Per Shri P.B. Joshi, Hon’ble Presiding Judicial Member

          We have heard Mr.A.V. Patwardhan, Advocate for the complainant in all the complaints, Mr.J.S. Kini, Advocate a/w. Mr.Suresh Dubey, Advocate for Mr.Madanlal Jain and Mr.Kesarimal Jain in all the complaints, Mr.Mohit Bhansali, Advocate for Mr.Vivek Jain and Mrs.Savita Jain in all the complaints,  Mr.Bharat Jain, Advocate for opponent No.2 in CC/01/30 and for opponent No.6 in CC/01/33,  Mr.Rakesh Agrawal, Advocate for opponent Nos.4&5 in CC/01/30, for opponent Nos.2&3 in CC/01/31 and for opponent Nos.3&5 in CC/01/33 and Mr.Sachin Karia, Advocate for opponent No.3 in CC/01/30 and for opponent Nos.2&7 in CC/01/33.

2.       In the consumer complaint No.30/2001 filed by Complainant-company has booked four flats each for consideration of Rs.11,50,000/- with opponent No.1-Shri Shiv Sai Construction.  Rs.2,50,000/- were paid for each flat in advance at the time of booking on 03/03/2000.  On 11/07/2000 complainant received a letter admitting booking of those flats, payment of said amount, however, demanding entire balance amount within seven days, failing which threatening to forfeit the booking amount.  In the said letter, opponent No.1 informed the complainant about allotment of flat Nos.501, 505, 601 & 605.  It is the contention of the complainant that there was no progress in the construction work but the opponent proceeded to forfeit the amount.  It is the contention of the complainant that complainant was ever willing to pay the balance consideration amount and purchases the flats.  It is because of said notice of the opponent of threat of forfeiting the amount; complainant has filed this consumer complaint bearing No.30/2001 against opponent No.1-Shri Shiv Sai Construction mentioning names of four persons as Partners/Managers of said company.  It was contended that total claim amount is less than Rs.20 Lakhs and the opponent has full functioning branch office within the State of Maharashtra.  Hence, this State Commission has jurisdiction.  Complainant prayed that opponents be ordered and directed to execute agreement for sale of four flats.  Opponents be jointly ordered and directed to hand over vacant and peaceful possession of flat Nos.501, 505, 601 & 605 on or before March 2003, failing which opponent No.1 be directed to pay amount of Rs.500/- per day for delay in handing over possession of said flats.  Alternatively, complainant prayed that opponent be directed to make available another flats of same sizes within the vicinity of same location as per choice of the complainant and execute agreement for sale of four flats.  Opponent be directed to hand over possession of alternate flats on or before March 2003 and till then not to create third party interest or charge in the four flats bearing No.501, 505, 601 & 605.  It was further prayed that in either case, opponent be directed not to forfeit the amount of Rs.10 Lakhs received by opponent, but to appropriate the same towards consideration amount and receive balance amount of Rs.9 Lakhs per flat as per progress of the construction.  It was further prayed that opponent be directed to pay a sum of Rs.50,000/- towards costs and expenses incurred by the complainant in pursuing the opponent and for financial inconvenience to the complainant-company and anxiety caused to the Directors.

3.       During the pendency of this complaint, those flats were sold by opponent No.1 to opponent Nos.2to5 and those persons were added as opponent Nos.2to5 as per direction of Hon’ble National Commission.

4.       In the consumer complaint No.31/2001 filed by Complainant-company has booked two flats each for consideration of Rs.11,50,000/- with opponent No.1-Shri Shiv Sai Construction.  Rs.2,50,000/- were paid for each flat in advance at the time of booking on 03/03/2000.  On 11/07/2000 complainant received a letter admitting booking of those flats, payment of said amount, however, demanding entire balance amount within seven days, failing which threatening to forfeit the booking amount.  In the said letter, opponent No.1 informed the complainant about allotment of flat Nos.701 & 705.  It is the contention of the complainant that there was no progress in the construction work but the opponent proceeded to forfeit the amount.  It is the contention of the complainant that complainant was ever willing to pay the balance consideration amount and purchases the flats.  It is because of said notice of the opponent of threat of forfeiting the amount; complainant has filed this consumer complaint bearing No.31/2001 against opponent No.1-Shri Shiv Sai Construction mentioning names of four persons as Partners/Managers of said company.  It was contended that total claim amount is less than Rs.20 Lakhs and the opponent has full functioning branch office within the State of Maharashtra.  Hence, this State Commission has jurisdiction.  Complainant prayed that opponents be ordered and directed to execute agreement for sale of two flats.  Opponents be jointly ordered and directed to hand over vacant and peaceful possession of flat Nos.701 & 705 on or before March 2003, failing which opponent No.1 be directed to pay amount of Rs.500/- per day for delay in handing over possession of said flats.  Alternatively, complainant prayed that opponent be directed to make available another flats of same sizes within the vicinity of same location as per choice of the complainant and execute agreement for sale of two flats.  Opponent be directed to hand over possession of alternate flats on or before March 2003 and till then not to create third party interest or charge in the two flats bearing No.701 & 705.  It was further prayed that in either case, opponent be directed not to forfeit the amount of Rs.5 Lakhs received by opponent, but to appropriate the same towards consideration amount and receive balance amount of Rs.9 Lakhs per flat as per progress of the construction.  It was further prayed that opponent be directed to pay a sum of Rs.50,000/- towards costs and expenses incurred by the complainant in pursuing the opponent and for financial inconvenience to the complainant-company and anxiety caused to the Directors.

