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

DATED 15^th DAY OF FEBRUARY 2022

COMMON ORDER

SRI.K.S.BILAGI, PRESIDENT

1. Consumer case Nos.1411 to 1415/2018 have been clubbed with CC No.418/2018 as per vide order dated 11.06.2019 in CC No.418/2018.

2. The complainant in CC No.418/2018 files complaint against the OPs seeking monitory reliefs of Rs.7,39,400/- stating that he has purchased flat No.309 under registered sale deed dated 20.08.2015 and took the possession of the flat on 01.11.2015 subject to completion of pending work.

3.  The complainant noticed many defects in the construction work at balcony, defective wiring in the circuit board, problem with exhaust ventilator at bathroom and he spent an amount of Rs.27,000/- to rectify these defects.  Even though, OPs have collected Rs.1,50,000/- towards club membership.  But, failed to provide club facility.  He has also paid Rs.2,00,000/- towards car parking. But, car parking area is not properly measured and allotted.  There is a deficiency of service on the part of OPs.  Hence, this complaint.

4. After receipt of notice, OPs appear and file version.  They contend that the complaint is not maintainable either in law or on facts.  The complaint is liable to be dismissed in limine.  The complainant has not approached with clean hands.  There was joint development agreement dated 28.03.2011 with owner V.Srinivas S/o late Venkataraju.  The OPs admit execution registered sale deed 20.08.2015, but denied that the complainant occupied the flat only on 01.11.2015.  There was no joint meeting between complainant and OPs on 29.10.2017 and OPs never agreed to make any payment.  There is no deficiency of service.  The OPs deny the claim of the complainant.  The complainant has not produced any bill or receipt of payment of the work or repairs got done.  The OPs also contend that the complainant requires to be filed a suit before Civil Court for proper adjudication.  Therefore, the OPs request to dismiss the complaint.

5.  In CC No.1411/2018 the complainant seeks a direction against the OPs to pay Rs.15,39,445/-.

6. The case set up by the complainant in brief is as under:- The complainant has purchased flat No.G-01, Ground Floor under the agreement of sale and registered sale deed dated 23.03.2016.  But, complainant has occupied the flat on 1^st March, 2017.  Even though OPs have collected Rs.1,50,000/- for club membership, but failed to provide club facility.  The complainant has paid Rs.2,00,000/- for car parking, but car parking is not according as per measurement and  not done judiciously.  Despite repeated requests, the OPs failed to settle the claim of the complainant, there is a deficiency of service on the part of OPs.

7. After receipt of notice, OPs appear and file version.  They contend that the complaint is not maintainable either in law or on facts.  The complaint is liable to be dismissed in limine.  The complainant has not approached with clean hands.  There was joint development agreement dated 28.03.2011 with owner V.Srinivas S/o late Venkataraju.  The OPs admit execution registered sale deed 23.03.2016 but denied that the complainant occupied the flat only on 11.03.2015.  There was no joint meeting between complainant and OPs on 29.10.2017 and OPs never agreed to make any payment.  There is no deficiency of service.  The OPs deny the claim of the complainant.  The OPs also contend that the complainant requires to be filed a suit before Civil Court for proper adjudication.  Therefore, the OPs request to dismiss the complaint.   

8. In CC No.1412/2018 the complainant seeks monitory relief of Rs.15,39,445/- from the OPs. 

9. The case set up by the complainant in brief is as under:- The complainant has purchased the flat No.G-02, Ground Floor under the registered sale deed 28.01.2016 from OP No.1.  She occupied the flat only on 1^st March, 2017.  There were many defects in the construction, cracks in the walls, absence of utility doors, absence of  commodes in bathrooms, no door locks on the main doors and bedroom doors, broken wash basins in two of the four bathrooms, incomplete wiring of electrical .  Even though OPs have collected Rs.1,50,000/- towards club membership, but club facility is not provided to the complainant.  The OPs having received Rs.2,00,000/- for car parking, but failed to provide proper measured and allot the car parking. There is a deficiency of service on the part of the OPs.  Despite legal notice dated 06.06.2018, the OPs failed to rectify the defects and failed to comply the request of the complainant.  Hence, this complaint.

