NCDRC

NCDRC

FA/1478/2017

MARIANO MATIUS LOBO & ANR. - Complainant(s)

Versus

SIDDHARTH RAJ ESTATE & 10 ORS. - Opp.Party(s)

M/S. DEHADRAI & CO.

14 Nov 2024

ORDER

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
 
FIRST APPEAL NO. 1478 OF 2017
(Against the Order dated 24/03/2017 in Complaint No. 16/2016 of the State Commission Goa)
1. MARIANO MATIUS LOBO & ANR.
S/O MR. MATIUS LOBO, R/O HOUSE NO.366/E, TIP TOP MANSION-III, MARGO ROAD, DHAVALI, PONDA
GOA
2. MRS. MARIA CONCEICAO M.LOBO,
W/O MR. MARIANO MATIUS LOBO, R/O HOUSE NO.366/E, TIP TOP MANSION-III, MARGO ROAD, DHAVALI, PONDA,
GOA
...........Appellant(s)
Versus 
1. SIDDHARTH RAJ ESTATE & 10 ORS.
THROUGH ITS PROPRIETOR, MR. BAPTIST COELHO, R/O GROUND FLOOR, ESPARANCE II, BORIM, PONDA,
GOA
2. MR. TULSHI DAS VISHVANATH KAVLEKAR,
R/O MANOHAR APARTMENT, 1ST FLOOR, SHANTINAGAR, PONDA,
GOA
3. MRS. AHILYA TULSHIDAS KAVLEKAR.
MANOHAR APARTMENT,1ST FLOOR, SHANTI NAGAR, PONDA
GOA.
4. MR. JOSE FANCISCO DIAS.
NEAR I.D. HOSPITAL, SANTA CRUZ, PONDA.
GOA.
5. MRS. ROSA JULIATA PEREIRAE DIAS.
NEAR I.D. HOSPITAL, SANTA CRUZ, PONDA.
GOA.
6. MR. DIANOSTO DIAS.
BEHIND QUADROS SUZUKI, DAVALI, PONDA
GOA.
7. MRS. SOCCIRNHA FRANCISCO DIAS.
BEHIND QUADROS SUZUKI, DAVALI,PONDA.
GOA
8. MR. JASCINTO DIAS.
SAPNA TOWN, 4TH FLOOR, ABOVE L.K. BAKERY, UPPER BAZAR, PONDA.
GOA.
9. MRS. ARCANDA JONITA DIAS.
SAPNA TOWN, 4TH FLOOR, ABOVE L.K. BAKERY, UPPER BAZAR, PONDA.
GOA.
10. MR. REIS MAGOS DIAS.
YESHWAT NAGAR, PONDA.
GOA.
11. MRS. CLEMENTINA PEREIRAE DIAS
YESHWAT NAGAR, PONDA.
GOA.
...........Respondent(s)

BEFORE: 
 HON'BLE MR. SUBHASH CHANDRA,PRESIDING MEMBER
 HON'BLE DR. SADHNA SHANKER,MEMBER

FOR THE APPELLANT :

Dated : 14 November 2024
ORDER

For the Appellant (s)      :    Mr. Jai Anant Dehadrai, Mr. Martin G. George,

                                       Mr. Siddharth Sharma and Mr. Tasnimul

                                       Hassan, Advocates                       

For the Respondent(s)    :    Mr. Amrendra Kumar Tiwari, Advocate

                                       for R-1  

                                       R-2 to 11 ex parte vide order dt.19.04.2023

ORDER

PER SUBHASH CHANDRA

1.     This Appeal under Section 19 of the Consumer Protection Act, 1986 (for short the “Act”) assails the order dated 24.03.2017 of the Goa State Consumer Disputes Redressal Commission (for short "the State Commission") in Complaint No.16 of 2016 disallowing the same.

2.      Delay of 69 days in filing of this Appeal was considered in light of the application bearing IA No.10254 of 2017 and in the interest of justice, the delay was condoned.

