DIST. CONSUMER DISPUTES REDRESAL FORUM
NORTH 24 PARGANAS, BARASAT.
C. C. No. 558/2016
Date of Filing Date of Admission Date of Disposal
01.09.2016 21.09.2016 26.04.2018
Complainant = Vs. = O.P/s
Bipul Ranjan Pandey Pioneer Property
S/O Late Sachidananda Pandey, Management Ltd.
Residing at 27B, Texmacho Estate, a company registered
P.O & P.S- Belgharia under the
Kolkata – 700056 Companies Act, 1956
Having its office at
Rawdon Enclave,
10A, Rawdon Street,
Kol - 700017
P R E S E N T :- Bankim Chandra Chattopadhyay ……… President
:- Siddhartha Ganguli …………………………. Member
:- Smt. Silpi Majumder………………………….Member
Ld. Advocate for the Complainant:Sri. Debasis Mitra
Ld. Advocate for the O.P: Ex-parte.
Final Order & Judgment
An application has been filed by the complainant under Section 12 of the Consumer Protection Act 1986 praying for a direction upon the OP to complete the registration process by executing a deed of conveyance in respect of the Schedule flat and also hand over the vacant physical possession to the complainant along with a direction to pay compensation to the tune of Rs. 10, 00,000/- and further to pay litigation cost.
The gist fact of the case of the complainant is that he has made an application dated 01.04.2013 for booking and/or allotment of a flat, being no. E, in the Floor no. 1, Block no: 8 measuring about 856 sqft. (super built up area) in PANCHSHEEL VATIK, a residential housing project which was being constructed by the OP on BH 25, MB Road beside Big Bazar, Birati, Kol – 700051.
It is stated by the complainant that on 02.04.2013 he received a computer generated letter from the OP with some enclosure i.e. details price computation cum payment schedule, money receipt of token advance and intimation for installment and the OP issued a referral ID in the said project to the complainant being no. PV 73/00150/BP.
Typed & Corrected by me
Member Cont……P/2
::2::
The complainant further stated that he has paid his first installment on 01.04.2013 and thereafter time to time paid installments for the said flat.
It is further stated by the complainant that it was the condition precedent that the OP will complete the said flat and deliver the possession of the said flat to the complainant within 31 December 2015, but the OP was failed to complete the said project within the stipulated period of time and therefor the OP requested the complainant to extent further period of 3 months for completion of the said flat and for delivery of the possession thereafter and the complainant freely accepted the said proposal and allowed the OP to do the same within the said further extended 3 months period. But it is a matter of regret that till date of filing the case the OP has failed to complete the said flat of the complainant and also failed to deliver the possession of the flat to the complainant.
It is further stated by the complainant that he has paid the full consideration amount but the OP was negligent to complete the said flat and as a result of which the complainant is constrained to reside in a rented house.
It is further stated by the complainant that mostly he paid the installments by issuing cheques and the OP issued money receipts against such payments. Sometimes the agent of the OP came to the house of the complainant and the complainant gave cash to the agent for payment of installment amount of the said flat and when demanded the agent stated that the OP Company will send money receipt by post or courier service, but it is the allegation of the complainant that the OP Company did not send any money receipt to the complainant when such payment was made by cash.
It is further stated by the complainant that he requested several times to the OP to handover possession to the said flat but the OP did not pay any heed to. Alternatively the OP demanded excessive amount with an intension to wrongful gain by way of wrongful loss to the complainant.
The complainant issued an advocate letter dated 28.04.2016 with a request to complete the registration process by executing a deed of conveyance in respect of the said flat and handover the vacant peaceful possession to the complaint within a period of 15 days from the date of receipt of the notice but the OP has failed to comply the request of the said letter.
The complainant therefore files this case alleging deficiency in service on the part of the OP and prays for the following reliefs:-
Reliefs sought for:-
- A direction upon the OP Company to complete the registration process by executing a deed of conveyance in respect of the said flat and hand over the vacant peaceful possession to the complainant.
Typed & Corrected by me.
Member Cont……P/3
::3::
2. To direct the OP Company to pay compensation of Rs. 10,00,000/-
3. Direct to pay the litigation costs, Advocate’s fees and other charges.
4. pass an order of injunction restraining the OP Company and/or agents
from transferring the said flat to any third person and also not to
change the nature and character of the said flat till disposal of the instant complaint.
5. to pass such other order or orders as your Honour may deem fit and
proper.
The complainant files the following Xerox documents along with his complaint petition in order to substantiate his claim:-
i. Pre-allotment letter of Flat no. E, dt. 02.04.2013.
ii. Money Receipt of Rs. 1,85,000/- dt. 07.01.2014.
iii. Money Receipt of Rs. 80,000/- dt. 07.01.2014.
iv. Money Receipt of Rs. 2,00,000/- dt. 23.09.2013.
v. Money Receipt of Rs. 2,00,000/- dt. 01.04.2013
vi. Money Receipt of Rs. 30,048.78/- dt. 07.01.2014.
vii. Money Receipt of Rs. 1,50,000/- dt. 16.11.2013.
viii. Money Receipt of Rs. 95,048.40/- dt. 23.09.2013
ix. Money receipt of Rs.1,50,000/- dt. 16.11.2013.
x. Copy of some cheques.
xi. Copy of the Advocate letter, dt. 28.04.2016.
xii. Copy of Agreement for sale, dt. 22.12.2014
Notice was issued to the OP and the OP received the notice on 21.04.2017 as reflected in the postal track report but despite receiving the notice the OP did not turn up before this Forum. Therefore the case has been proceed ex-parte against the OP.
