensation of Rs.15,00,000/- for harassment and further a sum of Rs.2,50,000/- for enhancement of registration charges, stamp duty and cost of the proceedings.
In this case notice upon OP Nos.1 to 6 were duly served but except the OP Nos.1 & 2 the rest OPs did not turn up to contest the case. Accordingly, the case proceeds exparte against the OP Nos.3 to 6.
OP Nos.1 & 2 entered appearance and contested the case by filing written version wherein the material averments made in the complaint is denied and it has been contended inter-alia that the instant case is not maintainable. It has been contended by the OP Nos.1 & 2 that as per agreement dated 05.08.2013 the complainants agreed to pay 60% of the consideration amount on sanction of the bank loan but they deliberately avoided, neglected and failed to make such payment and the registration of the deed of sale could not be done due to delay, fault, negligence and latches on the part of the complainants and following the refusal of the complainants to pay the balance consideration money along with interest for delayed payment and the breach of the complainant to fulfil their obligations the OPs have sole and transferred the scheduled flat and car parking space to another bonafide purchase for value and physical possession thereof has already been delivered to the said purchaser. It has been further contended by the OP Nos.1 & 2 that this Forum has no pecuniary jurisdiction to entertain and try the instant case and accordingly, the case is liable to be dismissed.
To prove the case, the complainants have filed the following documents:-
1. Copy of the Agreement to Sell dated 05.08.2013 is annexed hereinafter and marked as Annexure ‘A’.
2. Copy of the plans of the flat and car parking signed by the OP No.2 is annexed hereinafter and marked as Annexure ‘A 1 & A 2’.
3. Copy of the said receipts dated 05.08.2013 is annexed hereinafter and marked as Annexure ‘B’.
4. Copy of the said sanction letter dated 14.08.2013 is annexed hereinafter and marked as Annexure ‘C 1’ & sanction letter dated 25.01.2014 is marked as Annexure ‘C 2’.
5. Copy of the said receipts dated 30.07.2014 of processing charges is annexed hereinafter and marked as Annexure ‘D’.
6. Copy of the said measurement letter, cheques dated 20.11.2014 is annexed hereinafter and marked as Annexure ‘E, E – 1 & E -2’.
7. Copy of the said quarry dated 19.11.2014 is annexed hereinafter and marked as Annexure ‘F’ & ‘G’.
Contd.....P/4
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8. Copy of the said commission letter to the ADSR, Siliguri dated 05.08.2013 is annexed as Annexure ‘H’.
9. Copy of the hand sketch plan handed by the OPs marked as Annexure ‘A Spl’.
10. Copy of the said letter to the SBI Bank dated 19.12.2014 marked as Annexure ‘I 1’ and AXIS Bank letter is marked as Annexure ‘I 2’.
11. Copy of the said letter of the OP No.2 dated 05.02.2015 annexed and marked as Annexure ‘J’.
12. Copy of the said reply letter of the complainant dated 12.02.2015 marked as Annexure ‘K’.
13. Copy of the said paper publication dated 07.02.2015 marked as Annexure ‘L’.
14. Copy of the police complain dated 01.02.2015 marked as Annexure ‘M’
15. Copy of the legal notice dated 23.02.2016 marked as Annexure ‘N’ and the Postal receipt is ‘N 1’.
Complainants have filed evidence in-chief.
Complainants have filed written notes of argument.
OP Nos.1 & 2 have filed evidence in chief and Written Notes of Argument.
Points for determination
1. Is the case barred by pecuniary jurisdiction ?
2. Is there any deficiency in service and unfair trade practice on the part of the OPs ?
3. Is the complainant entitled to get any relief as prayed for ?
Decision with reason
Issue No.1
Ld advocate for the OP Nos.1 & 2 during his course of argument has submitted that this case is not maintainable for want of pecuniary jurisdiction of this Forum. It has been further submitted by the Ld. advocate for the OP Nos.1 & 2 that the complainant has filed the instant case praying for i) a direction upon the OPs to register the deed of conveyance in respect of the flat in question as per agreement dated 05.08.2013 in favour of the complainant and ii) direction upon the OPs to handover possession of the said flat and the car parking space upon payment of balance consideration money, iii) payment of compensation of Rs.15,00,000/- for harassment and Rs.2,50,000/- for enhancement of registration charges and stamp duty.
