To-day is fixed for order which has arisen out of hearing of two petitions one of dated 05.02.2018 and another of dated 26/03/2018 filed by the OPs of this case where point of limitation in filing the instant case and that of pecuniary jurisdiction of Forum respectively have been under challenge. Against both these petitions, complaint has filed written objections accordingly and prayer has been made therein for rejection and dismissal of both the petitions. Both the petitions are thus questioning the maintainability of this instant case before this Forum.
Now we are taking together the consideration of these two petitions as because such is necessary for real adjudication over the matter of maintainability.
At the time of consideration we have borne in mind, the submissions of Ld. advocates of both sides, perused the petitions, the written objections and other relevant materials on case record including documents and the referred cases and principles as laid down therein for our guidance for disposal of the matter in question.
It is important to note that matter of limitation, if it expires and that of pecuniary jurisdiction, if it exceeds District Forum’s capacity each or both plays pivot role in entertaining of a case under C.P. Act, 1986 which are envisaged in section 24A and section 11 of the Act, respectively.
In the petition of complaint itself it is mentioned that complainant purchased 1612.50 sqft residential flat at 3rd floor together with the covered car parking space measuring 150sqft at Ground Floor by virtue of a deed of sale bearing No. 6270 for the year 2014 which is specifically is of dated 22/08/2014. The amount of valuable consideration paid against that purchased has not been whispered in the complaint but from submitted deed itself which further tallied from the petition dated 26.03.18 it appears that said purchase value was Rs. 33,00,000/- (Rupees thirty three lakhs only).
Now, complainant’s allegation is that OPs though handed over possession of flat has not yet handed over possession of parking area in ground floor, the valuation of which area as mentioned in written
Contd…P/2
(2)
objection on own calculation is Rs. 2,80,851/- and claimed in this case in total Rs. 5,95,851/-. So it is stated that this forum has had pecuniary jurisdiction to proceed with this case as the same is below Rs. 20 lakhs.
Perused the petition dated 26.03.2018 of OPs and during argument of OP’s Ld advocate, we consider, that OP side has rightly, referred a case before this Forum as reported in (2017) 1CPJ/(2016)4CPR83 which has been decided by Hon’ble National Consumer Disputes Redressal Commission in between Ambrish Kumar Sukla- Appellant Vs Ferrous Infrastructure Pvt. Ltd. –Respondent on 07/10/2016 where while observed as regards Section 11 of the Act, 1986, it has been enshrined therein that, if the aggregate of the value of (i) the goods or services and (ii) the compensation, if any, claimed in the complaint exceeds Rs. 20 lakhs, the Forum would have no pecuniary jurisdiction to entertain a complaint.
It is further observed that it is the value of the goods of 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.
So, here in this case the value of flat is Rs. 33,00,000/- which itself enough to exceed pecuniary jurisdiction of Rs. 20 lakhs, and if compensation amount/ claim is added to that which is Rs. 5,95,851/- then it reaches to a far amount further from 33,00,000/- lakhs.
So, we are of the considered view that where our National Consumer Disputes Redressal Commission has been pleased to hold emphatically that “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” then this instant case is definitely out of pecuniary jurisdiction.
Hence, the petition dated 26.03.2018 of the OPs on this backdrop is allowed and this Forums fails to get this case within the limits of pecuniary jurisdiction as per Section 11 of the Act and accordingly this case is not maintainable in the eye of law, so it is not maintainable particularly as per Section 11 of the Consumer Protection Act, 1986.
Contd…P/3
(3)
Secondly, another petition dated 05/02/2018 which is for maintainability of the instant case over limitation ground is now taken up for order. Though it has been ascertained by disposal of previous application dated 26.3.2018 as filed by the same OPs of this case that the instant case is not maintainable at all on the ground of precautionary jurisdiction which exceeds the limit of the district Forum still we do consider that this petition dated 05.02.2018 is required to be looked into with judicial mind application.
From the complaint as already mentioned by us here earlier, it appears that complaint purchased the residential Flat in question with Parking area by virtue of a deed of sale being no 6270 on 22.08.2014 but as the opposite party failed to make deliver the vacant physical possession of the covered parking space, the complainants had served a legal notice dated 29.08.2017 and it is stated in the complaint that cause of action arose in the middle of the month of August, 2017 which is a continuous one. So it is filed within time. But it is questioned by us while considering that why it would be taken as continuing cause of action. It appears to us palpably that after expiry of more than three years from the date of purchase of flat and expiry of more than one year from the expiry of stipulated period of limitation for filing of the case this instant case has been instituted. There is no document to show that cause of action was continuing since after two years time till date of issuance of notice by the complainant’s Ld. advocate on 29.08.2017. So the plea of continuous cause of action is nothing but a myth.
In the instant case, the complaint was filed beyond two years from the date of accrual of cause of action which is barred by limitation as envisaged in Section 24A of the C.P. Act, 1986.
The question of limitation is a mandate to the Forum and in this case there was no application for condonation of delay, nor any sufficient cause shown and as such the question of condonation of delay in filing the complaint did not arise.
Contd…P/4
(4)
Section 24 A of the Consumer Protection Act, 1986 while inserted w.e.f. 18.06.1993 after amendment for the first time prescribed that the District Forum shall not admit a complaint unless the same is filed within two(2) years from the date on which cause of action arose.
It is the duty of the Consumer Forum to take notice of Section 24A of the Act and to give effect to it.
Accordingly the petition dated 05.02.2018 is considered by us & allowed. Both the petitions dated 05.02.2018 and 26.03.2018 are thus disposed of on contest but without cost. Hence, the instant case is barred by limitation also and thus not maintainable.
