Advocate Anand Dubal for the
Complainants
Advocate Rahul Gorde for the
Opponent
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Per Hon’ble Shri. V. P. Utpat, President
:- JUDGMENT :-
Date – 31st May 2013
[1] As the Opponent in all the three proceedings as well as the subject matter of the original Complaints and Interim Applications as regards maintainability of the complaint are similar, it is convenient to dispose of all the three Complaints and Interim Applications by Common Order.
[2] These three complaints are filed by the flat purchasers against the Promoter and Builder for deficiency in service u/s 12 of the Consumer Protection Act, 1986. They have asked possession of the flats as well as compensation for delay in possession and for execution of necessary documents. The common contention of the complainants in all these complaints is that they have agreed to purchase the flat from the opponent. The Opponent assured to delivery the possession at the earliest. The complainants have deposited the substantial amount with the Opponent by obtaining housing loan. However the Opponent has not delivered the possession of the disputed flats as per the agreement. The Opponent has also not executed the documents which are mandatory as per the provisions of Maharashtra Ownership Flats Act. The complainants have asked possession of flat, compensation for delay in delivery of possession, for physical and mental sufferings and execution of necessary documents.
[3] Opponent has filed Interim Application as regards maintainability of the complaint instead of filing written statement. According to the Opponent the price of the flat in dispute is above Rs.20,00,000/-. The complainants have not paid the entire consideration. There is no deficiency in service and the Forum has no jurisdiction. The complaints are not maintainable in the present Forum.
[4] Complainants have filed say to the said Interim Application and denied the contents of the Interim Application. It is the case of the complainants that only 10 % construction work is remained and that is considered for the valuation of the present complaints. The complaints are filed for deficiency in service hence it is not necessary to value the entire property. The complainants have prayed for dismissal of the Interim Applications.
[5] After considering the pleadings of both parties, the documentary evidence 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-
Sr.No. | POINTS | FINDINGS |
1 | Whether this Forum has jurisdiction to entertain, try and decide the present complaints ? | In the negative |
2 | What order ? | Complaints are returned to the complainants for presenting the same in proper Forum. |
REASONS
As to the Point Nos. 1 and 2-
As regards the consideration amount of the flats in all the three complaints it is not much in dispute that the price of each flat is more than Rs.20,00,000/-. It reveals from the prayer clause of the complaints that complainants have prayed for restraining the Opponent from transferring the suit property. The Opponent be directed to delivery the possession of the suit flats after completion of the work. It is significant to note that in all the complaints the complainants have conveniently escaped from mentioning the total consideration amount of the flats. It is also not referred in the complaints itself as to how this Forum has pecuniary jurisdiction to entertain the present complaints. The claim for the purpose of pecuniary jurisdiction is valued at 10% value of the flat by stating that only 10% work is incomplete. This is a wrong concept. The learned Advocate for the Opponent argued that it reveals from the Index Extract of the registered Agreements of the disputed flats that the price of each flat is more than Rs.20,00,000/-. As the complainants have asked delivery of the possession of flat then the valuation of the flat should have been more than the consideration amount of the flat that is more than Rs.20,00,000/-. As per section 11 of the Consumer Protection Act, 1986 section 11 laid down as follows-
“Jurisdiction of the District Forum –
(1) Subject to the other provisions of this Act, 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.”
In such circumstances this Forum has no jurisdiction to entertain the present complaints.
The learned Advocate for the Opponent strongly relied 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.
As regards the point of pecuniary 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 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 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.
After considering this legal preposition I held that District Consumer Disputes Redressal Forum has no jurisdiction to entertain the present complaint as the valuation of each flat is more than Rs.20,00,000/-. The complainants have asked relief of possession as well as execution of certain documents. The Complainants have not produced any legal preposition in order to rebut the settled legal position. Hence I held that the Interim Application filed by the Opponent in each complaint deserved to be allowed. I answer the points accordingly and pass the following order-
:- ORDER :-
1. Interim Applications as regards maintainability of the
complaints filed by the Opponent in Complaint Nos. PDF/2013/55, PDF/2013/57 and PDF/2013/62 are allowed.
2. It is hereby declared that this Forum has no pecuniary
jurisdiction to entertain the present complaints. Hence all
the three complaints are returned to the complainants for filing the same in proper Forum within one month from the date of Order.
3. As per peculiar circumstances parties to bear their own
cost.
4. Proceedings are closed.
Copy of order be supplied to both the parties free of cost.
