Dt. of filing- 23/02/2018
Dt. of Judgement- 20/09/2019
Mrs. Sashi Kala Basu, Hon’ble President.
This consumer complaint is filed by complainant Ashis Kumar Majumder under Section 12 of the Consumer Protection Act, 1986 against the Opposite Parties namely (1) M/s. Arati Construction (2) Amit Patra and (3) Gopal Guha alleging deficiency in service on their part.
Case of the complainant in short is that he was the absolute owner in respect of the property being land measuring an area of 4 cottaha 6 chittaks and 5 sq.ft. along with 500 sq.ft. pucca structure in Mouja – Purba Barisha, J.L. No. 23, appertaining to R.S. Khatian No. 1733, comprised in Dag No. 1544 being Municipal Premises No. 565C, Vidyasagar Sarani. Complainant entered into an agreement for development of the said property with the Opposite Parties. Said development agreement was registered on 19.02.2013. Due to some typographical error another development agreement was executed between the parties and was registered on 18.11.2013 subsequently, Power of Attorney was also executed by the complainant in favour of the Opposite parties. Complainant received a sum of Rs. 10,00,000/- from the OPs on the date of execution of the agreement according to the terms of the said agreement OPs agreed to complete the construction within 30 months from the date of execution of the said agreement. But it was noticed that the OPs had shown no interest to develop the land. So, by a letter complainant requested the OPs to start the process to develop the land but inspite of the same, OPs did not take any step. Ultimately, the demand notice was sent by the complainant through his Ld. Advocate on 30.01.2018. But all in vain. Thus, the present complaint has been filed by the complainant praying for directing the OP to pay sum of Rs. 8,70,000/- as compensation and litigation cost of Rs. 30,000/-.
Complainant has filed the development agreement dated 18.11.2013, Power of Attorney dated 18.11.2013, copy of the letter dated 06.04.2017 sent to the complainant by OPs and the copy of the demand notice dated 30.01.2017 sent by the complainant through his Ld. Advocate.
Opposite Party Nos. 1 and 3 have contested the case by filing Written Version contending inter alia that due to non-cooperation of OP No.2, they could not start the development work. There was no fault on their part and if the complainant pays to OP No.3 Rs.5,00,000/- which he had given to the complainant at the time of development agreement, then OP No.3 was ready and willing to execute the deed of cancellation and Power of Attorney. So, they have prayed that the complainant was not entitled to any compensation.
OP No.2 has also contested the case by filing a separate written version denying and disputing the allegations made in the complaint. It is the specific case of OP No.2 that inspite of repeated request and honest attempt made by him, complainant did not take any step about the conversion or mutation of the subject land in BL & LRO. OP took all the sincere effort to obtain the sanctioned plan. But due to non-cooperation by the complainant, it was obstructed. It is also contended by the OP No.2 that this case is not maintainable before this Forum as this Forum has no jurisdiction to try the case.
During the course of the evidence, both parties have filed their respective evidence followed by filing of questionnaire and answer thereto and ultimately argument has been advanced by the complainant and on behalf of the OP No.2. Complainant has also filed Brief Notes of Argument. OP No.2 has also filed the written notes of argument.
So the following points require determination:
- Whether this complaint is maintainable before this Forum ?
- Whether there has been any deficiency in service on the part of the Opposite Parties?
- Whether the complainant is entitled to the relief as prayed for?
Decision with reason
Point No. : 1
Complainant has claimed that by a development agreement dated 18.11.2013 entered between the parties, OPs agreed to develop the land described in the schedule of the agreement. But towards the development, no step has been taken by the OPs inspte of repeated request by the complainant. The development agreement dated 18.11.2013 and the Power of Attorney dated 18.11.2013 has been filed by the complainant. On perusal the development agreement which is a registered document, it appears that the market value of the property to be developed, has been assessed at Rs.38,30,834/-. So apparently, the value of the property as described in the said agreement, which is the basis of filing this complaint claiming deficiency in services on the part of the OPs, indicates that the value exceeds the pecuniary jurisdiction of this Forum. As per Section 11 (1) of the Consumer Protection Act, District Forum shall have jurisdiction to entertain complaint where the value of the goods or services and the compensation, if any claim, does not exceed Rs. 20,00,000/-
It may be pertinent to point out that even though complainant has stated the valuation in the complaint petition only as Rs. 19,00,000/- (Rs. 10,00,000/- the amount received at the time of execution of the agreement and Rs. 8,70,000/- being amount prayed as compensation and Rs. 30,000/- as litigation cost). But it is a settled principle of law as decided in the case of Ambrish Kumar Shukla and 21 Ors. – vs. – Ferrous Infrastructure Pvt. Ltd. by the Hon’ble National Commission that it is the value of the goods or services and the compensation, if any claim which determines the pecuniary jurisdiction of the Consumer Forum. The Act does not envisage determination of pecuniary jurisdiction based upon the cost of removing the deficiencies in the goods purchased or the service to be rendered to the consumer. Therefore, the cost of removing the defects or deficiencies in the goods or the services would have no bearing on the determination of the pecuniary jurisdiction. If the aggregate of the value of goods purchased or the services hired or availed in the complaint by him, exceeds Rs.20,00,000/-, the District Forum will have no pecuniary jurisdiction to try the case.
In this case, market value of the property in the said development agreement has been stated of Rs. 38,30,834/- and the complainant has also prayed for compensation of Rs.8,70,000/-. So apparently valuation exceeds much more beyond the pecuniary jurisdiction of this Forum. Thus, as this District Forum lacks the pecuniary jurisdiction, complaint is not maintainable and thus liable to be returned to the complainant for its presentation before the appropriate Forum.
This point is thus answered accordingly.
Point no.2 & 3 : In view of the discussion in the point no.1 as this Forum lacks the pecuniary jurisdiction , it would be redundant to enter into discussion on the merits of the case. Thus, the points are answered accordingly.
Hence,
Ordered
CC/87/2018 is accordingly disposed of, being not maintainable. The complaint be returned to the complainant for its presentation before the appropriate Forum.
