PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :

1) In brief consumer dispute is as under –

That the Opposite Party No.1 M/s. RNA Builders (NG) are the Promoters and Developers and Opposite Party No.2 is the Proprietor/Managing Director of Opposite Party No.1. It is averred that in the month of September, 2009 the Complainant approached Opposite Parties for purchase of the flat in the Opposite Parties proposed building “N.G. Sterling” at Mira Road (E). Relying upon representation made by the sales staff of the Opposite Party the Complainant booked Flat No.603, A-Wing, 6^th Floor of the proposed building “N.G. Sterling” admeasuring 910 Sq. ft. built up area (558 sq. ft. carpet area) @Rs.2,625/-per sq.ft. The total consideration amount was Rs.23,88,750/-. The Complainant has paid an amount of Rs.5,68,750/- in cash and Rs.2,72,997/- by cheque before the execution of the Articles of Agreement dtd.25/09/2009 which was duly registered with the Sub-Registrar of Assurances, Thane. The balance consideration amount of Rs.15,47,003/- was to be paid on demand as per the slab and upon production of the Architect Certificate certifying the completion of concerned slab.

2) In the complaint para No.7 it is stated that though consideration amount of the flat No.603 was Rs.23,88,750/- but in the Agreement dtd.25/09/09 consideration amount was mentioned as Rs.18,20,000/-. Prior to the execution of Articles of Agreement dtd.25/09/09, the Complainant had paid Rs.5,68,750/- in cash and Rs.2,72,997/- by cheque, however in the Articles of Agreement dtd.25/09/09 nothing was mentioned about the money paid in cash. At page 4 of the said Agreement schedule of payment is given. As per the schedule total payment due on or before completion of first slab was Rs.2,81,300/-. In September, 2009 itself the Complainant had paid Rs.2,72,997/- excluding cash amount of Rs.5,68,750/-. It is submitted that in September, 2009 itself the Complainant had almost (only Rs.8,303/- short to Rs.2,81,300) made payment of due amount of first slab even when only digging work was in progress.

3) It is submitted that on 23/04/2010 the Complainant received a letter dtd.21/04/2010 from the Opposite Party demanding payment of Rs.1,15,150/- towards plinth works. Said demand letter was not supported by the Architect Certificate. The Complainant had already made payments towards plinth in fact he had made payment due till first slab in September, 09 itself. According to the Complainant, on 05/05/2010 when he visited the site that time he realized that first slab was still not complete. However, in order to avoid confrontation Complainant decided to make payment as per the demand letter dtd.21/04/2010. However, inspite of Complainant’s repeated efforts Opposite Parties refused to accept payment from the Complainant as per demand letter dtd.21/04/2010. It is contended that it was informed by Ms.Komal of the Opposite Parties that they will not accept payment. On further enquiry Ms. Komal told the Complainant that demand letter was sent by mistake and the M.D. has directed them not to accept payment from any of the flat purchasers of N.G. Sterling buildings. Therefore, on 06/05/2010, Complainant personally visited office of the Opposite Parties but Opposite Parties refused to accept his cheque. According to the Complainant, he was also ready to pay interest, if any. Therefore, he sent a cheque bearing No.000886 dtd.06/05/2010 for Rs.1,15,150/- alongwith covering letter dtd.11/05/2010 to the Opposite Parties by speed post.

4) The Opposite Parties vide their letter dtd.05/05/2010 informed the Complainant that in the absence of non-payment received, under the Agreement, the booking of flat stands cancelled. It is contended that on 06/05/2010, Opposite Party informed the Complainant that since November, 09 the property prices have increased substantially therefore, they have decided to cancel the booking prior to May, 2009. It was further informed to the Complainant that if, Complainant wants to save booking of flat no.603, then he should either make payment of entire consideration amount of Rs.15,47,003/- within 15 days or enter into a fresh agreement at the present/prevalent property rate. The Complainant showed his inability to do so.