5.       During the pendency of this complaint, those flats were sold by opponent No.1 to opponent Nos.2&3 and those persons were added as opponent Nos.2 & 3 as per direction of Hon’ble National Commission.

6.       In the consumer complaint No.33/2001 filed by Complainant-company has booked six flats each for consideration of Rs.11,50,000/- with opponent No.1-Shri Shiv Sai Construction.  Rs.2,50,000/- were paid for each flat in advance at the time of booking on 03/03/2000.  On 11/07/2000 complainant received a letter admitting booking of those flats, payment of said amount, however, demanding entire balance amount within seven days, failing which threatening to forfeit the booking amount.  In the said letter, opponent No.1 informed the complainant about allotment of flat Nos.201, 205, 301, 305, 401 & 405.  It is the contention of the complainant that there was no progress in the construction work but the opponent proceeded to forfeit the amount.  It is the contention of the complainant that complainant was ever willing to pay the balance consideration amount and purchases the flats.  It is because of said notice of the opponent of threat of forfeiting the amount; complainant has filed this consumer complaint bearing No.33/2001 against opponent No.1-Shri Shiv Sai Construction mentioning names of four persons as Partners/Managers of said company.  It was contended that total claim amount is less than Rs.20 Lakhs and the opponent has full functioning branch office within the State of Maharashtra.  Hence, this State Commission has jurisdiction.  Complainant prayed that opponents be ordered and directed to execute agreement for sale of six flats.  Opponents be jointly ordered and directed to hand over vacant and peaceful possession of flat Nos.201, 205, 301, 305, 401 & 405 on or before March 2003, failing which opponent No.1 be directed to pay amount of Rs.500/- per day for delay in handing over possession of said flats.  Alternatively, complainant prayed that opponent be directed to make available another flats of same sizes within the vicinity of same location as per choice of the complainant and execute agreement for sale of six flats.  Opponent be directed to hand over possession of alternate flats on or before March 2003 and till then not to create third party interest or charge in the six flats bearing No.201, 205, 301, 305, 401 & 405.  It was further prayed that in either case, opponent be directed not to forfeit the amount of Rs.15 Lakhs received by opponent, but to appropriate the same towards consideration amount and receive balance amount of Rs.9 Lakhs per flat as per progress of the construction.  It was further prayed that opponent be directed to pay a sum of Rs.50,000/- towards costs and expenses incurred by the complainant in pursuing the opponent and for financial inconvenience to the complainant-company and anxiety caused to the Directors.

7.       During the pendency of this complaint, those flats were sold by opponent No.1 to opponent Nos.2to7 and those persons were added as opponent Nos.2to7 as per direction of Hon’ble National Commission.

8.       Opponent No.1-Shri Shiv Sai Construction has filed written version under the signature of Mr.Madanlal Jain as Constituted Attorney.  Mr.Madanlal Jain is shown as Number-1 under Shri Shiv Sai Construction Co.-Opponent No.1 has not disputed about booking of the flats by complainants with opponent No.1 and payment of booking amount, however, contended that complainants failed, neglected and refused to pay further installments of the price and hence, opponent No.1 cancelled the agreements and forfeited the booking amounts.  It was contended that transactions do not fall within purview of Consumer Protection Act, 1986 and hence, complaints are not maintainable.  It was contended that complainants had booked in all twelve flats in the project of opponent No.1.  Opponent No.1 denied that Mr.Madanlal Jain, Mr.Vivek Jain, Mrs.Savita Jain and Mr.Kesrimal Jain are Partners/Authorised Managers of Shri Shiv Sai construction Co.  Opponent No.1 has prayed for dismissal of complaints with compensatory costs.

