CC No.1611.2017

Filed on 17.06.2017

Disposed on.25.10.2018

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU– 560 027.

DATED THIS THE 25^th DAY OF OCTOBER 2018

CONSUMER COMPLAINT NO.1611/2017

PRESENT:

Sri.  H.S.RAMAKRISHNA B.Sc., LL.B.

        PRESIDENT

             Smt.L.MAMATHA, B.A., (Law), LL.B.

                      MEMBER

                                     V/S

ORDER

BY SRI.H.S.RAMAKRISHNA, PRESIDENT

1. This Complaint was filed by the Complainant on 17.06.2017 U/s 12 of the Consumer Protection Act, 1986 and praying to pass an Order directing the Opposite Parties to jointly and severally repay the Principle sum of Rs.6,00,000/-, directing the Opposite Parties to pay a sum of Rs.4,32,000/- towards interest calculated at 24% p.a from the date of payment till date of filing of the complaint, directing the Opposite Parties to pay future interest of 24% p.a from the date of award until realization and other reliefs.
2. The brief facts of the complaint can be stated as under:

In the Complaint, the Complainant alleges that the Opposite Parties had widely advertised in all the leading daily newspapers.  The Complainant submits that the Opposite Party No.1 represented by Opposite Party No.2 had offered the property and the Complainant accepted to purchase the said Property and the Opposite Party No.1 represented by Opposite Party No.2 issued the Provisional receipt dated 10.05.2014 infavour of Complainant with regard to the proposed project in the name and style of “Dreamz Sai Sagar”.   In that the Opposite Party had assured to build and provide an apartment measuring 1150 sq.ft int eh said project.   

3. The Opposite Party had specifically represented that the Opposite Party intended to acquire the title to the above said property and further that the Opposite Party had vast experience in the development of the Real Estate/establishment of Apartments, residential flats.   It is based on the above representations that the Opposite Party had offered an apartment measuring 1150 sq.ft in the above said project which would be the proportionate share owned by the Complainant upon the Opposite Party putting up residential apartment.   

4. Believing the representations made by the Opposite Party and being interested in acquiring an apartment in the above proposed project to be developed,  having Flat and paid a sum of Rs.6,00,000/- in the following manner. 
   1. Sum of Rs.5,00,000/- on 14.05.2014, vide cheque No.224853, Karnataka Bank, Minerva Circle Branch, Bangalore.
   2. Sum of Rs.1,00,000/- on 13.06.2014, vide cheque No.224854, Karnataka Bank, Minerva Circle Branch, Bangalore.

The above said amounts duly received and acknowledged by the Opposite Parties. 

5. Despite reminders and requests the Opposite Party failed to provide the details and documents of title pertaining to the said Schedule ‘A’ Property and further failed to facilitate in entering into an Agreement of Sale.  The Opposite Party also miserably failed to develop the Schedule ‘A’ Property into a Residential Apartment Complex/Developed Layout with all amenities.  The land where the project was to be developed remains a vacant land with no developments whatsoever and therefore the Opposite Party have abandoned the project in its totality. 

6. Under the circumstances, the Complainant sought to cancel the booking of the apartment in the alleged proposed development.  Accordingly, the Opposite Party company has admitted to the above facts and issued a cancellation letter dated 23.05.2016.  The Opposite Party cancelled the booking of flat and promised to refund the monies received under the above said Cancellation Letter.  It is appropriate to state that, the Opposite Party have also received back all the original documents including and not limited to the original receipts for the payments made and other receipts in relation to the transaction.  Even after issuing the said cancellation letter dated. 23.05.2016, and even after admitting to its liabilities towards the Complainant, the Opposite Party failed to repay the monies received.  However the Opposite Party kept on procrastinating the issue with one or the other excuse and made the Complainant run pillar to post worried for his own hard earned money.  Subsequently, the Opposite Party even issued a cheque for the principle amount of Rs.6,00,000/- however upon presentation the same was dishonored.  On enquiry the Opposite Party once again sought time and issued a letter of assurance, stating they would pay at the earliest, however the same was merely an empty promise. 
7. The Opposite Party’s wholesale failure in developing the Schedule “A” Property, failure to repay the monies received is wholly illegal done only to unduly enriching themselves at the cost of the Complainant.  The same amounts to unfair trade practices other than qualifying to be deficient services and criminal breach of trust.  Under the above circumstances, the Complainant was constrained to issue a legal notice calling upon the Opposite Parties to repay a sum of Rs.6,00,000/- on receipt of the said legal notice.  The above said monies are his hard earned money which was partially saved over the years and partially borrowed with the hope to own a property at Bangalore.  The inefficient and illegal actions of the Opposite Party has not only denied the Complainant of his opportunity investing in any other property at Bangalore but has also put the Complainant in huge financial hardships and constraints.  Hence this complaint.

8. Even though, notice was served on the Opposite Parties, Opposite Parties fails to put their appearance, hence placed ex-parte. 

9. In support of the complaint, the Complainant has filed her affidavit by way of evidence.  Heard Argument of the Complainant.

10.     The points that arise for consideration are:-

1. Whether this Forum have Pecuniary Jurisdiction to entertain this complaint ?
2. Whether the Complainant has proved the alleged deficiency in service by the Opposite Parties ?
3. If so, to what relief the Complainant is entitled ?

