Haryana

StateCommission

A/304/2016

MANJUL GUPTA - Complainant(s)

Versus

RANGOLI BUILTECH PVT.LTD. - Opp.Party(s)

VIKAS DEEP

17 Aug 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  : 304 of 2016

Date of Institution:11.04.2016

Date of Decision :17.08.2016

 

 

Manjul Gupta son of Sh. Bhagwan Gupta, E-40, Industrial Area, Sonepat, Haryana.

                                      Appellant-Complainant

Versus

1.      Rangoli Buildtech Private Limited, Registered Office 1105, 11^th Floor, Akashdeep Building, New Delhi-110001.

2.      M/s Taneja Developers & Infrastructure Limited, 9, Kasturba Gandhi Marg, New Delhi-110001

                                      Respondents-Opposite Parties

 

 

 

 

 

 

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Shri B.M. Bedi, Judicial Member.

                             Shri Diwan Singh Chauhan, Member   

 

 

 

Present:               Mr. Vikas Deep, Advocate for appellant.

                             Mr. Rohit Chandel, Advocate for the respondent No.1

                             Mr. Manoj Vashishtha, Advocate for the respondent No.2

 

                                                   O R D E R

 

NAWAB SINGH, J

 

This complainant’s appeal is directed against the order dated February 16^th, 2016, passed by District Consumer Disputes Redressal Forum, Sonepat (for short ‘the District Forum’), whereby complaint filed under Section 12 of the Consumer Protection Act was dismissed on the ground that cost of the plot was Rs.42,00,000/- and District Forum had no pecuniary jurisdiction to entertain the complaint.

2.      One Smt. Radha Jain booked a residential plot admeasuring 700 square yards with the opposite parties in the project namely TDI Green, Sector 16, Sonepat on October 29^th, 2005.  Thereafter, the complainant got transferred the aforesaid plot in his name vide allotment letter dated November 16^th, 2009.  In all, the complainant paid Rs.34,62,900/- to the opposite parties.  Despite having received more than 90% of the total amount, the opposite parties failed to start the development work.    

3.      By filing the present complaint, complainant sought following directions to the opposite parties:-

          “(a)    To handover the actual physical possession of the plot i.e. the residential plot No.B-48, TDI Greens, Sector 16, Sonepat, measuring 700 sq. yards to the complainant, after fully developing the said colony and obtaining the completion certificate from the office of Director, Town and Country Planning, Haryana.

          (b)     To get the sale deed/conveyance deed registered of the plot in question in the name of complainant.

          (c)     To pay compensation in the shape of interest at the rate of 18% per annum on the amount deposited from their respective deposits till possession of plot with Rs.40.00 lacs on account of enhanced cost of construction.”  

 

4.      The District Forum passed the order considering the price of the plot to be more than Rs.20.00 lac.  The complainant is not seeking relief of refund of the amount rather sought direction to the opposite parties to hand over the possession of the plot to him besides seeking execution of sale deed, compensation & interest.

5.      In support of the argument, that the entire and whole price of the flat is to be considered for deciding the question of pecuniary jurisdiction of District Forum, the Forum placed reliance upon TDI Infrastructure Limited Versus Pradeep Mathur, Revision Petition No.1348 of 2014, NCDRC, New Delhi decided on October 16^th, 2015.

6.      Section 11 of the Act deals with the jurisdiction of the District Forum.  For facilitation, the same is reproduced as under:-

“11.  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 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 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 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 carry on business or have a branch office, or personally work for gain, as the case may be, acquiesce in such institution; or

(c) the cause of action, wholly or in part, arises.”

7.      A plain reading of Section 11 of the Act suggests that in respect of the goods or services and the compensation, the value of which does not exceed rupees twenty lakhs, the complaint shall lie before the District Forum.  The legislature was conscious of the fact that the Act deals with either the defect in goods or deficiency in service. So, ordinarily, where the value of goods which are for self consumption and not for resale or commercial purpose, is less than rupees twenty lakhs, the legislators in their wisdom conferred the jurisdiction upon the District Forum at the first instance.

8.      The relief sought by the complainant is mainly for the delivery of possession of the flat and execution of sale deed alongwith certain claims incidental to the main claim in terms of interest on the deposited amount and compensation and expenses owing to the non-delivery of possession of the said plot within agreed time.