5) The Complainant was intimated by the Opposite Parties to not to take any steps against them and quietly accept the amount paid by him. Then the Complainant made complaint to Mira Road Police Station on 19/05/2010. On 20/05/2010 he received letter bearing date 17/05/2010 from the Opposite Parties alongwith cheque dtd.06/05/2010. In the letter dtd.17/05/2010 the Opposite Parties had raised several false contentions and once again canceled booking of flat no.A/603.

6) It is submitted by the Complainant when he booked aforesaid flat no.603, that time property prices were much lower than the prevailing prices. At present it is beyond financial capacity of the Complainant to purchase aforesaid flat at todays prevailing property rate. Considering his financial position the Complainant had booked aforesaid flat in under construction building of the Opposite Party. However, Opposite Parties with malafide intention cancelled the agreement with one or other pretext and it amounts to cheating and unfair trade practice on the part of Opposite Parties.

7) It is submitted by the Complainant that October, 09 onwards the work at site of the building was stopped for about 7 months for the reasons best known to the Opposite Parties. The Complainant was making payment to the Opposite Parties as per the schedule mentioned in the registered agreement dtd.25/05/2009 and still he is ready and willing to do so in the future also. It is submitted that Opposite Parties have cancelled his agreement for purchase of flat no.603 only because property prices have gone up and cancellation of flat on aforesaid grounds amounts to deficiency in service and unfair trade practice on the part of Opposite Parties. Therefore, the Complainant has filed this complaint.

8) The Complainant has prayed to declare that the demand letter dtd.21/04/2010 and subsequent letters dtd.05/05/2010 & 17/05/2010 issued by the Opposite Parties are illegal, bad in law and not biding on the Complainant. The Complainant has requested to direct Opposite Parties to handover vacant and peaceful possession of flat No.A/603, N.G. Building, Mira Road (E) to the Complainant and to accept the payment from the Complainant as per the schedule given in the Agreement dtd.25/09/2009. The Complainant has further requested to restrain by order of injunction the Opposite Parties their servants and agents and all the persons claiming through under or by them, from creating third party interest in respect of flat no.A/603, N.G. Sterling, Mira Road (E). The Complainant has requested to direct Opposite Parties to pay to the Complainant an amount of Rs.15 Lacs as special damages towards severe headache, mental tension, trauma and agony undergone by him and medical expenses incurred by him, alongwith interest @24% p.a. The Complainant has further requested to direct Opposite Parties to pay to the Complainant an amount of Rs.1,46,000/- towards loss suffered by the Complainant in his business and for cost of this proceedings.

9) Alongwith complaint the Complainant has filed application for interim relief. Show-cause Notice of this application was issued to the Opposite Parties. Opposite Parties have filed say to the application for interim relief injection. After hearing Ld.Advocate for both the parties, Opposite Party No.1 & 2 are directed not to create any third party interest in respect of Flat No.603, A-Wing, 6^th Floor, NG Sterling, Mira Road (E) till final disposal of this complaint.

10) Opposite Parties No.1 & 2 have filed their common written statement and thereby resisted claim of the Complainant contending interalia that complaint is false and frivolous and therefore, deserves to be dismissed. It is contended that reliefs sought by the Complainant are beyond the scope of Consumer Forum and the jurisdiction will be of the Civil Court. The complaint is not maintainable in the present Forum. It is alleged that the Complainant has abused process of law. According to the Opposite Parties, there is no deficiency in service on their part nor they have committed any unfair trade practice and therefore, complaint is liable to be dismissed. It is alleged that in fact the Complainant has committed breach of the terms and conditions of the Agreement for Sale and therefore, as per Clause 8 of the said agreement the Opposite Parties are entitled to terminate the contract on the ground of non-payment of installment by the Complainant. It is submitted that the Complainant as per clause 3 of the agreement for sale was under obligation to make payment as per completion of slab. The Opposite Parties has denied averments made in complaint para no.7 that the total consideration of flat was Rs.23,88,750/-. They have denied allegations that any amount was paid by the Complainant to the Opposite Parties in cash. It is submitted that the Agreement for Sale of a Flat No.A/603 was executed for sum of Rs.18,20,000/-. Reminders were sent by the Opposite Parties at regular intervals but Complainant failed and neglected to comply with the demand letter and therefore, Opposite Parties have terminated the agreement for sale.