9.       Other opponents, who are subsequent flat purchasers, impleaded as per order of Hon’ble National Commission resisted the complaints by filing their written version and contended that they are bonafide purchasers of their respective flat for consideration from opponent No.1 and do not have knowledge about litigation pending between complainant and opponent No.1.  They also contended that complainant-company proposed to purchase the flats in bulk for commercial purpose and hence, complainant-company is not a consumer and therefore, complaints are not tenable.  It was also contended that this Commission has no jurisdiction to entertain the complaint and prayed for dismissal of complaint.

10.     Considering the rival contentions of the parties, considering the submissions made before us by all the Advocates, considering the record and scope of the complaints, following points arise for our determination and our findings thereon are noted as against them for the reasons herein below :-

REASONS

11.     Point No.1:- Learned Advocate for the opponents argued that complainants claimed possession of four flats, two flats and six flats in complaint Nos.30/2001, 31/2001 and 33/2001 respectively.  As per recital in the complaints, price of each flat is Rs.11,50,000/-.  Complainants claimed possession of those flats.  Complainants also claimed other reliefs and compensation.  It was argued that even considering the price of the flats claimed in each complaint, it is more than Rs.20 Lakhs.  Complaints were filed in the year 2001.  At the relevant time, pecuniary jurisdiction of this State Commission was upto Rs.20 Lakhs and hence, this Commission has no jurisdiction to entertain these complaints.

12.     Advocate for the complainants has submitted that possession of four, two and six flats are claimed in each complaint.  Learned Advocate for the complainants has further submitted that complainants can file one complaint for more than two flats though having different causes of action.  He also relied on the authority of Hon’ble Allahabad High Court in the case of Inder Bahadur Singh V/s. Sita Ram & Ors., AIR 1941 All 209.  In the said matter, suit was filed against 62 defendants by one Sitla Baksh Singh, the karta of the joint Hindu family with the contentions that transactions were either without consideration or for insufficient consideration and that they were bad for want of legal necessity and also on the ground of immorality of purpose.  The defendants one of the pleas was that suit was bad for multifariousness.  When the matter went before the Hon’ble Allahabad High Court, it was observed by Hon’ble High Court that - “That section does not require the plaintiff to file separate plaints, but provides for the separate trial of the several causes of action contained in the one plaint which was filed on the institution of the suit.” 

13.     We find that said authority is not helpful to the complainants in the present case for simple reason that here the question is not about several causes of action.  Here question is about pecuniary jurisdiction of the Commission.  Here, the complainant claimed possession of four flats in complaint No.30/2001, two flats in complaint No.31/2001 and six flats in complaint No.33/2001.  Each flat is worth Rs.11,50,000/-.  Thus, value of the subject matter is more than Rs.20 Lakhs in each complaint apart from the other claims made in the complaint.  For valuing the complaint for pecuniary jurisdiction, it is necessary to consider the entire claim made in the complaint.  The complaint was filed in the year 2001.  At the relevant time, jurisdiction of this Commission was upto Rs.20 Lakhs.  Hence, it is very clear that this Commission had no pecuniary jurisdiction to entertain these complaints when these complaints were filed before this Commission.

14.     Learned Advocate for the complainants has submitted that now pecuniary jurisdiction of this Commission is raised to Rs.1 Crore and thus, complaints are well within pecuniary jurisdiction of this Commission.  It is submitted that now the complaints cannot be returned on the ground that this Commission has no pecuniary jurisdiction as today this Commission has pecuniary jurisdiction upto Rs.1 Crore.  Learned Advocate for the complainants has submitted an authority of Hon’ble Bombay High Court in the case of Naraindas Mathuradas Narielwala V/s. Mukesh & Co., 1989 AIR (Bom) 262.   It was observed by his Lordship of Hon’ble High Court that - “The basic concern is to do justice and all procedural laws are designed to promote justice, and not to impede the same.  When the law was amended and the jurisdiction was enlarged, it did not mean that all old undecided suits where there was a possibility of excess valuation of over Rs.25,000/- should be first eliminated and then again represented to the same Court.  The Court is bound to take note of the change in law, just as the Court takes note of change of fact, if the same becomes relevant.  The fact that by the time the suit reaches hearing, the Court’s pecuniary jurisdiction stands enlarged, would at once make the said contention a non-issue.  If the learned Judge’s order is accepted, it would only mean that after 16 years of life of this suit, the plaint would be returned to the plaintiff now, and he would present the same again to the same Court so that it would be treated as a fresh suit so as to last for another two decades.  This is nothing but total injustice to the plaintiff, and would reduce the system of justice to a farce.” 

