BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 28^th DAY OF MARCH 2022

ORDER

SRI.K.S.BILAGI, PRESIDENT

1. This complaint has been filed under Section 12 of C.P.Act, 1986 (herein under referred as an Act) for the following reliefs against the OPs:-

(a) Direct the OP No.1 to construct and deliver a flat as agreed in the tripartite agreement.

(b) Direct the OP No.2 to stop the recovery process of the outstanding loan amount from the complainant as the OP No.2 bank has caused irreparable damage to the complainant and to repay the entire amounts of EMIs paid by the complainant with interest (Rs.1,06,336/-).

(c) Direct the OP No.1 to pay damages to the tune of Rs.10,00,000/- due to loss of opportunity to have a flat in a different place with other developers elsewhere.

(d) Direct the OP No.1 to pay damages to tune of Rs.1,00,000/- for mental agony and other related sufferings.

(e) Direct the OP No.1 to pay damages to the tune of Rs.2,93,664/- as cost of rents in another place.

(f) grant such other reliefs.

2. The case set up by the complainant in brief is as under:-

The complainant having approached OP No.1 to purchase flat on 19.12.2015 for sale consideration of Rs.34,30,000/-.  The OP No.2 being the banker agreed to sanction loan of Rs.34,30,000/-.  The complainant and OPs have entered into tripartite agreement dated 31.12.2015 wherein the complainant agreed to pay monthly installment of rs.26,584/-.  The complainant has paid four installments in all Rs.1,06,336/-.  But, sale deed for consideration Rs.15,10,900/- and total cost of the flat was Rs.45,55,000/-. The OP No.2 has released Rs.30,00,000/- without observing progress of the construction.

3. The OPs failed to complete construction.  Accordingly, the complaint with Parappanna Agrahara Police Station came to be registered at Crime No.420/2016.  Despite legal notice, the OPs failed to complete the construction and deliver flat.  The OP No.2 has caused irreparable loss.  Thereby, this complaint is filed for the above reliefs.  The complaint came to be dismissed against the OP No.1 vide order dated 11.10.2018.

4. In response to the notice, OP No.2 appeared and filed version.  The OP No.2 contends that the complaint is not maintainable either in law or on facts.  This complaint is filed against OP No.2 with false allegation and ill motive.  The complainant had approached OP No.2 for advancement of loan.  Accordingly, on discussion OP No.2 agreed to sanction loan of Rs.34,30,000/- with condition to pay EMI of Rs.26,584/-. The complainant has paid EMI of Rs.1,73,240/- not Rs.1,06,336/.  The sum of Rs.30,00,000/- loan amount has been disbursed as per the tripartite agreement, the total sale consideration for undivided share of the schedule property is Rs.15,19,900/-, total cost of the building is Rs.45,55,000/-.  The OP No.2 is not responsible for the allegations made against OP No.1.  There is no deficiency of service on the part of OP No.2.  The OP No.2 requests to dismiss the complaint.   

5. The complainant failed to file affidavit evidence.  Whereas OP No.2 filed affidavit evidence and relies on documents.  No argument is advanced on behalf of the complainant.  Heard the arguments of advocate for the OP No.2 only.

6. The following points arise for our consideration:-

1. Whether the complainant proves deficiency of service on the part of OPs?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

7. Our answers to the above points are as under:

Point Nos.1 and 2:  do not survive for consideration for want of pecuniary jurisdiction.

    Point No.3: As per final orders

REASONS

8. Point Nos.1 and 2:  Even though, the complainant failed to lead evidence.  But, the sanction of the loan of Rs.34,30,000/- by the OP No.2 and release of Rs.30,00,000/- loan by the OP No.2 is not in dispute.  According to the allegations made in the complaint and agreement of sale deed dated 26.12.2015, there was agreement of sale between 12 land owners, OP No.1 and complainant in respect of sale of schedule property including undivided share for Rs.15,19,900/-.  But, owners of the property are not made the parties. There was a tripartite agreement between the complainant and OPs, that complainant had approached OP No.2 for loan of Rs.34,30,000/-.  Loan agreement came to be executed by the complainant on 30.12.2015 with OP No.2.  One Sandesh Kumar Shetty filed a complaint with Parappanna Agrahara Police Station against 7 persons. The OPs are not parties to this proceeding.  The complainant got issued a legal notice to OPs on 22.03.2017 and OP No.2 issued reply dated 27.04.2017.  The complainant seeks direction against the OP No.1 to construct and deliver a flat and pay in all Rs.13,93,664/- towards compensation and cost of rents.  The complainant seeks direction against the OP No.2 to stop the recovery process and refund Rs.1,06,333/-.
9. The complainant has made a specific allegation in the complaint and in para 6 of the complaint that the sale consideration and cost of construction is Rs.45,55,000/-.  This complaint came to filed on 24.08.2017 under the provisions of C.P.Act, 1986.   
10. At this stage, it is relevant to refer Section 11(1) of C.P.Act, 1986 which read thus:-  

11(1): Jurisdiction of the District Forum: (1) Subject to the 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 (does not exceed rupees five lakhs).  