11) Opposite Parties have admitted the fact that the Complainant had booked flat No.A/603 in their proposed building. On 14/06/2009 out of total consideration the Complainant paid Rs.2,72,997/-. As per Agreement for Sale amount payable at completion of first slab was Rs.1,15,000/-. No demand for Rs.1,15,0000/- made towards completion of first slab. Sum of Rs.2,72,997/- does not include sum of Rs.1,15,150 which was payable by the Complainant on the completion of plinth work. The Opposite Parties have denied allegations that construction work was stopped for about 7 months. According to the Opposite Parties there was no need to enclose Architect Certificate alongwith demand letter dtd.21/04/2010. As per Clause (6) of the Agreement for Sale, the Complainant was at liberty to take inspection of the Architect Certificate in order to verify that work which is clamed by the Opposite Parties is completed or not. The Complainant has failed to choose the option with malafide intention to avoid payment as per the terms and conditions of the Agreement.

12) It is submitted by the Opposite Parties the Complainant personally visited their office and accepted his fault and in order to avoid cancellation of Agreement for Sale the Complainant assured that he is ready and willing to make full and final consideration payment in one shot which was duly accepted by the Opposite Party. However, the Opposite Party was shocked and surprised to receive cheque dtd.06/05/2010 only for sum of Rs.1,15,000/-. Therefore, vide letter dtd.17/05/2010, Opposite Party returned said cheque to the Complainant and informed that Agreement for Sale of flat stands cancelled.

13) Opposite Parties have denied averments made in complaint para no.13 and submitted that as per clause 9 of the Agreement the Opposite Party was at liberty to terminate the agreement in case of default in payment of installment. As per Sec.12 of MOFA, the Complainant is under obligation to make payment as per the schedule of Agreement of Sale dtd.25/09/2009. The Complainant failed to make payment as per payment schedule and so Agreement for Sale of flat to the Complainant was cancelled.

14) It is submitted by the Opposite Parties that prayer made in the complaint are beyond the ambit of Section 14 of the Consumer Protection Act, 1986. It is settle law that Consumer Forum can grant only those reliefs which are enumerated in Sec.14(1) of the Consumer Protection Act, 1986 and not beyond that. It is contended that Opposite Parties are not liable to pay an amount of Rs.15 Lacs towards special damages as claimed by the Complainant. The Opposite Parties are also not liable to pay any other compensation, cost or reliefs prayed by the Complainant. It is alleged that complaint filed by the Complainant is an abuse of process of law. There is no deficiency in service on the part of Opposite Parties. Consumer Forum has no power to entertain the suit which is based on the breach of contract. Complaint is not maintainable in the present Forum. Therefore, complaint is liable to be dismissed with heavy cost.

15) The Complainant has filed rejoinder and thereby denied allegation made in the written statement of Opposite Parties. Opposite Party has filed application thereby raised preliminary objection regarding maintainability of the complaint contending that complaint is misconceived, misplaced and does not disclose any cause of action that would constitute the deficiency in service or unfair trade practice against the Opposite Parties and therefore, complaint should be dismissed. It is further contended by the Opposite Party that Complainant’s claim regarding medical expenses does not fall within the four corners of “Consumer Disputes.” It is further contended that dispute mentioned in the complaint is not a “Consumer Dispute” as the Complainant has neither asked for possession of flat or refund of money.