15.     Keeping in view said authority, it can be stated that it may not be just and proper to return the complaints today on the ground that this Commission had no pecuniary jurisdiction to entertain these complaints when these complaints were filed.  The reason is that if the complaints are returned then those complaints cannot be filed before the Hon’ble National Commission as the pecuniary jurisdiction of the National Commission is more than Rs.1 Crore and again, those complaints will have to be filed before this Commission only.  However, we find that the facts of the present case are very material for deciding this aspect of the matter.  The pecuniary jurisdiction of this Commission was enhanced to Rs.1 Crore with effect from 15/03/2003.  If that amendment is considered which was effected on 15/03/2003, then another amendment in the law on that date is also to be considered.  Section 2(1)(d) of Consumer Protection Act, 1986 was also amended on 15/03/2003 and it was inserted by said amendment that “but does not include a person who avails of such services for any commercial purpose.”  If that amended definition of the consumer is considered, then complainant which is a company and booked flats in bulk for the purpose of company cannot be a consumer.  On this ground, complaints cannot be entertained.  It is because of that this Commission cannot decide these complaints on merit by considering amended provision about enhancement of pecuniary jurisdiction of this Commission.  If that amendment is considered which is effected on 15/03/2003, then another amendment in the definition of consumer which is also effected on the same date is also required to be considered and thus, we find that the complaints are to be returned to the complainants as this Commission has no jurisdiction to entertain these complaints.

16.     Learned Advocate for the complainant relying on the authority of Hon’ble Supreme Court in Appeal (Civil) No.5721 of 2006 in the case of Hasham Abbas Sayyad V/s. Usman Abbas Sayyad & Ors. decided on 12/12/2006 has contended that objection about jurisdiction is to be raised at the earliest.  So far as territorial and pecuniary jurisdictions are concerned, objection to such jurisdiction has to be taken at the earliest possible opportunity and in any case at or before settlement of issues.  The law is well settled on the point that if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage.  Jurisdiction as to subject matter, however, is totally distinct and stands on a different footing.  Where a court has no jurisdiction over the subject matter of the suit by reason of any limitation imposed by statute, charter or commission, it cannot take up the cause or matter. 

17.     Learned Advocate for the opponents argued that objection of jurisdiction was taken by the opponents in their written version.  It is further material to note that in the said authority, suit for partition was filed in the Civil Court.  Here in the present case, the consumer complaints are filed before the State Commission.  In the civil suit, there is a stage of settlement of issues.  Whereas, in the consumer complaint there is no stage of settlement of issues.  The consumer complaint is to be tried and decided summarily and hence, that authority is not helpful to the complainant in the present matters.

18.     Apart from that it is the duty of the Consumer Fora to see whether complaint filed is within the jurisdiction of the Forum where the complaint was filed.  It appears that concerned officials and even the Members of this Commission have not noticed that pecuniary jurisdiction of the complaint is more than Rs.20 Lakhs and because of that complaints were registered.  However, it is material to note that complainant in each complaint is responsible for that.  The reason is that in the complaint, it is specifically mentioned that total claim amount is less than Rs.20 Lakhs.  Considering said recital, the concerned officials and even the Members of this Commission would have prima-facie accepted that the complaints are within the pecuniary jurisdiction of this Commission and it is because of that initially this point was not dealt with.  It is because of that mistake or mischief committed by the complainant; the complaints were lingering from 2001 to 2015.  It is because of this reason also the complaints are to be returned to the complainants as this Commission has no pecuniary jurisdiction to entertain these complaints.  Hence, we answer Point No.1 accordingly.

19.     Point Nos.2to7 :-  In view of answer of Point No.1, other points do not survive as decision will be without jurisdiction. 

20.     Point No.8 :-  In view of answers of Point No.1 and Point Nos.2to7, all these complaints deserve to be returned to the complainants.  Hence, the order :-

                             -: ORDER :-

1. For want of jurisdiction, Complaint Nos.30/2001, 31/2001 & 33/2001 be returned to the complainants.
2. In the circumstances, no order as to costs.
3. One set of each complaint compilation be retained and rest of the sets be returned to the complainants.
4. Copies of the order be furnished to the parties.

Pronounced

Dated 8^th May 2015.