Contd.....P/5
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It has been further submitted by the ld advocate of the OP Nos.1 & 2 that the value of the complaint for the purpose of pecuniary jurisdiction comprises of value of goods and services and compensation. In the instant case the Annexure-A (Agreement for sale dated 05.08.2013) filed by the complainants clearly shows that the value of the flat and the car parking space which is the subject matter of the present case and in respect of which the service is sought for is Rs.25,23,800/- when the amount of compensation i.e., Rs.15,00,000/- + Rs.2,50,000/- is added to this the total amount stands Rs.42,73,800/- which amount exceeds the pecuniary jurisdiction of the District Forum as laid down in Section 11 of the Act and the complaint is liable to be dismissed.
In support of his contentions he placed reliance on certain decisions as follows :-
- [2015] CJ 529 (NC) Inderjit Singh Ruprai Vs Accord Land Developers Pvt. Ltd. and Others.
- [2015] CJ 693 (NC) Muneesh Malhotra Vs Era Land Marks (India) Ltd.
- Consumer Case No.579 of 2015 (N.C.) Gurdeep Singh H. Puruswani Vs Runwal Constructions.
- First Appeal No.12 of 2013 (State Commission, UT, Chandigarh) M/S Omaxe Limited Vs Yashpal Saggi.
- II (2016) CPJ 344 (N.C.) Modi Builders & Realtors Pvt. Ltd. & Ors. Vs Levaku Usha Reddy & Ors.
On the other hand complainants have cited a decision reported in State Consumer Disputed Redressal Commission, UT, Chandigarh. Shashi Kanta Vs 1. M/S Emmar Mfg Land Limited.
The case of the complainants is that they entered into an agreement on 05.08.2013 with the OP Nos.1 & 2 for purchasing a flat with car parking space as mentioned in the schedule to the complaint and for that purpose paid a sum of Rs.10,000/- on 05.08.2013 and again paid a sum of Rs.1,90,000/- on 20.09.2013 to the OP Nos.1 & 2 as advance/part payment. But in spite of their readiness and willingness to pay the balance amount OPs failed to register the flat and car parking space in favour of the complainants. The complainant submitted the Deed of Agreement dated 05.08.2013. On scrutiny of the said Deed of Agreement it appears that the price of the flat in question is Rs.25,23,800/-. The complainant has filed the instant case for a direction upon the OPs to execute and register the Deed of Conveyance in respect of the flat and car parking space as per the Deed of Agreement dated 05.08.2013 in favour of the complainants together with compensation of Rs.15,00,000/- for harassment and Rs.2,50,000/- for enhancement of registration charges and stamp duty.
Contd.....P/6
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It has been held by the Hon’ble National Commission in the decision reported in 1996 (2) CPR 26 (N.C.) [M/S Quality Foils India Ltd. Vs Bank of Madura Ltd. and another] and in RP No.2679 of 2011 and RP No.2680 of 2011 [P.S. Srijan Enclave & Ors Vs Sanjeev Bhargav and Sanjoy Dewan] that the total value of goods and/or services as well as that of compensation would determine the pecuniary limit of jurisdiction of Consumer Fora. As per provision contained in Section 17 (1) (a) (i) of the C.P. Act, 1986 the value of goods and services availed of and compensation should be taken together in determining the pecuniary jurisdiction of the Commission. In the instant case the value of goods i.e., the total amount of the price of the flat is Rs.25,23,800/- and the amount of compensation as claimed is Rs.15,00,000/- + Rs.2,50,000/- i.e., total Rs.42,73,800/-. In our view when a claim of compensation is pleaded in a consumer complaint then the total value of goods and/or services as well as that of compensation would determine the pecuniary limit of jurisdiction. It is aggregate value of the goods and compensation or the aggregate value of the services as well as that of compensation that determines the pecuniary jurisdiction. So, we find that the aforesaid amounts taking together would exceed the pecuniary jurisdiction of the District Forum. Section 11 (1) of the Consumer Protection Act, 1986 specifies that the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed “does not exceed rupees twenty lakhs”.
Here we find that the reported decisions cited on the side of the OPs are applicable in the instant case.
In view of above discussion, we find that aggregate value of service and compensation is Rs.42,73,800/- this value being more than Rs.20,00,000/- the instant complaint is not maintainable in the District Forum for lack of pecuniary jurisdiction.
So, Issue No.1 is decided against the complainants.
Here it appears that the case is not maintainable on jurisdiction point, so, we are of the view that rests issues are not required to be discussed.
In the result, the case fails.
Hence, it is
O R D E R E D
that the Consumer Case No.58/S/2016 is dismissed on contest against the OP Nos.1 & 2 and dismissed exparte against the OP Nos.3 to 6 without cost.
Copies of the judgment be supplied to the complainants and OP Nos.1 & 2 free of cost.