16) After filing of written statement the Complainant filed an application for amendment of complaint to allow the Complainant to insert prayer for possession of flat etc. The Opposite Parties opposed the application. After hearing both the parties Complainant’s application for amendment of complaint was allowed and Complainant carried out necessary amendment.

17) The Opposite Party No.1 & 2 have filed affidavit of evidence. The Complainant has also filed affidavit of evidence. The Complainant has filed written argument. Opposite Parties have filed written argument in which they have raised contention that reliefs claimed by the Complainant is exceeding pecuniary jurisdiction of this Forum and therefore, this Forum cannot entertain and decide this complaint. The Complainant has filed reply to the preliminary objection raised by the Opposite Party and filed additional affidavit of evidence alongwith additional written argument.

18) Heard Ld.Advocate Ms. Shaila Pandey for the Complainant and Ld.Advocate Mr. Wavikar for the Opposite Parties. Ld.Advocate Mr. Wavikar has vehemently submitted that this Forum has no pecuniary jurisdiction to entertain and try this complaint as reliefs claimed by the Complainant are beyond the pecuniary jurisdiction of this Forum. On the contrary it is submitted on behalf of Complainant that complaint is well with the pecuniary jurisdiction of this Forum.

19) As the Opposite Parties has raised contention that this Forum has no pecuniary jurisdiction to entertain and decide present complaint, firstly, it is necessary to consider whether this Forum has pecuniary jurisdiction to decide this complaint.

      As per provisions of Section 11- Jurisdiction of the District Forum – (1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints whether the value of goods or services and the compensation, if any, claimed [does not exceeds Rs.20 Lacs].

20) It is averred in the complaint para no. 4 –  

      In complaint para no.5 – It is averred that “I say that the as per the Articles of Agreement dated 25^th September, 2009, total payment due on or before completion of 1^st Slab was Rs.2,81,300/-(Rupees Two Lacs Eighty One Thousand Three Hundred Only) and in September, 2009 itself I had paid Rs.2,72,997/- (Rs. Two Lacs Seventy Thousand Nine Hundred Ninety Seven Only),excluding cash amount of Rs.5,68,750/-. I further say that in the September, 2009 itself I had almost (only Rs.8,303/- short to Rs.2,81,300/-) made payment of due amount of the 1^st slab, even when only digging work was in progress.”

21) By referring to the aforesaid averments made in the complaint, Ld.Advocate Shri. Wavikar for the Opposite Parties has submitted that the Complainant himself has specifically averred that total consideration of flat is Rs.23,88,750/-. Value of the flat Rs.23,88,750/- is itself beyond pecuniary jurisdiction of this Forum. Alongwith complaint the Complainant has produced copy of Agreement of Sale dtd.25/09/2009 in which price of said flat is stated as Rs.18,20,000/-. However, the Complainant in the complaint and in affidavit of rejoinder has specifically stated that total agreed consideration of the flat is Rs.23,88,750/-. It is specifically averred by the Complainant that an amount of Rs.5,38,750/- was paid in cash and the said amount paid in cash is not included in the total consideration of the flat mentioned in the Agreement of Sale. It is further submitted that in the written argument filed by the Complainant on 21/03/2011, it is specifically stated that total consideration of the flat in question is Rs.23,88,750/-.

22) Ld.Advocate for the Complainant Smt. Shaila R. Pandey has submitted that the statutory duty is cast upon the Builder/Developer to handover the possession of the Flats to the Flat purchasers as contemplated in the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1960. Therefore, while seeking the relief under MOFA Act, 1960 the value of the Flat cannot be taken into consideration. Even if the value of Complainants flat had been more than Rs.50,00,000/-(Rupees Fifty Lacs Only) then also this Hon’ble Forum would have jurisdiction to entertain, try and dispose off the present complaint. At present the complaint is restricting his claim of damages to Rs.1,70,000/- (Rupees One Lac Seventy Thousand Only) and Rs.10,000/- as a cost. It is submitted that the Complainant is relying upon registered Agreement for Sale. It is alleged that Opposite Parties are trying to mislead this Forum so as to delay hearing of this complaint. The Complainant has filed additional written argument and second affidavit-in-rejoinder in which the Complainant has raised similar contentions.