During hearing of the case the complainant files evidence- in- chief along with same set of documents as stated above.
From the complaint petition, evidence of the complainant and other material on record the following points have been framed:-
1. Is the complainant a consumer?
2. Is this Forum has Jurisdiction to try this case?
3. Was the OP deficient in providing service to the complainant?
4. Is the complainant entitled to get any relief as prayed for?
Decision with reasons:-
All the points have been taken together for the sake of brevity and for avoidance of repetition of facts.
Typed & Corrected by me
Member Cont……P/4
::4::
It is evident of the complainant and the other material on record that the complainant has booked one flat measuring about 856 sqft (Super built up area) being flat no. E, in the Floor no. 1, Block no. 8, in PANCHSHEEL VATIK, in a residential housing project constructed by the OP, on BH 25, MB Road, beside Big Bazar, Birati, Kolkata 700051and it was allotted by the OP by providing referral ID to the complainant being no. PV 73/00150/BP.
It is further seen from the agreement for sale dated 22.12.2014 that the cost of the flat was Rs. 28,50,708/- and as per the statement made by the complainant he has paid entire consideration amount along with service charges.
Considering the above we hold the view that the complainant is a consumer of the OP as per the definition of “Consumer” as provided in Section 2(1)(d) of the Consumer Protection Act, 1986.
Now the question arises whether this Forum has Jurisdiction to try this case.
As per Section 11(1) of the C.P. Act, 1986 it is provided that “Subject to the other Provision 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 does not exceed Rs. 20,00,000/-“.
In the complaint petition the complainant never mentioned the consideration amount of the flat. In the evidence- in- chief of the complainant, the complainant also not disclosed the value of the service or the consideration amount of the flat. So, in order to get the value of the service or the consideration amount of the flat we have to delve into the documents filed by the complainant in order to search out the value of service /cost of the flat and upon careful scrutiny of the documents filed by the complainant it has been revealed from the agreement for sale dt. 22.12.2014 held in between the complainant and the OP developer that consideration of the flat was fixed at Rs. 28,50,708/- and in the 4th Schedule of the agreement the unit charges have been provided in details, wherefrom it is easily ascertained that the value of the flat is more than 20,00,000/-.
Again it is seen from the complaint petition that the complainant has sought compensation of Rs. 10, 00,000/- and if the value of service i.e. the consideration price of the flat is added with the compensation claimed it comes nearly 38, 50,708/-.
In view of the judgment passed by the Hon’ble larger Bench of the NCDRC passed in the case of AMBRISH KUMAR SHUKLA & 21 Others Vs. FERROUS INFRASTRUCTURE Private Limited, dated 07 Oct 2016, wherein it is mentioned that the order dated 11.08.2016, passed in First Appeal No. 166 of 2016, First
Typed & Corrected by me
Member Cont……P/5
::5::
Appeal No. 504 of 2016 and First Appeal No. 505 of 2016, the following issues were referred, by a single Member Bench of this Commission to the larger Bench:
(i) In a situation, where the possession of a housing unit has already been delivered to the complainants and may be, sale deeds etc. also executed, but some deficiencies are pointed out in the construction/ development of the property, whether the pecuniary jurisdiction is to be determined, taking the value of such property as a whole, OR the extent of deficiency alleged is to be considered for the purpose of determining such pecuniary jurisdiction.
(ii) ……………………………………
(iii)…………………………………… etc.
The Hon’ble Commission has been held that ‘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 envisaged determination of the pecuniary jurisdiction based upon the cost of removing the deficiencies in the goods purchased or the services 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. For instance if a person purchases a machine for more than Rs.1.00 crore, a manufacturing defect is found in the machine and the cost of removing the said defect is Rs.10.00 lacs, it is the aggregate of the sale consideration paid by the consumer for the machine and compensation, if any, claimed in the complaint which would determine the pecuniary jurisdiction of the Consumer Forum. Similarly, if for instance, a house is sold for more than Rs.1.00 crore,
Typed & Corrected by me
Member Cont……P/6
::6::
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 the services itself being more than Rs.1.00 crore.
In view of the above Provision of Law and the Judgment referred above, We hold the view that this Forum has no Pecuniary Jurisdiction to try and entertain the present case in hand and therefore due to lack of Pecuniary Jurisdiction the present case of the complainant is liable to be rejected.
As the instant case is not maintainable in this Forum, therefore the other points need not be discussed.
Be it mentioned that liability casts upon the complainant to disclose the cost of the goods or the cost of the services as availed of by him in the petition of complaint. But in the instant complaint the complainant has cunningly avoided to mention the same in order to attract the Pecuniary Jurisdiction of this Ld. Forum. In our view the complainant has tried to misguide this Ld. Forum by not mentioning the cost of the service in the pleading, which is a Sine Qua Non for disclose. Not only that by filing such mis-conceived petition the complainant has tried to grab some money from the OP through an illegal manner but also the precious time of the Forum has been wasted. Therefore, considering aforesaid circumstances we can easily invoke the Section 26 of the C.P. Act, 1986 and thus this complaint is dismissed with cost of Rs. 5,000/- ,which the complainant is liable to pay to the State Consumer Legal Aid Account.
Hence
It is ordered that the Consumer Complaint being No:CC-558 of 2016 is dismissed Ex-parte with cost of Rs.5,000/ which the complainant is directed to pay within one month from the date of this order.
Let a plain copy of the order be given to the parties concerned as per the provision of the C.P Rules and Regulations.
Member Member President
Typed & Corrected by me
Member.
