STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
First Appeal No. | : | 284 of 2012 |
Date of Institution | : | 13.08.2012 |
Date of Decision | : | 09.01.2013 |
1] Kiran Aggarwal w/o Sh. Dinesh Goel, resident of H.No.759, Sector 16, Panchkula-134109.
2] Sourabh Goel, Advocate s/o Dinesh Goel, resident of H.No.759, Sector 16, Panchkula-134109
……Appellants/ complainants
V e r s u s
1] Omaxe Chandigarh Extension Developers Pvt. Ltd., SCO No.143-144, First Floor, Sector 8-C, Madhya Marg, Chandigarh-160008, through its Managing Director.
2] Branch Manager, Omaxe Chandigarh Extension Developers Pvt. Ltd., SCO No.143-144, First Floor, Sector 8-C, Madhya Marg, Chandigarh-160008.
3] M/s Golden Peak Township Pvt. Ltd., Wholly owned subsidiary of Omaxe Ltd., having its registered office at 302-303, Crystal Mall, SJS Highway, Beni Park, Jaipur- 302016, through its Managing Director
....Respondents/Opposite Parties
Appeal under Section 15 of the Consumer Protection Act, 1986.
BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.
MRS. NEENA SANDHU, MEMBER.
Argued by: Sh. Sourabh Goel, Advocate for the appellants.
Sh. Munish Gupta, Advocate for the respondents.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT
This appeal is directed against the order dated 04.07.2012, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only) vide which, it dismissed the complaint, filed by the complainants (now appellants).
2. The facts, in brief, are that the complainants applied for Plot No.35-A, measuring 483 sq. yards, with Preferential Location Charges (PLC), in residential township project known as ‘Omaxe Chandigarh Extn.” to be developed by the Opposite Parties, vide application Annexure C-1. The total cost of the plot was Rs.79,16,017/-. The complainants paid the booking amount, in the sum of Rs.5 lacs, through cheque No. 563869 dated 31.01.2010 Annexure C-2, drawn on Punjab and Sind Bank, Sector 11C, Chandigarh. The complainants opted for installment linked plan. The Opposite Parties, raised the demand for payment, vide letter dated 5.4.2010, which was agitated, by the complainants, through e-mails dated 13.4.2010 Annexure C-3, followed by reminder dated 27.4.2010. It was stated that, in the first instance, the Opposite Parties, demanded the payment, as per down payment plan, and on agitation, they admitted their mistake. It was further stated that the complainants, received a copy of allotment letter, through Courier, in the month of July, 2010, and on its perusal, it was revealed that the plot number was wrongly mentioned as 35-B instead of 35-A. The Opposite Parties, through e-mail dated 26.8.2010, informed the complainants, that the payment of Rs.31,09,865.11, was due against them. The complainants gave three cheques, in the sum of Rs.36 lacs to the Opposite Parties, in the month of December 2010, but they did not encash the same, during the validity period of 6 months. On inquiry, it was found that the Opposite Parties, cancelled the allotment and forfeited the amount deposited by the complainants. The complainants sent a legal notice dated 21.8.2011 Annexure C-9, to Opposite Party No.1, for settlement of their grievances, but to no avail. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to accept the payment due, towards the outstanding price without interest, and issue fresh allotment letter, for plot no.35-A, as was applied for, by them; to pay compensation, in the sum of Rs.2 lacs, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.1 lac.
3. The Opposite Parties, in their joint written version, pleaded that the District Forum, at Chandigarh, had no territorial Jurisdiction, to entertain and decide the complaint, as the property (plot in question), was situated at Mohali, in the State of Punjab. It was denied that the complainants applied for plot No.35-A. It was stated that the allotment of plot number, was the prerogative of the Opposite Parties, and, accordingly, plot No.35-B was allotted to the complainants. It was further stated that the complainants made payment of Rs.5 lacs, vide cheque/demand draft aforesaid, and opted for installment linked plan. It was further stated that the complainants did not make payment, after the initial deposit of booking amount, and, as such, as per the terms and conditions of the allotment letter, the allotment of plot, was cancelled, vide letter dated 8.12.2010 Annexure R-6. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
4. The Parties led evidence, in support of their case.
5. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, dismissed the complaint, as stated above.