23) The District Forum is empowered to entertain complaints where the value of the goods or services and the compensation, if any claimed does not exceed rupees twenty lakh. Thus, the pecuniary jurisdiction is nothing but the monetary jurisdiction. The general belief is that the value of a complaint is decided on the basis of the value of the property or services involved. But in consumer disputes, in order to evaluate the value, the amount claimed as compensation will also be added to the value of goods or services. Thus, a dispute on Rupees twenty lakh worth of goods in which the complainant claims compensation of Rupees one lakh, such dispute does not come under the jurisdiction of the District Forum because the value of the complaint including the compensation claimed is more than twenty lakh. District Forum does not have jurisdiction to adjudicate the dispute where the value exceeds the pecuniary limits of its jurisdiction.

24) In this case as mentioned above in the complaint, the Complainant has specifically claimed that total consideration of the Flat agreed to be purchased from the Opposite Party is Rs.23,88,750/-. In the affidavit of evidence the Complainant has stated that agreed price of the flat is Rs.23,88,750/-. In the complaint as well as affidavit of evidence the Complainant has stated that out of total consideration of flat i.e. Rs.23,88,750/- he paid Rs.5,38,750/- in cash and said amount was not mentioned in the Agreement of Sale dated 25/09/09. Same story is repeated by the Complainant in his affidavit of evidence and also in the written argument. However, when the Opposite Party raised specific contention that this Forum has no pecuniary jurisdiction at the fag end, the Complainant filed additional written argument and additional affidavit of rejoinder in which it is stated that while seeking relief under MOFA, 1960, value of Flat cannot be taken into consideration and further it is submitted that Complainant is restricting his claim Rs.1,70,000/- as a damages and Rs.10,000/- as a cost. Submissions made by the Ld.Advocate for the Complainant that while seeking relief under MOFA, value of the flat cannot be taken into consideration and that complaint is well within pecuniary jurisdiction of this Forum are misconceived and misleading. As mentioned above, as per Section 11 of the Consumer Protection Act, 1986, the District Forum shall have jurisdiction to entertain complaint whether value of the goods or service and the compensation, if any, claimed does not exceed Rs.20 Lacs. In the instant case, even according to the Complainant value of subject flat is Rs.23,88,750/-. The Complainant has prayed for possession of the said flat. Value of the said flat stated by the Complainant is beyond pecuniary jurisdiction of this Forum. Besides that the Complainant has prayed for special damages of Rs.15 Lacs plus compensation of Rs.1,46,000/- towards loss suffered in his business. It is to be noted that inspite of contention raised by the Opposite Parties this Forum has no jurisdiction to entertain and try this complaint, the Complainant in the application for amendment of complaint filed on 17/01/2012 has prayed for possession of Flat No.A/603. However, the Complainant has not amended complaint to reduce claim for compensation nor sought amendment in the complaint para no.4, in which it is specifically averred that total consideration of Flat No.A/603 is Rs.23,88,750/-. As mentioned above, it is well settled that while the considering issue of pecuniary jurisdiction averment made in the complaint are required to be considered. Considering aforesaid facts, we hold that reliefs claimed by the Complainant are beyond pecuniary jurisdiction of this Forum and therefore, this Forum has no pecuniary jurisdiction to try this complaint. Therefore, we pass following order -

O R D E R

          i.  It is hereby directed that, for want of pecuniary jurisdiction, the complaint bearing No.174/2010 be forthwith

           returned to the Complainant, for presenting the same before the competent authority having jurisdiction to

           entertain, try & decide complaint.

      ii.  No order as to costs.

       iii.  Certified copies of this order be furnished to the parties.