This is a complaint U/s 12 of the Consumer Protection Act, 1986 with the prayer for direction upon O.Ps to complete the lift and garage of their building within a stipulated time and to deliver the same to the petitioner for use and prays for compensation of Rs.10,000/- for unnecessary harassment and mental pain and litigation cost.
The case of the complainant in short is that the petitioner entered into an agreement with the O.P on 20.09.2009 where in developer agreed to deliver the flat of petitioner with a garage and lift on or before December 2011 and petitioner agreed to make payment as per agreement. Thereafter petitioner paid on several occasions from 20.09.2009 to 01.01.2010 Rs. 2,55,000/- and 08.09.2011 he paid Rs.6,40.000/- after taking loan from S.B.I, Bazar Branch at Raiganj. The bank is pressing for registration of the deed of purchase of the flat. Then petitioner wrote letter to the O.P on 30.09.13 requesting to complete the construction work and install lift and hand over garage immediately. He also sent legal notice dt. 20.10.2014. However, O.P delivered the possession of the flat to the complainant in the year 2013 but without the provision of lift and garage. The father of the petitioner is old and ailing and cannot have access to the said 3rd floor of the flat without installation of the lift. Therefore petitioner though in physical possession of the flat cannot use the same for residential purpose without lift and garage and is forced to reside with much difficulty in his ancestral house. Moreover the flat handed over to the complainant is found with less floor area than mentioned in the agreement. That, O.P is otherwise insisting the petitioner to have the sale deed registered without garage and lift in gross violation of the agreement of sale. Therefore the petition being helpless moved before this Forum with the petition with above mentioned prayer.
O.Ps M/S Trinath Construction represented by partners Smt. Sumitra Dev and Smt. Monika Saha appeared and contested this case by filing written version, wherein they categorically denied the allegations of the complainant. O.P. made a very elaborate written statement assailing the complaint. O.Ps stated that the case is not maintainable and is barred by pecuniary jurisdiction. The land upon which the construction was made belong to Late Birendra Kr. Datta and after death of Birendra Kumar Datta his legal heirs inherited the same and entered into an agreement on 29.03.09 with M/S. Trinath Construction to develop the property under various terms and conditions. But there was no such terms and construction of installation of three lifts in the apartment. The deed of agreement was registered and as per agreement O.P has no right to sale any flat to any body without getting the power of attorney. That two of the legal heirs died subsequently and all the other legal heirs deliberately violated the conditions in the agreement.
That, the complainant forcefully occupied the flat and using the same for commercial purpose etc.
That, complainant deliberately violated the terms and conditions of the agreement and shall have no right to claim the registration of the flat.
That on the self same point for installation of lift another complaint being No.41 of 2014 was filed before this Forum and over the judgement of the said complaint case C.C.492 of 2015 is pending before Hon’ble State Commission. That as per aggregated value of the property complaint case is barred by the pecuniary jurisdiction of this Forum and it is settled law that dispute regarding services relating to housing would include the value of the property as a whole as well as compensation claimed in the complaint petition. Therefore, O.P prays for dismissal of this complaint petition.
DECISION WITH REASONS
Petitioner has been examined as P.W.1. The documents filed by petitioner are copy of agreement and copy of letters to the complainant and reply letters by the complainant, the cop[y of letter of S.B.I, Bazar Branch to the complainant and reply letters of complainant, legal notice by the complainant, electricity bill and copy of agreement dt.30.03.09. The agreement of sale of flat by the O.P to the complainant and the home loan taken by the complainant for purchasing the same goes to show that complainant paid Rs.7,95,000/- to the O.Ps. O.P made no specific denial in his written version regarding such payment. However, O.P stated that complainant forcibly occupied the flat in question. Complainant admits that he is in possession of the flat. In the petition u/s.12 of the Act he alleges that for want of lift and garage he could not move into the flat leaving behind his old parents in ancestral home . Therefore, he prays for direction upon O.P for the installation of lift and construction of garage within stipulated time and to handover to the petitioners. In cross examination P.W.1 stated that he paid about 80% of the consideration money. As per the agreement dt.10.10.99 he has to pay consideration money by December 2011 and the developer to complete the construction in all respect and to effect the registration of the sale deed. He deposed that he took possession in the year 2013 and enjoying electricity in the flat in his name and submitted electric bills.
From the arguments of both sides and the documents filed by the parties it is admitted position that on the self same ground another complaint petition was filed being No.41 of 2014 before this Forum where complainant also prays for the same relief. The complaint petition was dismissed on contest. It was held that the total valuation of the property in disputes consisting of 37 flats exceeds the pecuniary jurisdiction of the Forum. Moreover, the jurisdiction of the Forum should be based on quantum of reliefs put together that is aggregate of value of goods and compensation or services and compensation.
O.P. did not adduce any O.P.Ws in this case. O.P filed copies of order dt.28.04.17 of First Appeal No.168 of 2017 before the Hon’ble National Forum wherein the present petitioner is a respondent No.31. Parties to the First Appeal “agreed between and prayed for an order to set aside the complaint and the complaint may be dismissed as withdrawn with liberty to the complainant to file a fresh complaint u/s.12(1)© of the C.P.Act “ before the Hon’ble National Commission.
Ld. Lawyer for O.P submits that C.C.492 0f 2015 was also filed before Hon’ble State Commission by 8 Flat owners showing 24 Flat owners as proforma O.P including the present complainant. He also submits that the subject matter of the cases are installation of lift. That the First Appeal was filed before Hon’ble National Commission with a prayer to set aside the order of the Hon’ble State Commission passed C.C.492 of 2015.
Ld. Lawyer also submits with reference to the consumer Case No.97 of 2016 Ambarish Kr. Sukla and 21 others Vs. Ferrous Infrastructure Pvt. Ltd. decided by the Hon’ble National Commission. The primary object behind permitting a class action such as a complaint u/s.12(1)(c) being to facilitate the decision of a consumer dispute in which a large number of consumer are interested, without recourse to each of them filing an individual complaint, it is necessary that such a complaint is filed on behalf of or for the benefit of all the persons having such a community of interest. In this case the complainant along with other flat owners in the said building complex necessarily has a community of interest regarding installation of lift. Therefore, in view of the referred case before Hon’ble National Commission, the complaint on behalf of only some of them or such a complaint by the present complainant will not be maintainable. The complaint has been filed without adding the value of the goods of other Flat owners; there are numerous consumers in the building complex. In that judgement the Hon’ble National Commission has clearly mentioned the essence of Sec.12(1)(c) of C.P.Act and the ‘Complaint’ must necessarily be filed on behalf of or the benefit of consumers having a common interest or have a common grievance against same person. The dispute regarding deficiency in services towards the several flat owners. The value of goods & services and compensation claimed, which determines the pecuniary jurisdiction of the Forum. This Forum enjoys a pecuniary jurisdiction not exceeding Rs.20,00,000/- u/s.11 of the Act. In the instant case complaint has claimed relief and compensation without adding the value of goods & services of other flat owners and if added it will certainly exceeds the pecuniary jurisdiction of this Forum. Therefore, this Forum has no pecuniary jurisdiction to decide such matter.
After giving due consideration of the evidence on record and the document filed by the parties and after hearing arguments advanced by the parties and in the light of our above discussion upon the facts and circumstances of the case we hold that the petitioner is not entitled to get any reliefs in this case as prayed for.
Fees paid is correct. Hence, it is
ORDERED,
That the consumer complaint being No. CC-30/2015 be and the same is dismissed on contest but without cost
Let copies of this order be supplied to the parties free of cost.