10. After receipt of notice, OPs appear and file version.  They contend that the complaint is not maintainable either in law or on facts.  The complaint is liable to be dismissed in limine.  The complainant has not approached with clean hands.  There was joint development agreement dated 28.03.2011 with owner V.Srinivas S/o late Venkataraju.  The OPs admit execution registered sale deed 28.01.2016, but denied that the complainant occupied the flat only on 01.03.2017.  There was no joint meeting between complainant and OPs on 29.10.2017 and OPs never agreed to make any payment.  There is no deficiency of service.  The OPs deny the claim of the complainant.  The complainant has not produced any bill or receipt of payment for the work or repairs got done.  The OPs also contend that the complainant requires to be filed a suit before Civil Court for proper adjudication.  Therefore, the OPs request to dismiss the complaint.

11. In CC No.1413/2018 the complainants seek monitory reliefs of Rts.9,54,730/- from the OPs.

12. The case set up by the complainants in brief is as under:-

The OP No.1 has executed registered sale deed dated 14.10.2015 in favour of the complainants having collected sale consideration in respect of flat No.F 314, 3^rd Floor.  There are many defects in the flat including construction work, cracks in the walls and heavy seepage through the walls of living rooms and both rooms.  The OPs have used inferior quality commode and fittings for which complainants have spent an amount.  Even though the OPs have collected membership of Rs.1,50,000/- from the complainants, but failed the provide club facility.  The OPs have also failed to provide proper measured car parking despite collecting amount of Rs.2,00,000/-.  The OPs are liable to pay rentals of Rs.5,000/- per month for delay in handing over the possession.  Hence, this complaint.

13. After receipt of notice, OPs appear and file version.  They contend that the complaint is not maintainable either in law or on facts.  The complaint is liable to be dismissed in limine.  The complainants have not approached with clean hands.  There was joint development agreement dated 28.03.2011 with owner V.Srinivas S/o late Venkataraju.  The OPs admit execution registered sale deed 14.10.2015, but denied that the complainants occupied the flat only on April, 2016.  There was no joint meeting between complainants and OPs on 29.10.2017 and OPs never agreed to make any payment.  There is no deficiency of service.  The OPs deny the claim of the complainants.  The complainants have not produced any bill or receipt of payment for the work or repairs got done.  The OPs also contend that the complainants required to be filed a suit before Civil Court for proper adjudication.  Therefore, the OPs request to dismiss the complaint.   

14. In CC 1414/2018 the complainants seek monitory relief of Rs.8,03,250/- from the OPs.

15. The case set up by the complainants in brief is as under:-

The complainants have purchased flat No.114 from OP No.1 by paying entire sale consideration under registered sale deed dated 29.01.2016.  They occupied the flat on 28.05.2016.  There were construction defects in the flat, balcony walls, cracks, commode covers, wash guns of toilets were broken.  The complainant got replaced these defects by spending the amount.  Despite collecting Rs.1,50,000/- towards club membership, the OPs failed to provide club facility.  Even though, OPs have collected Rs.2,00,000/- for car parking, but they failed to allot properly measured car parking.  The parking area has full hanging wires, and incomplete meter room.  Despite receipt of legal notice dated 12.06.2018, OPs failed to pay cost of repairs and also failed to provide club house facility and proper car parking area.  This act of the OPs amounts to deficiency of service.  Hence, this complaint.

16. After receipt of notice, OPs appear and file version.  They contend that the complaint is not maintainable either in law or on facts.  The complaint is liable to be dismissed in limine.  The complainant has not approached with clean hands.  There was joint development agreement dated 28.03.2011 with owner V.Srinivas S/o late Venkataraju.  The OPs admit execution registered sale deed 29.01.2016, but denied that the complainant occupied the flat only on 28.05.2016.  There was no joint meeting between complainant and OPs on 29.10.2017 and OPs never agreed to make any payment.  There is no deficiency of service.  The OPs deny the claim of the complainant.  The complainant has not produced any bill or receipt of payment for the work or repairs got done.  The OPs also contend that the complainant requires to be filed a suit before Civil Court for proper adjudication.  Therefore, the OPs request to dismiss the complaint.