9.      The argument raised before this Commission is that a flat, house or plot is not a ‘goods’, the claim relates to deficiency in services so the total value of the flat is not to be considered to decide the question of pecuniary jurisdiction.  It has been added that these questions and arguments were neither raised before the Hon’ble National Consumer Commission nor considered. Relevant paragraphs No.5, 6 & 7 of the cited case are reproduced below:-

                   [5] Learned Counsel for the petitioner submitted that flat was booked for Rs.27,50,000/- and inspite of no pecuniary jurisdiction with District forum, learned District forum committed error in entertaining and allowing complaint and learned State Commission further committed error in dismissing appeal; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that as only balance payment which was below Rs.20.00 lacs was to be paid, learned District Forum has pecuniary jurisdiction and order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.

[6] Perusal of registration form clearly reveals that total basic cost of the flat which was allotted to complainant was Rs.27,50,000/-. OP specifically pleaded in written statement that District Forum had no pecuniary jurisdiction to entertain the complaint, but learned District forum inspite of recording submissions of Counsel for the OP failed to consider this objection and allowed complaint without any pecuniary jurisdiction. Perusal of impugned order also reveals that learned State Commission has not considered this aspect inspite of specific objection in memo of appeal.

[7] As flat was allotted on total basic cost of Rs.27,50,000/- inspite of the fact that less than Rs.20.00 lacs were outstanding in the complainant at the time of filing complaint, for the purposes of pecuniary jurisdiction of Fora below, total cost of flat was to be considered and as District forum was having pecuniary jurisdiction upto Rs.20.00 lacs, District Forum had no jurisdiction to entertain complaint pertaining to flat costing Rs.27,50,000/- and learned District forum committed error in entertaining and allowing complaint and learned State Commission further committed error in not dismissing complaint and revision petition is to be allowed.

 

10.    Before proceeding further it will be advantageous to refer the definition of ‘goods’ under the Consumer Protection Act.  Section 2 (1)(h)(i) provides that ‘goods’ means goods as defined in the Sale of Goods Act, 1930. According to Section 2(7) of the Sale of Goods Act, 1930:-

          “goods” means every kind of movable property other than actionable claims and money; and includes stock and shares, growing crops, grass, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale;

 

11.    Now extracted paragraphs No.5, 6 & 7 of the cited case make it clear that the argument whether a flat is a ‘goods’ for the purposes of the Act, was never raised before the National Consumer Commission and therefore not considered.  The argument having been raised before this Commission, it has to be dealt with, discussed and the conclusions have to be drawn in accordance with law.

12.    A flat or a parcel of land or a house cannot be deemed to be goods because the ‘goods’ can only be movable property.  The definition of ‘goods’ given under the Sale of Goods Act has been adopted under Section 2(1)(h)(i) of the Act.  In general law, it is the Transfer of Property Act, which deals with sale/transfer etc of immovable property.  Since a plot of land is not a ‘goods’, its total value cannot be reckoned for deciding the pecuniary jurisdiction where its possession and compensation are claimed.

13.    Situation shall of course be different when claim relates to refund etc of the value of the plot but when allegations are that of delay etc in delivery of possession, it will be simply a case of deficiency in services.  The amount demanded as compensation for deficiency in service shall be the deciding factor for deciding the pecuniary jurisdiction.

14.    With utmost respect to the Hon’ble National Commission, this aspect of controversy was never raised there and therefore not considered.  It has been raised before this Commission and while this Commission is duty bound to follow the law as laid down by the Hon’ble National Commission, it is also duty bound to consider an argument raised before it and to draw the conclusion as warranted by law.

15.    It is also worth pointing out that in the cited case the allotment of the plot was cancelled by the Director.  That is not the case here.  Here, a person who booked a plot has come up with allegations which tantamount to deficiency in service (delayed delivery of possession etc) and has also claimed compensation.  The plot, per definition, is not a ‘goods’ and hence the amount demanded as compensation etc alongwith possession is the amount, which is to decide the question of pecuniary jurisdiction.  The total price of the plot has to take a backseat so long as the allegations are only of deficiency in service. 

16.    In view of above, order under challenge is set aside and District Forum is directed to entertain the complaint and decide the same in accordance with law. 

17.    The parties are directed to appear before the District Forum on September 28^th, 2016.

18.    Copy of this order be sent to the District Forum.

 

 

 

 

 

 

 

 

 

Announced 17.08.2016

(Diwan Singh Chauhan) Member

(B.M. Bedi) Judicial Member

(Nawab Singh) President

UK