3.      We have heard the learned Counsel for the parties and perused the records.

4.      The relevant facts of the case, in brief, are that the Appellants had entered into an Agreement of Sale (in short, the ‘Agreement’) on 21.01.2008 with the Respondents to purchase Flat No.T-2 admeasuring 87 sq. mtrs. situated on the third floor of the building known as “Mount Carmel” at Tisk, Ponda, Goa for a sale consideration of ₹8,70,000/-.  As per this Agreement, possession was to be handed over on 16.08.2008 along with Occupancy Certificate.  Despite receipt of all installments of the sale consideration periodically except the final installment of ₹1,10,000/-, the said flat was not handed over as promised.  A written notice dated 08.02.2016 seeking possession with Occupancy Certificate and Sale Deed or compensation in lieu thereof was issued to the Respondents who admitted inability to hand over the same vide reply dated 23.02.2016 and sought more time to comply.  As no date was indicated or specific reasons provided in the reply, Appellants served a legal notice on the Respondents dated 01.04.2016 which was not replied to.  Thereafter, Complaint No.60 of 2016 was filed before the State Commission which was disposed of on contest dismissing the complaint.  This order is impugned before us.

5.     According to the Complainants, the State Commission erred in dismissing the complaint on the grounds of the complaint being barred by limitation and being beyond the pecuniary jurisdiction of the State Commission without adjudicating it on merits.  The Appellants contend that the State Commission erred in holding that the period of limitation commenced from 16.08.2008, i.e., the promised date of delivery of possession under the Agreement of Sale dated 12.11.2007.  It was contended that the Appellants had a continuous cause of action since possession had not been delivered till date and no refund had been made in terms of the judgment of the Hon’ble Supreme Court in Meerut Development Authority vs. M. K. Gupta, IV (2012) CPJ 12. 

6.      Reliance was also placed on the following judgments of this Commission and the Hon’ble Supreme Court:

i)      Emaar MGF Land Ltd. & Anr. Vs. Pawanjeet Singh, First Appeal No.40/2019

ii)      Delhi Development Authority through its Secretary vs. Krishan Gupta, 2021 SCC Online NCDRC 580

iii)     Saroj Kharbanda vs. Bigjo’s Estates Ltd. (2018) SCC Online NCDRC 254

iv)     Ansal Housing and Construction Ltd. vs. Tulika Gupta, 2017 SCC Online NCDRC 1527

v)     Niru Kaushal & Anr. Vs. Unitech Limited & Ors., 2017 SCC Online NCDRC 1192

vi)     Satish Kumar Pandey vs. Unitech Limited, CC No.427 of 2014

vii)    Lata Construction vs. Rameshchandra Ramniklal Shah & Anr., (2000) 1 SCC 586

 

7.      It was contended that the State Commission had wrongly held that the complaint did not fall within its pecuniary jurisdiction as it had not quantified the claim amount and was, therefore, perverse and contrary to the settled proposition of law.  It was also contended that the complaint was filed claiming refund of ₹8.76 Lakhs with compensation of ₹60 Lakhs with interest @ 18% p.a. w.e.f. 01.01.2016 and that the total amount claimed on the date of filing was approximately ₹83,95,000/- which did not exceed the pecuniary limit of the State Commission under Section 17 (a) (i) of the Act even including the claim for mental harassment of ₹10 Lakhs and medical expenses.  Reliance was placed by the Appellants on the judgment of this Commission in Renu Singh vs. Experion Developers Pvt. Ltd. CC No.1703 of 2018 and Pyaridevi Chabiraj Steels Pvt. Ltd. vs. National Insurance Company Ltd., 2020 SCC Online NCDRC 845. 

8.      It was also contended that the delay in offering possession amounted to deficiency in service and delay in offering possession had been accepted by the Complainants.  In this regard reliance was placed on Pioneer Urban Land and Infrastructure Limited & Anr. Vs. Union of India & Anr. (2019) 8 SCC 416 and Wg. Cdr. Arifur Rahman Khan & Anr. vs. DLF Southern Homes Pvt. Ltd. (2020) 16 SCC 512.  It was, therefore, prayed that the matter be remanded back to the State Commission for disposal on merits in a time bound manner.

9.      Per contra, Respondent No.1 contended that the impugned order was right and required to be upheld since the delay in offering of the possession of the flat was on account of the fact that the Respondent No.1 had failed to remove the shed and two houses belonging to Respondents No.2 to 11 and, therefore, the premises were not made available for construction.  It was contended that possession of the flats was to be handed over by Respondent No.1 within 36 months from the date of municipal licence and conversion of the plot to non-agricultural use with an additional period of six months as grace period on account of force majeure circumstances.  It was contended that Appellants did not adhere to the schedule of payment as per Agreement of Sale dated 12.11.2007 and did not make timely payments.  The work on the project could commence only in 2009 which was in the knowledge of the Appellants and the Appellants were also yet to pay the balance amount of ₹1,10,000/- which was payable at the time of execution of Sale Deed along with other amounts towards formation of society, maintenance, taxes etc. stipulated in the Agreement.  It was contended that the Appellants had not disclosed the full details and the claim of compensation of ₹60 Lakhs was exorbitant and was not part of the Agreement of Sale between the parties.  Reliance was placed on the judgment of the Hon’ble Supreme Court in Ireo Grace Realtech (P) Ltd. vs. Abhishek Khanna, (2021) 3 SCC 241 wherein the Apex Court had granted refund of money with interest @ 9% p.a.  It was contended that there was no deficiency in service on their part as the delay was on account of reasons beyond the control of the Respondent and that the State Commission had rightly held that there was no willful default on the part of the Respondent.  It was accordingly prayed that the Appeal be dismissed.

10.    From the facts of the case, it is evident that as per the Agreement to Sale dated 02.11.2007, a sale consideration of ₹8,70,000/- Lakhs for the flat in question had been agreed upon between the parties and the Respondent had agreed to hand over possession within 42 months (including six months of grace period) from the date of the agreement.  While the same was made subject to necessary municipal permissions, it is evident, by the Respondent’s own admission, that construction only commenced in 2009.  The Respondent has admitted to the delay in construction in their reply to the Appellant’s letter dated 23.02.2016 but has not indicated any date of handing over of flat in question as held in M. K. Gupta (supra).  In view of possession not having been offered, the Appellants have a continuous cause of action and the State Commission has clearly fallen into error in not considering this settled position of law and holding that the complaint was barred by limitation. 

11.    As per Section 17 (a) (i) of Consumer Protection Act, 1986, pecuniary jurisdiction of the State Commission has clearly been held to be the value of the claim in terms of Renu Singh (supra) of this Commission.  The pecuniary jurisdiction of the State Commission under the Consumer Protection Act, 1986 (as amended w.e.f. 15.03.2003) was ₹1 Crore.  Thus, as per the Act, as it stood on the date of filing of the Complaint before the State Commission, the claim of the Appellants cannot be held to be in excess of the pecuniary jurisdiction permitted to the State Commission.  Thus, it is also evident that the State Commission has fallen into error in holding that the pecuniary jurisdiction of the State Commission had been exceeded since the claim in the complaint filed before it amounted to ₹83,95,000/-. 

12.    From the facts of this case, it is apparent that the State Commission considered two preliminary issues pertaining to Limitation with regard to the filing of the Complaint before it and that of Pecuniary Jurisdiction with regard to the claim preferred by the Complainant.  On both the issues, it had                held against the Complainant who is the Appellant herein.   It had thereafter

 

 

proceeded to adjudicate the matter on merits.  As discussed above, the State Commission has fallen in error in adjudicating the Complaint on merits having ousted the Complainant on grounds of both Limitation under Section 24 A of the Act and Preliminary Jurisdiction under Section 17 (a) (i) of the Act.  The Hon’ble Supreme Court and this Commission have held in a catena of cases that once a Complaint is decided on the threshold of maintainability to not lie, the consumer fora should not proceed to decide it on merits.  In the present case, the impugned order of the State Commission has proceeded to do so and is, therefore, liable to be set aside for this reason alone.

13.    In view of the foregoing, we find merit in the Appeal which warrants interference in the order of the State Commission.  Accordingly, the First Appeal is allowed and the order of the State Commission is set aside.  As prayed, the matter is remanded back to the State Commission with direction to adjudicate the same on merits in accordance with law, preferably within a period of four months after due opportunity to both the parties.  We wish to make it clear that at this stage we do not express any views on the merits of the case.

14.    Both parties are directed to appear before the State Commission on 28.11.2024.

 

15.    Pending applications also stand disposed of with this order.

 

 
......................................
SUBHASH CHANDRA
PRESIDING MEMBER
 
 
.............................................
DR. SADHNA SHANKER
MEMBER

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