11. As per the above provision, the District Forum had pecuniary jurisdiction upto Rs.20,00,000/- including value of the goods or service and claim amount.  As per the allegations made in the complaint, the value of the service was Rs.45,55,000/- on the date of the sale agreement and claim was more than Rs.15,00,000/-.  If both values are added, the value as per provision of Section 11(1) was Rs.60,55,000/-.  This valuation for the purpose of pecuniary jurisdiction was more than pecuniary jurisdiction of District Forum.  Under such circumstances, the valuation for the purpose of pecuniary jurisdiction on the date of filing the complaint i.e. 24.08.2017, was more than Rs.20,00,000/-.  Therefore, on the date of filing the complaint, this District Forum had no pecuniary jurisdiction to entertain the complaint.
12. The question arises whether the complaint can be continued against OP No.2 under the new C.P.Act 2019 as complaint against OP No.1 came to be dismissed on 11.10.2018.  We are of the opinion that the complaint cannot be continued under C.P.Act, 2019 which had come into force w.e.f. 20.07.2020. 
13. This reasoning of us is supported by the decisions decisions of the Hon’ble Supreme Court of India and Hon’ble National Commission:-

1. 2021 (2) CPR 398 in the matter of Neena Aneja Vs. Jain Prakash Associates Ltd., dated 16^th March, 2021.  It  is relevant to refer to para 71 of the judgement which read thus:-

71. For the above reasons, we have come to the conclusion that proceedings instituted before the commencement of the Act of 2019 on 20 July 2020 would continue before the fora corresponding to those under the Act of 1986 (the National Commission, State Commissions and District Commissions) and not be transferred in terms of the pecuniary jurisdiction set for the fora established under the Act of 2019.  While allowing the appeals, we issue the following directions:

(i) The impugned judgement and order of the NCDRC dated 30 July 2020 and the review order dated 5 October 2020, directing a previously instituted consumer case under the Act of 1986 to be filled before the appropriate forum in terms of the pecuniary limits set under the Act of 2019, shall stand set aside;

(ii) As a consequence of (i) above, the national Commission shall continue hearing the consumer case instituted by the appellants;

(iii) All proceedings instituted before 20 July 2020 under the Act of 1986 shall continue to be heard by the fora corresponding to those designated under the Act of 1986 as explained above and not be transferred in terms of the new pecuniary limits established under the Act of 2019 and

iv) The respondent shall bear the costs of the appellant quantified at Rupees two lakhs which shall be payable within four weeks.

2. Case No.833/2020 in the matter between M/s Pyaridevi Chabiraj Steels Pvt. Ltd., Vs. National Insurance Company Ltd., and three others dated 28.08.2020 at para 10 read thus:-

Para 10:- From a reading of the aforesaid provisions it is amply clear that for determining the pecuniary jurisdiction of the District Commission, State Commission or National Commission the value of the goods or services paid as consideration alone has to be taken and not the value of the goods or services purchased/taken.  Therefore, we are of the view that the provision of Section 58 (1)(a)(i) of the Act of 2019 are very clear and does not call for any two interpretations.

14. In view of the above discussion, the complaint was not maintainable before District Forum for want of pecuniary jurisdiction and complaint cannot e continued under the new C.P.Act, 2019. Therefore, these two points do not survive for our consideration.
15. Point No. 3:- In view of the discussion made in the preceding paragraph, the complaint requires to be returned to the complainant for presentation before the Hon’ble State Commission, Bengaluru.   Hence, we proceed to pass the following

  O R D E R

1. The complaint was not maintainable for want of pecuniary jurisdiction on the date of filing the complaint i.e. 24.08.2017 and complaint cannot be continued under new C.P.Act, 2019.
2. Return the complaint to the complainant for presentation before the Hon’ble State Commission, Bengaluru.
3. Furnish the copy of this order to both parties as per law.  

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 28^th March, 2022)

Documents produced by the complainant at the time of filing the complaint which are as follows:-

Documents produced by the OP No.2 which are as follows:-