6. Feeling aggrieved, the instant appeal, has been filed by the appellants/complainants.
7. We have heard the Counsel for the parties, and, have gone through the evidence, and record of the case, carefully.
8. The first question, that falls for consideration, is, as to whether, the District Forum, at Chandigarh, had the territorial Jurisdiction, to entertain and decide the complaint, or not. No doubt, an objection was taken by the Opposite Parties, in the written version, that since the property being situated at Mohali, in the State of Punjab, the District Forum, at Chandigarh, had no territorial Jurisdiction, to entertain and decide the complaint. It is evident, from Annexure R-3, copy of the receipt, submitted by the Opposite Parties, that a sum of Rs.5 lacs, through cheque/demand draft number 563869 dated 31.01.2010, of Punjab and Sind Bank, Sector 11C, Chandigarh, was handed over, to the authorized signatory of Opposite Party No.1, at Chandigarh. It means, that the booking amount of Rs.5 lacs, through the aforesaid cheque/demand draft, was paid to the authorized representative of Opposite Party No.1, at Chandigarh, and, as such, a part of cause of action, accrued, to the complainants, within the territorial Jurisdiction of the District Forum, at Chandigarh. Therefore, the objection taken by the Opposite Parties, in their written version, regarding the lack of territorial Jurisdiction of the District Forum, at Chandigarh, to entertain and decided the complaint, being without substance, is rejected.
9. The second question, that falls for consideration, is, as to whether, the District Forum, had pecuniary Jurisdiction, to entertain and decide the complaint, or not. It may be stated here, that the total price of the plot was Rs.79,16,017/-. The booking amount of the said plot, to the tune of Rs.5 lacs, was paid by the complainants, to the Opposite Parties. Ultimately, the plot was cancelled, by the Opposite Parties, on the ground, that the complainants has failed to make payment of the remaining price of the plot, despite various reminders, having been sent to them. The complainants sought the relief, directing the Opposite Parties, to accept the payment due, towards the outstanding price, and issue fresh allotment letter for plot no.35-A, as was applied for by them and pay compensation of Rs.2 lacs.. Section 11(1) of the Act reads as under:-
“11. Jurisdiction of the District Forum.
(1) Subject to 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 1[does not exceed rupees twenty lakhs].
(2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction, -
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or 2[carries on business or has a branch office or] personally works for gain; or
(b) Any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or 3[carries on business or has a branch office], or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or 4[carry on business or have a branch office], or personally works for gain, as the case may be, acquiesce in such institution; or
(c) the cause of action, wholly or in part arises”.
10. Since, the relief of issuance of a fresh allotment letter of the plot, in question, on receipt of the remaining outstanding amount, towards the price of the same, was sought by the complainants, alongwith other reliefs, the aggregate value of the goods or services, as well as of the compensation, was required to be taken into consideration, for determining the pecuniary Jurisdiction of the Consumer Fora. It was not that the complainants, had only sought relief of refund of the booking amount, deposited by them, with the Opposite Parties. Similar principle of law, was laid down, in Quality Foils India Pvt. Ltd. Vs. Bank of Madura Ltd., & Anr., II (1996) CPJ 103 (NC), a case decided by a four Member Bench of the National Consumer Disputes Redressal Commission, New Delhi, which reads as under :-