17. In CC No.1415/2018 the complainant seeks monitory reliefs of Rs.9,91,250/- from the OPs.

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

The complainant has purchased flat No.313 from OP No.1 by paying entire sale consideration under registered sale deed dated 30.10.2015.  The complainant has occupied the flat on 27.02.2016.  The OPs are liable to pay loss of rental income for delay in delivery of possession.  There were number of defects in construction work including balcony area cracks, masonry wall, resting on UPVC of balcony.  Even though, OPs have collected Rs.1,50,000/- towards club membership from the complainant.  But, failed to provide the club facility.  The OPs having collected Rs.2,00,000/- for car parking, but failed to provide/allot proper measured car parking.  The OPs were force to complainant to spend amount to rectify the defects.  The complainant has suffered loss due to defects in the electric wiring.  Despite receipt of legal notice dated 06.06.2018, the OPs failed to rectify the defects and also failed to pay the amount.  Hence, this complaint.

19. After receipt of notice, OPs appear and file version.  They contend that the complaint is not maintainable either in law or on facts.  The complaint is liable to be dismissed in limine.  The complainant has not approached with clean hands.  There was joint development agreement dated 28.03.2011 with owner V.Srinivas S/o late Venkataraju.  The OPs admit execution registered sale deed 30.10.2015, but denied that the complainant occupied the flat only on 27.02.2016.  There was no joint meeting between complainant and OPs on 29.10.2017 and OPs never agreed to make any payment.  There is no deficiency of service.  The OPs deny the claim of the complainant.  The complainant has not produced any bill or receipt of payment for the work or repairs got done.  The OPs also contend that the complainant requires to be filed a suit before Civil Court for proper adjudication.  Therefore, the OPs request to dismiss the complaint.

20. The complainants got examined themselves by filing affidavit evidence and relies on documents.  The OPs have filed affidavit evidence and relied on documents.  Heard the arguments of both sides and perused the records.

21. The following points arise for our consideration:-

1. Whether the then District Forum had pecuniary jurisdiction to entertain these complaints?
2. Whether the complainants prove the deficiency of service on the part of OPs?
3. Whether the complainants are entitled to reliefs mentioned in the complaints?
4. What order?

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

       Point No.1:-  In the negative.

      Point Nos.2 and 3:- Do not survive for our   

      consideration

      Point No.4:-per final orders

REASONS

23. Point No.1: Even though, the respective complaints have been filed for recovery of Rs.7,38,400/-, Rs.15,39,445/-, Rs.15,39,445/-, Rs.9,54,730/-, Rs.8,03,250/- and Rs.9,91,250/- by the respective complainants.  But, complainants have not disclosed the sale consideration paid by them in all the complaints.  But, the complainants have produced copies of respective registered sale deeds.
24. In order to ascertain whether District Forum had pecuniary jurisdiction on the date of filing the complaints, we carefully perused the copies of the registered sale deeds produced by the complainants.
25. The OPs in all the cases have specifically contend that respective complaints are not maintainable and require to be dismissed in limine.
26. In order to appreciate the respective contention, it is relevant to refer the sale consideration mentioned in the respective sale deeds of the complainants and claim made by the complainants. 
27. The following chart showing the payment of sale consideration and money:-

28. Even though, the claim of all the complaints are less then Rs.20,00,000/-.  But, all these complaints have been filed under Section 12 of the C.P.Act, 1986.
29. As per Section 11(1) of C.P.Act, 1986, the value for the purpose of pecuniary jurisdiction shall be less than Rs.20,00,000/-, whenever complaints filed showing  the value of goods or services and value of the reliefs claimed. Therefore, it is necessary 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).  

30. According to the above provision, the District Forum under 1986 C.P.Act had pecuniary jurisdiction to entertain the complaints upto Rs.20,00,000/- taking into consideration, value of the goods or services and monitory reliefs claimed in each of the complaint.  But, the complainants have not shown the sale consideration in their complaint and by suppressing the sale consideration i.e. value of the flat, the complaints came to be filed before the then District Forum showing reliefs less than Rs.20,00,000/-.  Such adoption of valuation is not permissible.
31. When Section 11(1) specifically spelled out that in order to ascertain pecuniary jurisdiction of the then District Forum, it was the duty of the complainants to show the value of the goods or services i.e. sale consideration and value of the reliefs claimed.  But, complainants have not done so in all the cases.
32. It is settled preposition of law that provision of law has to be strictly complied.  Law prevails over equity – Equity can only supplement the law, and not supplant it – There is no scope for interpretation of an unambiguous provision on equitable ground to entertain such complaints which were not maintainable before this District Forum.  This reasoning of us is supported by the decision of Hon’ble Supreme Court of India reported in 2020 (2) CPR 166 in the matter between New India Assurance Co.Ltd., Vs. Hilli Mutlipurpose Cold Storage Pvt. Ltd., It is relevant to refer para 19 of the judgement which read thus:-

