Date of filing : 06.08.2018

Judgment : Dt.11.03.2020

Mrs. Sashi Kala Basu, Hon’ble President

            This petition of complaint is filed under section 12 of C.P.Act, 1986 by Sri Amit Das alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) Sri Debasish Sarkar, (2) Sri Samir Kumar Halder and (3) M/S Millenium India Construction.

            Case of the Complainant, in short, is that by an agreement for sale dt.10.5.2014, Complainant agreed to purchase a flat from the OPs and towards consideration price he has paid Rs.19,00,000/-/. The OPs undertook to complete and handover the vacant and an unencumbered flat to the Complainant within 24 month from the date of execution of the agreement. Complainant had agreed to purchase a flat measuring about 1540 sq.ft., being flat No.15, situated in the 5^th floor of premises No.237, N.S.C.Bose Rd., P.O.-Naktala, P.S.-Patuli, along with one open car parking space. In spite of payment of Rs.19,00,000/- OPs have neither handed over the flat and car parking space nor have refunded the money. A letter dt.1.6.2018 was sent by the Complainant to the OPs and in response to the same they stated they would return the entire advanced amount, but no payment has been made. So, the present complaint has been filed praying for directing the OPs to return the said amount of Rs.19,00,000/-, to pay interest @18% on the said sum, to pay compensation of Rs.30,000/- and also cost of the suit.

            Complainant has annexed with the complaint – copy of the agreement for sale dt.10.5.2014, money receipts, letter dt.1.6.2018 sent by the Complainant to the OPs, reply sent by the OPs dt.21.6.2018 and the copy of the notice dt.6.7.2018 sent by the Complainant through his Ld. Advocate to the OPs.

            OPs have contested the case by filing the written version denying and disputing the allegations contending inter alia that this Forum has no pecuniary jurisdiction as the consideration price of the flat is Rs.46,00,000/-. OPs requested the Complainant to pay the balance consideration amount several times and after that to take vacant possession. But the Complainant asked for refund of the earnest money. The OPs were ready to return the earnest money to the Complainant and accordingly a letter was also sent by the OP. So, the OPs have prayed for dismissal of the case.

            During the course of trial, both parties have filed affidavit-in-chief, followed by filing questionnaire and reply thereto and ultimately argument has been advanced. Complainant has also filed brief notes of argument.

            So the following points require determinations

1. Whether complaint in its present form is maintainable?
2. Whether there has been any deficiency in service on the part of the OPs?
3. Whether the Complainant is entitled to the relief as prayed for?

Decision with reasons

Point No.1 : Complainant has claimed that by an agreement dt.10.5.2014 he agreed to purchase a flat as described in the schedule B of the complaint and he has paid an amount of Rs.19,00,000/- as part payment. So far as payment of Rs.19,00,000/- is concerned, it appears from the reply dt.21.6.2018 sent by the OPs, said payment by the Complainant has not been disputed and denied and they have stated that they would return the said sum directing the Complainant to visit their office. However, on perusal of the agreement, it appears that the consideration price was fixed at Rs.46,00,000/-. It is now well settled principle of law that for the purpose of determination of pecuniary jurisdiction, the value of the goods or service hired and the amount of the compensation claimed in the complaint have to be taken into consideration. Relying in the decision of Ambrish Kumar Shukla VS Ferrous Infrastructure Pvt. Ltd., Hon’ble NCDRC held in case of Mukesh Makker VS M/S IREO Grace Realtech Pvt. Ltd. & others, in consumer case No.752/2018 that “the value of the service in such cases would mean the sale consideration agreed to be paid by the flat buyer to the builder. The amount actually paid by the flat buyer to the builder would absolutely have no relevance in such a case”. This decision of Mukesh Makker was delivered by the Hon’ble NCDRC on 30.07.2019. In such a situation, the ruling relied upon by the Complainant in case of  Pradip Kumar Bera VS M/S Three C Shelters Pvt. Ltd. in CC Case No.3741 of 2017, delivered on 20.02.2018 cannot be applicable as the c ase law of Mukesh Makker (Supua) is later in point of time. Again in the case of Renu Singh VS Experion Developers Pvt. Ltd. reported in 2018 (3) CPR 138(NC) delivered on 29.6.2018, Hon’ble NCDRC following the decision in Ambrish Shukla held that the value of the entire unit has to be considered for the purpose of pecuniary jurisdiction. In the said case only refund of amount paid was claimed by the Complainant. So, even though Complainant in this case has prayed for refund of the sum of Rs.19,00,000/- paid by him, but as the settled consideration price was Rs.46,00,000/- which exceeds the pecuniary jurisdiction of this Forum of Rs.20,00,000/-, this Forum lacks the pecuniary jurisdiction and thus the complaint, is not maintainable. So, complaint h as to be returned to the Complainant for its presentation before the appropriate Forum.

Point No.1 is thus answered accordingly.

Point No.2 & 3 : In view of the discussions highlighted above in point No.1 as it is already held that this  Forum lacks the pecuniary jurisdiction, these points becomes redundant and thus not discussed.

            Hence

                          ordered

            CC/488/2018 is dismissed being not maintainable. Complaint be returned to the Complainant for its presentation before the appropriate forum.