“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. It is the aggregate value of the goods and compensation or the aggregate value of the services as well as that of compensation that determines the pecuniary jurisdiction. As we read the provisions of Section 17(1)(a) [and for that matter the provisions of Section 11(1) and Section 21(a)(i) which are in pari-materia the criteria of the value of goods or services if claimed without any compensation would govern the jurisdiction of the Consumer FORA. Where the complainant gives the value of the goods and compensation or the value of the services and compensation, then the question arises whether each one of them should exceed or cross the hurdle of the pecuniary jurisdiction. In some cases, the value of the goods or the compensation claimed and for that matter the value of the services and the compensation claimed may be such that if considered separately it will fall in the jurisdiction of the District Forum or State Commission whereas if considered on the basis of the aggregate, it may fall within the jurisdiction of National Commission or State Commission. The intention of the Legislature is to give the jurisdiction to the Consumer FORA based on the total “value” of the goods and compensation, if any, or in other case the value of the services and compensation if any. Any other interpretation would lead to conflict of jurisdiction. Even though the Legislature has not mentioned the word aggregate before the word value of the goods or services, in the context of provisions of the Act, the intention is clear to give jurisdiction based on the quantum of reliefs put together, in other words, aggregate of the value of the goods and compensation or aggregate of the value of services and compensation, or on the aggregate value of the goods and services and compensation”
11. In Kishori Lal Bablani Vs. M/s Aditya Enterprise & Others, Consumer Complaint No.93 of 2012, decided by the National Consumer Disputes Redressal Commission, New Delhi, the complainant alleged deficiency, in rendering service, and adoption of unfair trade practice, by the Opposite Party-builder, in not handing over possession of the agreed flat No.705-B, VIIth Floor, measuring 1393 sq.ft., at Pranik Chambers, Saki Naka, Saki Vihar Road, Mumbai, by the stipulated date i.e. 13.12.2006, despite payment of full consideration of the same, amounting to Rs.40,75,000/-. Thus, the complainant sought the following reliefs:-
“i. Deliver the possession of premises at 705-B, 7th Floor, ‘Pranik Chambers’, Saki Vihar Road, Saki Naka, Andheri (E), Mumbai to the complainant, forthwith.
ii. to charge outgoings for the premises only from the date of delivery of the possession of the said premises.
iii. to pay interest @ 24% to the complainant on the instalments paid by the complainant on 25.08.2006 from 31.12.2006 (promised date of delivery of possession as per clause 10 of the agreement for sale) till the date of actual delivery of possession of the premises and to pay interest @ 24% to the complainant on the instalments paid by the complainant on 04.08.2007 and 24.10.2011 from the date of payment till the date of delivery of possession of the premises for the opportunity loss.
iv. To pay Rs.15,00,000/- ( Rupees Fifteen Lakhs only) to the complainant for causing mental stress, torture and towards advocate’s fee etc.
v. Pass an order directing the opposite parties to complete the construction work of the building immediately and form a Co-operative Society of the purchasers so as to hand over possession of the building to the Society and forthwith transfer the conveyance of the property in the name of the said Co-operative Society.
vi. Any other or further relief(s) which this Hon’ble Forum may be pleased to grant in favour of the complainant in view of the facts of the above case”.
12. The National Consumer Disputes Redressal Commission, New Delhi, came to the conclusion, that the complainant, mainly sought possession of the flat, in question, which he purchased at a price of Rs.40,70,000/-, besides some interest, and compensation. The National Consumer Disputes Redressal Commission, New Delhi, thus, was of the opinion, that the valuation of the claim, made by the complainant, being below Rupees One crore, the complainant was required to file the complaint, before the State Consumer Disputes Redressal Commission, having pecuniary Jurisdiction, in the matter. In the instant case also as stated above, one of the reliefs sought by the complainants was for issuance of a fresh letter of allotment on receipt of the remaining price of the plot, valued at Rs.79,16,017/- out of which, only a sum of Rs.5 lacs as booking amount had already been paid. Under these circumstances, the pecuniary Jurisdiction, was required to be determined, on the basis of the aggregate value of the plot plus (+) compensation, claimed, as per Section 11(1) of the Act. The aggregate value of the services availed of by the complainants plus compensation, being more than Rs.20 lacs, fell beyond the pecuniary Jurisdiction of the District Forum. The District Forum, therefore, had no pecuniary Jurisdiction, to entertain and decide the complaint.