Para 19:- The contents of the learned counsel for the respondent is that by not leaving a discretion with the District Forum for extending the period of limitation for filing the response before it by the opposite party, grave injustice would be caused as there could be circumstances beyond the control of the opposite party because of which the opposite party may not be able to file the response within the period of 30 days or the extend period of 15 days.  In our view, if the law so provides, the same has to be strictly complied, so as to settled that law prevails over equity, as equity can only supplement the law, and not supplement it.

This court, in the case of Laxminarayana.R.Bhattad Vs. State of Maharashtra (2003) 5 SCC 413, has observed that “when there is a conflict between law and equity the former shall prevail”.  In P.M.Latha Vs. State of Kerala (2003) 3 SCC 541, this court held that “Equity and law are twin brothers and law should be applied and interpreted equitably, but equity cannot override written or settled law”.  In Nasiruddin Vs. Sita Ram Agarwal (2003) 2 SCC 577, this court observed that “in a case where the statutory provision is plain and unambiguous, the court shall not interpret the same in a different manner, only because of harsh consequences arising thereform”.  In E.Palanisamy Vs. Palanisamy (2003) I SCC 123, it was held that “Equitable considerations have no place where the statue contained express provisions.”  Further, in India House Vs. Kishan N.Lalwani (2003) 9 SCC 393, this Court held that “The period of limitation statutorily prescribed has to be strictly adhered to and cannot be relaxed or departed from by equitable considerations.”

It is thus settled law that where the provision of the Act is clear and unambiguous, it has no scope for any interpretation on equitable ground.

33. Even though, complainants failed to show the sale consideration of the sale deed, but it was the duty of District Forum to ascertain, its pecuniary jurisdiction taking into consideration of sale consideration mentioned in the respective sale deeds and the value of the reliefs claimed in each of the complaint in order to ascertain its pecuniary jurisdiction when the complaints were filed under provision of C.P.Act 1986.
34. The Hon’ble National Commission again in catena of decision has categorically held that the value for the purpose of pecuniary jurisdiction under C.P.Act, 1986 includes value of goods or services and reliefs claimed as indicated in the preceding paragraph. If the sale consideration mentioned in the sale deed of each of the complaints and reliefs claimed by the complainants are taken into consideration, this District Forum had no pecuniary jurisdiction on the date of filing these complaints in the year 2018.
35. This reasoning of us is supported by the latest decision of the Hon’ble National Commission rendered by two members bench reported in 2018 (2) CPR 111 in the matter between Gurmukh Singh Vs. Greater Mohali Area Development Authority and another. The Honb’le National Commission referring the earlier judgement of Larger Bench in Ambrish Kumar Shukla and others Vs. Ferrous Infrastructure Pvt. Ltd.,, wherein it was held in para 6 which read thus:-

Para 6:- A three-member bench of this Commission in their order on 07.10.2016, stated as under on the issue referred above:-

It is the value of the goods or services as the case may be, and not the value or cost of removing the deficiency in the service which is to be considered for the purpose of determining the pecuniary jurisdiction.

36. The Hon’ble National Commission in the decision reported in 111 (2018) CPJ 370 (NC) in the matter between Renu Singh Vs. Experion Development Pvt. Ltd., where in it is held that “Consumer Protection Act, 1986 Sections 291)(g), 21(a)(ii) – Pecuniary jurisdiction – booking of residential unit – builder-buyer agreement – Terms and conditions not agreed upon, Refund of deposited amount sought, alleged deficiency in service – State Commission dismissed complaint – Hence, appeal value of unit itself is Rs.1,28,84,474/- - Pecuniary jurisdiction in complaint is not before the State Commission but it is before the National Commission – No perversity in well reasoned order passed by State Commission.
37. It is true that C.P.Act 2019 has come into force w.e.f. 20.07.2020 wherein the pecuniary jurisdiction of District Commission enhanced to Rs.1 crore on the basis of consideration paid for the goods or services.  But, this Act has no retrospective effect.  When the new Act is no retrospective effect, these complaints cannot be continued before this Commission.
38. The Hon’ble National Commission had an occasion to ruled that new Act has no retrospective effect in M/s Sahyog Homes Ltd., and others Vs. Manoj Shah – Dairy No.13292-13932/NCDRC/2020 wherein para No.19 which read thus:-

