Date of filing : - 06.05.2013
Date of hearing : - 07.02.2018
The instant complaint Under Section 17 of the Consumer Protection Act, 1986 (for brevity, ‘the Act’) is at the behest of a couple / intending purchaser against the developer / builder on the allegation of deficiency in services on the part of developer in a consumer dispute of housing construction.
Shorn of unnecessary details, complainants’ case is that being attracted by the representations made by the agents / representatives of O.P., they had applied for a flat on 16.05.2017 and paid an advance of Rs. 4,80,000/- in favour of O.P. Upon receipt of the said booking amount, the O.P. has given a letter of allotment on 21.05.2007 confirming the allotment of flat measuring about 1913 sq. ft. being No. 1001 in Block / Tower No. 06, on 10th floor at ‘The Gateway’ (Cluster – I) beside South of Kona Express Highway, Howrah together with car parking space in favour of the complainants at a consideration of Rs. 52,20,540/-. On 13.06.2007 the O.P. sent one draft copy of allotment agreement for signature of the complainants and the complainants after signing the same sent back to the O.P. for their signature and sent it back to the complainants for their record. The complainants have stated that they have paid Rs. 17,47,500/- as part consideration amount on diverse dates towards the total consideration. The complainants alleged that the O.P. has failed to complete the project within the stipulated period and as such becoming disappointed, they wish to withdraw themselves from the said project and requested the O.P. to return the money paid by them. By a letter dated 09.04.2013 the O.P. intimated final cancellation letter against the said flat whereby forfeited the amount of Rs. 17,47,500/-. Hence, the complainants lodged the complaint with prayer for several reliefs including a direction upon O.P. to hand over the possession of the flat and to execute the Sale Deed on receipt of balance consideration money alternatively a direction for refund of Rs. 17,47,500/-, compensation of Rs. 50,00,000/- etc.
The O.P. by filing Written Version disputed the claim and stated that the complainants have defaulted in payment of instalments in time and to comply with the order of Hon’ble National Commission passed on 18.11.2014 in RP/1942/2014 and as such the complaint should be dismissed.
Both the parties have tendered evidence through affidavit. The parties have also relied upon several documents annexed with their affidavits. At the time of final hearing a Brief Notes of Argument has been filed on behalf of the complainants.
At the time of final hearing I have drawn the attention to the Ld. Advocate for the complainants that as per contents of petition of complaint coupled with the evidence on record including the allotment agreement and other materials available on the record, the value of the subject flat has been shown Rs. 52,20,540/- and the Complainants have claimed compensation Rs. 50,00,000/- and as such in view of the provisions of Section 17 (1) of the Act and the observation of Hon’ble National Consumer Commission reported in several cases including the latest decision of Larger Bench reported in I (2017) CPJ 1 (Ambrish Kumar Shukla and 21 Ors Vs Ferrous Infrastructure Pvt. Ltd) the value of the flat or service and compensation should be the determining factor in assessing the pecuniary jurisdiction.
For appreciation of the matter, it would be pertinent to have a look to the provisions of section 17 (1) of the Act which provides - “17. Jurisdiction of the State Commission. –
- Subject to the other provisions of this Act, the State Commission shall have jurisdiction-
- to entertain –
- complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees twenty lakhs but does not exceed rupees one crore .......”.
Needless to say, the jurisdiction means the authority of a Court/Forum to administer justice subject to the limitations imposed by law, which are three-fold, viz – (a) as to subject matter; (b) as to territorial jurisdiction and (c) as to pecuniary jurisdiction. If any Court or Forum passes any order without any competence, the said order would be a nullity. However, it is well settled that the question of territorial and pecuniary jurisdiction has to be ascertained at the initial stage or in the nascent phase of the proceeding. In a decision reported in (2005) 7 SCC 791 (Harshad Chiman Lal Modi – vs. – D.L.F. Universal Ltd. & Anr.) the Hon’ble Apex Court has observed that the question of pecuniary jurisdiction or territorial jurisdiction has to be dealt with before the Court/Forum where the suit/complaint has been instituted and not in an appellate stage.
The Act does not specifically lay down as to how a complaint is to be valued for the purpose of jurisdiction. However, the Hon’ble National Commission is consistent with the view that it is the total value of the goods and / or services as well as that of compensation would determine the pecuniary limit of jurisdiction of Consumer Forum. In a decision reported in 1996 (2) CPR 26 (M/S Quality Foils India Pvt. Ltd Vs Bank of Madura Ltd and Anr.) a larger Bench of Hon’ble National Commission presided by Justice V. Balakrishna Eradi has observed – ‘in our view, where a claim of compensation is pleaded in a Consumer Complaint, then the total value of the goods and / or services as well as that of compensation would determine the pecuniary limit of jurisdiction’. In a decision dated 12.03.2012 in RP/2679/2011 (P.S. Srijan Enclave and Ors Vs Sanjeev Bhargav) the National Commission has observed thus: “ it is settled Law that determination of pecuniary jurisdiction in respect of a dispute regarding service relating to housing would include the value of the property as a whole as well as the compensation demanded in the complaint.”
In the case of Ambrish Kumar Shukla & Ors (supra) the Larger Bench of the Hon’ble National Commission while discussing on the point has observed thus-
“It is evident from a bare perusal of Sections 21, 17 and 11 of the Consumer Protection Act that it’s the value of the goods or services and the compensation, if any, claimed which determines the pecuniary jurisdiction of the Consumer Forum. The Act does not envisage determination of the pecuniary jurisdiction based upon the cost of removing deficiencies in the goods purchased or the servicers 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 the goods purchased or the services hired or availed of by a consumer, when added to the compensation, if any, claimed in the complaint by him, exceeds Rs.1.00 crore, it is this Commission alone which would have the pecuniary jurisdiction to entertain the complaint ....”. Giving instance to the same it has been stated – ‘ if for instance, a house is sold for more than Rs. 1.00 crore, certain defects are found in the house, and the cost of removing those defects is Rs. 5.00 lacs, the complaint would have to be filed before this Commission, the value of services itself being more than Rs. 1.00 crore’.
Therefore, there cannot be any dispute that it is the value of goods or services and compensation claimed which determines pecuniary jurisdiction of the Consumer Forum. The State Commission enjoys a pecuniary jurisdiction not exceeding Rs.1 crore. In the instant case, the complainants themselves have mentioned the value of the subject flat at Rs. 52,20,540/- and they have further claimed a compensation of Rs. 50,00,000/-. Therefore, if the value of the flat and the compensation claimed are added together it exceeds Rs. 1 crore.
Consequently, the complaint stands rejected being not maintainable for want of pecuniary jurisdiction of this Commission.
However, this order will not debar the complainant to approach the appropriate Court/Forum having jurisdiction in accordance with Law.