11.    Our findings on the above points are:-

                  POINT (1)                  :-   Negative  

     POINT (2)                  :-   Will not survive

                                           for consideration

POINT (3)                  :-   As per the final order

REASONS

12.   POINT NO.1:- The learned Counsel for the Complainant argued that this complaint is maintainable before this Forum and this Forum have Jurisdiction to entertain the complaint.  Since the Complainant filed this complaint only for seeking refund of the Principle amount of Rs.6,00,000/- and directing the Opposite Parties to pay a sum of Rs.4,32,000/- with interest and directing the Opposite Parties to pay future interest of 24% p.a. from the date of award until realization, thereby this Forum have Pecuniary Jurisdiction to entertain the complaint and also argued that the order passed by the District Forum, State Commission or National Commission under the Consumer Protection Act 1986 are not binding precedents.  Thereby, in the decisions rendered by the National Commission is not binding precedent and this Forum ought not to follow the order passed by the National Commission.  In support of her argument, she relied upon a decision reported in AIR 2003 Madras 389.

13.  With this argument and on perusal of record, the Complainant booked a flat with Opposite Parties by paying advance sale consideration of Rs.6,00,000/- and both the Complainant and Opposite Parties have executed Memorandum of Understanding and also it is the case of the Complainant, the total consideration of the flat is for Rs.30,00,000/-. Nodoubt as per the terms of Memorandum of Understanding, the Opposite Parties have not commenced the project known as “Dreamz Sai Sagar”.  For that reason, the Complainant filed this complaint demanding for handing over the possession of the flat or to refund the advance amount of sale consideration.  According to the Complainant himself, the total sale consideration is Rs.30,00,000/-.  It is settled principle of law, the total value of the goods or service provided is to be taken into consideration for determine.  The Pecuniary Jurisdiction of this Consumer Forum and not the partial amount deposited by the allottee, as law laid down in Gurmukh Singh V/s Greater Mohali Area Development Authority and another.  So also in the present case, the total value of the goods i.e., flat in the present complaint is Rs.30,00,000/- that should be taken into consideration for determining the Pecuniary Jurisdiction, but not the advance booking amount of Rs.6,00,000/- as argued by the learned Counsel for the Complainant. 

14.  Section-11 of the Act is with respect to Jurisdiction of the District Forum.  As looking into Section-11 of the Act, it is clear that the District Forum shall have Jurisdiction to entertain the complaint where the value of the goods or services and the compensation, if any, claimed does not exceed Rs.20,00,000/-.   Whereas in the present case, the value of the goods is Rs.30,00,000/-, thereby this Forum have lack of Pecuniary Jurisdiction to entertain the complaint, but it is not proper to accept the argument put forth by the learned Counsel for the Complainant that the order passed by the District Forum, State Commission or National Commission under Consumer Protection Act, 1986 are not binding precedents.  Even as looking into the decision referred by the learned Counsel for the Complainant, it is very clear that including State Commission and National Commission are not binding precedents on the Courts.  The Consumer Redressal Forum only pass orders redressing or granting relief to the consumers.  They are not Higher Courts like the High Court or the Supreme Court.  Therefore, the decisions of the State Commission or National Commission constituted under the Consumer Protection Act are not judgements lying down a ratio decidendi and also further clear that under Article 141 of the Constitution of India, the judgements rendered by the Supreme Court are binding on all.  Further, the judgment of the High Courts are binding precedents on the Court over which the High Court exercises supervisory and revisional powers, under Article 227 of the Constitution of India.  So the Hon’ble High Court of Madras have no supervisory and revisional powers, under Article 227 of the Constitution of India about the order passed by this Forum, thereby the said decision is not applicable to the facts of the Complainant, thereby there is a lack of Pecuniary Jurisdiction to entertain the complaint.  Hence, this point is held in ‘No’. 

 15. POINT NO.2:-  In view of our findings on point No.1 as this Forum have no Pecuniary Jurisdiction to entertain the complaint, hence considering the point No.2 will not survive.    Hence, this point is held in accordingly.

16.   POINT NO.3 :-  In the result, for the foregoing reasons, we proceed to pass the following order:

ORDER

Since lack of Pecuniary Jurisdiction to entertain the complaint, it is ordered to return the complaint to the Complainant to present the same before proper and Jurisdictional Forum.

Supply free copy of this order to both the parties. 

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, dt.25^th day of October 2018).

MEMBER                                              PRESIDENT

LIST OF WITNESSES AND DOCUMENTS

 Witness examined on behalf of the Complainant:

1. Ms.Bhavya Singh, who being the Complainant has filed her affidavit.

 List of documents filed by the Complainant:

1. Copy of Provisional receipts issued by Opposite Party.
2. Copy of the Cancellation letter dated 23.05.2016.
3. Copy of the letters issued by the Opposite Party.
4. Copy of the Legal Notice dated 04.04.2017.
5. Copy of the returned postal covers.

Witness examined on behalf of the Opposite Parties:

                                      -NIL-

List of documents filed by the Opposite Party:

                                                -NIL-

MEMBER                                                                                  PRESIDENT