Para 19:- Thus, from the law laid down by the Hon’ble Supreme Court in various decisions referred to above as also the Hon’ble Delhi High Court and applied by the Larger Bench of this Commission as already referred hereinbefore, we are of the considered opinion that now it is well-established that a right of Appeal is a vested and a substantive right which cannot be altered, modified by putting concerned from the date of initiation of the proceedings i.e. from the date of filing of the complaint before the appropriate for a under the 1986 Act be it the District Consumer Disputes Redressal Forum, the State Consumer Disputes Redressal Commission or the National Consumer Disputes Redressal Commission, unless the modification which has been made subsequently in the 2019 Act has been made retrospective in operation.  In the present cases, the Provisions of the Second Proviso of Sub-section(1) of Section 51 of the 2019 Act has not been made retrospective in operation and in view of the Sub-Section 3 of Section 107 of the 2019 Act as also Section 6 (c) and (e) of the General Clauses Act, 1897, the right of Appeal which had accrued to these persons from the date of filing of complaint stands as a vested and substantive right and cannot be changed.  Thus, in view of the foregoing discussions, we are of the considered opinion that the Second Proviso of Sub-Section (1) of Section 51 of the 2019 Act shall not be applicable where the person aggrieved is challenging the order passed by the State Commission in an Appeal arising out of a complaint case filed prior to 20^th/24^th July 2020 when the 2019 Act came into operation/was enforced.

39. In Consumer Case No.833/200 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.

40. The Hon’ble Supreme Court of India was pleased to opined that C.P.Act, 2019 has no retrospective effect in the decision reported in 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.

41. In view of the above decisions, these complaints cannot be continued under C.P.Act, 2019.  

42. Point Nos.2 and 3:- It is settled preposition of law that District Forum had no pecuniary jurisdiction to entertain these complaints, it has no power to decide the complaints on merits.  Therefore, these two points do not survive for consideration.  

43. Point No.4:- In view of discussion made in point No.1 and referred above, the complaints were not maintainable before this District Forum and it cannot be continued under the new C.P.Act, 2019 before this Commission.  Under such circumstances, the complaints require to be returned to the complainants for presentation before Hon’ble State Commission, Bengaluru which had only pecuniary jurisdiction to entertain the complaints in the year 2018.  Hence, we proceed to pass the following 

  O R D E R

1. The complaints are not maintainable before this Forum on the date of filing the complaints in the year 2018 for want of pecuniary jurisdiction. This Commission cannot continue the proceedings under Consumer Protection Act, 2019.
2. Return the complaints to the complainants for presentation before the Hon’ble State Commission, Bengaluru which had only pecuniary jurisdiction to entertain the complaint in the year 2018.
3. Return all the documents to the respective complainants.  
4. Keep the original order in CC No.418/2018 and copy of this order in CC Nos.1411 to 1415/2018.
5. 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 15^th day of February, 2022)

Documents produced by the Complainant in CC No.418/2018 are as follows:

Documents produced by the OPs in CC No.418/2018 are as follows:

Documents produced by the Complainant in CC No.1411/2018 are as follows:

Documents produced by the OPs in CC No.1411/2018 are as follows:

Documents produced by the Complainant in CC No.1412/2018 are as follows:

Documents produced by the OPs in CC No.1412/2018 are as follows:

Documents produced by the Complainant in CC No.1413/2018 are as follows:

Documents produced by the OPs in CC No.1413/2018 are as follows:

Documents produced by the Complainant in CC No.1414/2018 are as follows:

Documents produced by the OPs in CC No.1414/2018 are as follows:

Documents produced by the Complainant in CC No.1415/2018 are as follows:

Documents produced by the OPs in CC No.1415/2018 are as follows: