Per Shri P.N. Kashalkar, Hon’ble Presiding Judicial Member
Mr.P.M. Gore, Advocate present for the appellant. Mr.Nitin Kittur, respondent No.2 present for himself and for respondent No.1. Respondent No.3 is not at all necessary party in this appeal. No order has been passed against respondent No.3 and therefore, even though respondent No.3 is not there, we can dispose of this appeal after hearing the parties who are present before us.
2. We are finding that respondent Nos.1&2 had booked a flat with appellant on 22/10/2004 and they paid `65,000/- in all towards purchase price of the flat. The appellant had executed the agreement of sale of the flat in favour of respondent Nos.1&2. They also paid registration charges and the agreement was duly registered. However, thereafter, respondents wanted to take bank loan and for obtaining bank loan, respondents were asked to submit documents and respondents approached the appellant and asked for documents, but appellant did not bother to give documents and therefore, they could not procure housing loan from any bank. After sending 2-3 notices, they approached the District Consumer Disputes Redressal Forum by filing consumer complaint and prayed inter alia that builder should be directed to give all the documents required for procuring housing loan. They also prayed that the builder should be directed to give possession of the flat at the earliest. Alternatively, the complainants had prayed that builder should be directed to give compensation of `19,95,000/- for purchasing new flat by the complainants at the market rate. They also prayed for `23,000/- which they had paid for the stamp duty and registration charges and they prayed that besides costs of the complaint, they should be awarded compensation for mental harassment of `4 Lakhs.
3. The complaint was contested by the appellant by filing written version and they denied most of the allegations made by the complainants, but pleaded that agreement was cancelled and they returned the amount to the complainants. They denied that complainants had ever asked for documents to procure housing loan from any bank. According to them, their project was already approved by ICICI Bank and complainants would have got housing loan from said Bank. They denied that they ever failed to do construction of the building. According to them, they already constructed the building and obtained commencement certificate. They therefore prayed that complaint should be dismissed with costs.
4. District Consumer Disputes Redressal Forum allowed the complaint partly and simply directed the appellant/builder to provide necessary documents to the complainants/respondents herein within two weeks, so that they can procure housing loan from the bank and thereafter accepting the agreed consideration, the District Consumer Disputes Redressal Forum directed that the complainants should be given possession of the flat No.403 in building A-4, 4th floor, Ganga Samruddhi, Goyal Properties, Survey No.43/5, Wanwadi, Pune, as per the agreement. The District Consumer Disputes Redressal Forum also awarded compensation of `25,000/- by way of mental harassment and `1,000/- towards costs. Aggrieved by this order, this appeal has been filed by org. opponent/builder.
5. We heard Mr.P.M. Gore, Advocate for the appellant and Mr.Nitin Kittur, respondent No.2 for himself as well as for respondent No.1.
6. Advocate Mr.Gore submitted before us that District Consumer Disputes Redressal Forum should not have passed the order in as much as District Consumer Disputes Redressal Forum had no jurisdiction to entertain and try this consumer complaint. He took us to the alternate prayers of the complaint presented in the District Consumer Disputes Redressal Forum and tried to show us that complainants alternate prayers involving monetary claim exceeded the pecuniary jurisdiction of the District Consumer Disputes Redressal Forum. Sum total of the reliefs they had prayed for in the alternative prayers were totaling above `20 Lakhs and therefore, District Consumer Disputes Redressal Forum erred in law in taking cognizance of this complaint and in deciding the consumer complaint. The award passed by the District Consumer Disputes Redressal Forum is beyond the pecuniary jurisdiction of the District Consumer Disputes Redressal Forum and as such, he submitted that the appeal should be allowed and either complaint should be remitted back for amendment or it should be dismissed.
7. We are finding that this plea was not at all raised by the appellant in the written version. We insisted upon Advocate Mr.Gore to point out from the written version filed in the District Consumer Disputes Redressal Forum, whether they had taken an objection to the pecuniary jurisdiction of the District Consumer Disputes Redressal Forum with reference to claim made by the complainants in their complaint. We are sorry to find that there is no whisper in the written version presented by the appellant in the District Consumer Disputes Redressal Forum that said District Consumer Disputes Redressal Forum had no pecuniary jurisdiction to try and entertain the present complaint. When the appellant himself had gave up the plea of pecuniary jurisdiction which was very much available to them while filing written version, appellant cannot be heard to say in the appeal that District Consumer Disputes Redressal Forum had passed award beyond its pecuniary jurisdiction. It was tried to be contended by Counsel for the appellant that plea of jurisdiction being one going to the root of the jurisdiction of the District Consumer Disputes Redressal Forum, it could be raised and can be raised even at the appellate stage. However, we are of the view that by not raising the issue of pecuniary jurisdiction in the written version, the appellant must be said to have acquiesced to the consumer complaint. Cognizance of complaint was taken by the District Consumer Disputes Redressal Forum ignoring the alternate prayers made by the complainants and this was a consumer complaint filed by the complainants personally. Complainants did not know nicety of law. In the main prayers of the complaint, complainants had simply sought award for directions to the opponents/appellants herein to give all the documents required for taking housing loan from the Bank and they also prayed for grant of monthly housing rent of `7,000/- per month. They also prayed for interest @ 18% p.a. on the amount of `65,000/- which they paid at the time of booking of the flat. The main prayers were within the pecuniary jurisdiction of the District Consumer Disputes Redressal Forum. District Consumer Disputes Redressal Forum seems to have ignored the alternate prayers and passed the award which was within the pecuniary jurisdiction of the District Consumer Disputes Redressal Forum. It is for this reason and more particularly, for the acquiescence made by the appellants in not taken up the issue in the written version, we are finding that the order passed by the District Consumer Disputes Redressal Forum cannot be said to be passed beyond the pecuniary jurisdiction of the District Consumer Disputes Redressal Forum and for this reason, not agreeing with Advocate Mr.Gore that appeal should be allowed, we are of the view that there is no merit in the appeal filed by the builder/developer (opponent in the complaint). In the circumstances, we are finding that this is not a fit case to admit the appeal. As such at the stage of admission itself, we pass the following order:-
-: ORDER :-
1. Appeal is rejected at the time of admission itself.
2. No order as to costs.
3. Copies of the order be furnished to the parties.
Pronounced
Dated 18th April 2012.
