Per Shri S.R. Khanzode, Hon’ble Presiding Judicial Member
This consumer complaint pertains to alleged deficiency in service on the part of developer and builder for not handing over possession of the flat agreed to be purchased by the complainant. The complainant claimed possession of the agreed flat or possession of the alternate accommodation of similar area flat in the same locality or alternatively a compensation equivalent to the market value of the flat assessed at `1 Crore and further compensation of `5 Lakhs for mental agony and torture; and also claimed compensation @ `25,000/- per month for the delayed possession from the date of filing of complaint till possession is received. The consumer complaint was filed on 21/10/2008.
2. Undisputed facts are that the complainant which the Hindu Undivided Family agreed to purchase a 7th floor flat bearing No.A-701 having area of 975 sq.ft. carpet in a building known as “Benzer Tower” being constructed by opponent No.1-M/s.Anamika Real Estate Pvt. Ltd. (hereinafter referred to as “builder”) for a total consideration of `9,75,000/-. Allotment letter accordingly was issued in favour of complainant on 07/09/1995. Consideration was to be paid in installment as per progress of the construction as stipulated and mentioned in the allotment letter. Receipt of total consideration to the extent of `6,25,000/- from the complainant out of total consideration agreed is also not in dispute. Possession, admittedly, is not delivered and the agreement is still subsisting.
3. Waiting for sufficient long time and since, there was delay in completing construction, the complainant claimed execution of formal agreement and thereupon showed his willingness to pay the balance of consideration and also claimed possession since the building is completed. However, since the builder did not oblige him, he had filed consumer complaint inter alia claiming reliefs referred earlier.
4. On behalf of the complainant, he has filed his own affidavit dated 07/08/2010 and relied upon the documents viz. allotment letter dated 07/09/1995, receipts issued by the builder and the notice dated 31/12/2007 issued through lawyer to the builder. These documents are not in dispute. On behalf of opponent, namely, the builder and its Managing Director, no evidence is adduced.
5. At the time of rehearing of the arguments, complainant remained absent. We heard Mr.A.V. Patwardhan, Advocate appearing for the opponents. The main grievance made on behalf of opponents is about pecuniary jurisdiction of this Commission to entertain this complaint. According to him since, pecuniary jurisdiction from the statement made by the complainant himself in the complaint exceeds `1 Crore and therefore, the State Consumer Commission has no pecuniary jurisdiction to entertain the complaint. However, in the written version, it is submitted on behalf of opponents that looking to the valuation of the agreed flat and since the main relief is about the possession of the flat, the value of which is at `9,75,000/- and the fact that only part consideration of `6,25,000/- was received, it is the District Consumer Disputes Redressal Forum, which have jurisdiction and not the State Consumer Commission. Whatever it may be, but since, the submission is made on the basis of averments made in the complaint, we proceed to consider said submission about the maintainability of the complaint before this Commission. It is also submitted that the complainant is well aware of this issue since it was raised on the earlier occasion when the matter was heard.
6. As earlier recounted, the complainant claimed possession of the flat agreed upon to be purchased i.e. flat No.A-701 or in the alternatively provide alternate premises of the same area on the ground floor on the same road and location; also alternatively claimed compensation, obviously if the flat is not delivered, at the prevailing market price of the flat which the complainant assessed at `1 Crore as per the statement of claim filed along with complaint as well as in his affidavit dated 07/08/2010. In addition to it he also claimed compensation @ `25,000/- per month from the date of filing of complaint i.e. 21/10/2008 till the realization of possession for delayed possession and also claimed additional compensation of `5 Lakhs for mental agony and torture. Thus, total value of compensation claimed per se exceed `1 Crore.
7. Pecuniary jurisdiction of the State Consumer Commission as mentioned in Section 17(1)(a)(i) of Consumer Protection Act, 1986 and it reads as under :-
“17. Jurisdiction of the State Commission – (1) Subject to the other provisions of this Act, the State Commission shall have jurisdiction –
(a) to entertain –
(i) 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.” [underlining provided]
The pecuniary valuation is to be made on the basis of value of the goods or services and compensation, if any, claimed. Therefore, the value of the deficiency in service, namely, not handing over possession of the agreed flat may be taken at the price agreed upon i.e. `9,75,000/-and to this valuation, compensation claimed is to be added which is more than `1,05,00,000/- (Rupees One Crore Five Lakhs). Thus, total valuation for the pecuniary jurisdiction, per se, exceed `1 Crore and therefore, this Commission has no pecuniary jurisdiction to entertain the consumer complaint. In view of this, other issues do not survive. We hold accordingly and pass the following order :-
-: ORDER :-
1. It is hereby directed that for want of pecuniary jurisdiction, the consumer complaint be returned to the complainant, forthwith, for presenting the same before the Consumer Fora, having jurisdiction.
2. In the given circumstances, there shall be no order as to costs.
3. Copies of the order be furnished to the parties.
Pronounced
Dated 6th January 2012.