13. The third question, that falls for consideration, is, as to whether, this Commission, could suo motto, take into consideration, as to whether, the District Forum, had pecuniary Jurisdiction, to entertain and decide the complaint, without any objection, having been taken, in that regard, by the Opposite Parties, in their written version, or not. The question, as to whether, the Fora had pecuniary Jurisdiction, to entertain and decide the complaint, goes to the root of the case. In the absence of objection, having been taken by the Opposite Parties, in their written version, in our considered opinion, this Commission, if comes to the conclusion, that the said Fora had no pecuniary Jurisdiction, could decide that question. In Ramesh Kumar Sihan Hans Vs. Goyal Eye Institute and others, Consumer Complaint No.135 of 2011 decided on 30.03.2012, it was held by the National Commission that the District Forum, State Commission or the National Commission are required to examine the complaint to find out (1) Whether the complainant is a consumer within the meaning Section 2(1)(d) of the Act and is entitled to invoke the original jurisdiction of the Consumer Forum; (ii) Whether the complaint raises one or more consumer disputes viz., unfair trade practice or restrictive trade practice, defects in goods or deficiency in service as defined under the Act; (iii) Whether Consumer Forum has territorial and pecuniary jurisdiction to entertain the complaint; (iv) Whether the complaint has been filed within the period of limitation, and; (v) Whether complaint is accompanied with such amount of fee, as has been prescribed The principle of law laid down in Ramesh Kumar Sihan Hans’s case (supra) is fully applicable to the facts of the instant case. It is, therefore, held that, even in the absence of taking any objection, by the Opposite Parties, in the written version, regarding the lack of pecuniary jurisdiction of the Consumer Forum, this Commission, can suo motto decide such a question.
14. The fourth question that falls for consideration, is as to whether, in the instant appeal, filed by the appellant/complainant, the question of lack of pecuniary jurisdiction of the District Forum, to entertain the complaint can be decided. In Country Colonisers Pvt. Ltd. Vs. Priti Kapur and Ors., Revision Petition No.885 of 2012, decided by the Hon’ble National Commission on 13.07.2012, the District Forum, at Ropar, accepted the complaint, the aggregate value of the subject matter wherein, was beyond Rs.20 lacs, in favour of the complainants. Feeling aggrieved, the Opposite Party filed an appeal, before the State Consumer Disputes Redressal Commission, Punjab, which dismissed the appeal. Still feeling aggrieved, the Opposite Party, filed a Revision Petition, before the National Consumer Disputes Redressal Commission, New Delhi, which held as under:-
“In our view, the District Forum, Ropar lacked inherent pecuniary jurisdiction going by the provisions of section 11 of the Consumer Protection Act, 1986, the value of the subject matter of the complaint being more than Rs.20 lakh. Although, the consumer dispute has been answered by the Fora below but it is manifest that the order passed by the District Forum which had no pecuniary jurisdiction to entertain and try the claim is a nullity for the above stated reasons. Consequently, order passed by the State Commission in appeal will also be treated as nonest/nullity”.
15. The order impugned rendered by the District Forum, on merits, in the complaint, out of the decision whereof the instant appeal has arisen, though it lacked pecuniary Jurisdiction, to entertain and decide the same (complaint), in view of the principle of law, laid down, in Country Colonisers Pvt. Ltd.`s case (supra) is a nullity. An order, which is a nullity, in the eyes of law, can be set aside, in the appeal, filed by the appellants/complainants.
16. The fifth question, that falls for consideration, is, as to what course is open for this Commission, so that the consumer dispute, raised by the complainants/ appellants, is answered, by the competent Consumer Fora, in accordance with the provisions of the Act. Having held, that the District Forum, lacked pecuniary Jurisdiction, and the complaint could neither be filed, before it, nor could it entertain and decide the same, in our considered opinion, it (complaint) is required to be returned to the complainants, for presentation, before the appropriate State Consumer Disputes Redressal Commission.
17. For the reasons, recorded above, the appeal is accepted, with no order as to costs. The order of the District Forum, is set aside. The complaint, in original, is ordered to be returned to the complainants, alongwith the documents, attached therewith, after retaining the attested to be true photocopies of the same, for presentation, before the appropriate State Consumer Disputes Redressal Commission, having pecuniary Jurisdiction, to entertain and decide the same.
18. Certified Copies of this order, be sent to the parties, free of charge.
19. The attested to be true photocopies of the complaint case, and the documents attached therewith, be consigned to Record Room, after completion.
Pronounced.
9th January 2013.
Sd-
[JUSTICE SHAM SUNDER (RETD.)]
PRESIDENT
Sd-
[NEENA SANDHU]
MEMBER
Rg
