Complainant present in person 

Opponent through Lrd Adv. Gujrathi 

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Per : Mr. V. P. Utpat, President              Place   :  PUNE

// J U D G M E N T //

(25/11/2013)

          This complaint is filed by the flat owner against the builder and developer for deficiency in service under section 12 of the Consumer Protection Act, 1986.  The brief facts are as follows,

1]       The complainant had booked flat with the opponent on 7/2/2012 in the project named as “Sneha Paradise”, ‘C’ Building, 8^th floor, bearing No. 801.  The area of the flat is 1150 sq. ft. and the rate of the flat is Rs. 2500/- per sq. ft.  After paying 15% amount i.e. Rs. 4,80,000/-, the opponent refused to execute agreement and demanded interest of Rs. 3,26,330/-.  After negotiation, the price of the flat was increased up to Rs. 30,75,000/-.  The opponent executed agreement on 23/06/2011 and agreed to complete the construction within 12 months.  The opponent has not complied with the agreement.  Hence, the complainant has filed present complaint for executing correction deed as per actual area, legal possession of the flat, compensation to the tune of Rs. 5 lacs for mental and physical sufferings.  He has demanded expenses to the tune of Rs. 15,000, rent @ 6,000/- and interest on amount of Rs. 13 lacs, which is paid to the opponent @ 18% p.a.  The total claim of the complainant is Rs. 6,68,000/-

2]      The opponent appeared before the Forum and filed application under section 9A of the Civil Procedure Code.  According to the opponent, the complainant has sought possession of the suit flat and also sought some other relief as mentioned in para 3 of the prayer clause.  It is respectfully submitted by the opponent that the suit agreement dtd. 23/6/2011 is worth Rs. 30,75,000/- and compensation amount is Rs. 6,68,000/-.  Hence, the valuation of the claim goes up to Rs. 37,43,000/-, which is beyond the pecuniary jurisdiction of this Forum.  Hence, the opponent has prayed for returning the complaint to the complainant for filing the same before appropriate Forum.

3]      This application is resisted by the complainant.  According to the complaint, he has claimed compensation of Rs. 6,68,000/-.  He has not demanded cost of the flat, but he has claimed legal possession with correction deed as per actual constructed area.  He has prayed for dismissal of the application.

4]      After considering the pleadings of both the parties and hearing argument of both the councels, the following points arise for my determination. The points, findings and the reasons thereon are as follows-

REASONS :-

5]      It reveals from the pleadings as well as documents on record that the complainant has demanded legal possession of the flat with correction deed and in addition to that compensation for delay.  Even though, the complainant has referred in its complaint that he has claimed compensation of Rs. 6,68,000/- and he has not demanded cost of the flat, it can not be said that the valuation of the claim is less than 20 lacs.  According to the opponent, as the complainant has demanded the possession of the flat, while determining the valuation, the value of the flat should be considered.  They have placed reliance 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 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 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 price of the flat is decisive factor while deciding the complaint, in which possession of the flat is claimed.  Hence, I held that this Forum has no jurisdiction to entertain the present complaint.    I answer accordingly and pass the following order.

** ORDER**

1.                 Interim application of the opponent is allowed.

2.                 The complaint is returned to the complainant

for presenting the same before appropriate

Forum within 6 weeks from the date of order.

3.                 In the peculiar circumstances, there is no order

as to the cost.

4.       Copies of this order be furnished to the parties

free of cost.

Place – Pune

Date- 25/11/2013