DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (CENTRAL)

                                        ISBT KASHMERE GATE DELHI

CC/ 138/2016

No. DF/ Central/

SH. MANISH MALIK,

R/o: 17-B, Nilgiri-I,

Sector-34,Noida-201301
                                                                                                                                     

                                                                                  ……..COMPLAINANT              

 VERSUS

                               
THE MANAGING DIRECTOR
Sunworld Developers Pvt. Ltd.
Registered Office: 117, Hans Bhawan

1, B.S.Z.Marg, New Delhi 110002                                                                                                                                                                                                                           

                                                                                            …..OPPOSITE PARTY

                                                              ORDER                                       

Rekha Rani, President

1.   Sh. Manish Malik (  complainant) filed  the instant complaint  U/s 11,12  of the Consumer Protection Act 1986 (in short the Act) stating therein that he booked a residential apartment no. 1702 Tower :Block T-3 (17^th Floor), GH-18, Sector 107, Noida under scheme Sunworld Vanalika floated by M/s Sunworld Developers Pvt. Ltd (OP). Complainant opted for construction linked payment plan vide agreement dated 11.02.2012. The total cost of the apartment was Rs. 1,50,77,156/- as per the agreed payment plan. Complainant was forced to make payments much in advance of the due dates. OP was bound to handover possession of the residential unit on or before 10^th December 2014.  OP raised an additional demand of Rs. 1,04,101/-.   Complainant  was forced to make the said  payment. OP handed over possession on 20.02.2016 after additional payment of Rs. 1,04,101/- on 13.02.2016. Complainant on inspection of the flat noted certain defects  in the quality of construction and  finishing and accordingly requested the OP to rectify the same but nothing has been done which is unlawful. Hence , the complaint wherein complainant has prayed for refund of Rs. 1,04,101/- with interest @ 18% p.a. from 14.02.2016 till the date of payment,  Penalty @ Rs. 5/- per sq. ft. per month  of Rs. 3400/- per sq. ft. amounting to Rs. 2,38,000/- for causing delay in delivery of  possession for 14 months  and compensation of Rs. 1,00,000/- for deficiency in service and defective /substandard finishing.
2. On receipt of notice the OP has appeared and contested  the claim vide its written statement inter-alia  on the  ground that this forum has no jurisdiction to adjudicate upon the dispute involved as the cost of apartment is more than Rs. 20 Lacs and further that complainant had taken possession of the   apartment and signed the documents in respect of the same after his complete satisfaction.
3. We have heard  Sh Vinod  Kumar counsel for complainant.  
4. It is submitted by the complainant in  page2 para 1 (iii) of the complaint   himself that the total cost of the residential unit  was Rs. 1,50,77,156/-  which is beyond the pecuniary jurisdiction of this forum.
5. As per Section 11 (i) of the Act the District Forum has pecuniary        jurisdiction to adjudicate claims where the value of goods and services and the compensation claimed does not exceeds Rs. 20 Lacs.
6.  Three member bench of National Commission in Ambrish Kumar Shukla & Ors Vs Ferrous   Infrastructure Pvt Ltd in CC No. 97/2016 vide order dated 07.10.2016  observed that value of goods & services  and value of the relief claimed  is to be   seen for the purpose of pecuniary jurisdiction instead of value of alleged  deficiency.
7. The same question again came up  before National Commission in Rajkishore V/s TDI Infrastructure Ltd III (2017) CPJ 155. In that case total sale price of the property was above Rs. 20,00,000/- but complainant sought refund of Rs. 8,06,300/- charged in excess by the OP. Complaint was filed before State Commission which was dismissed vide order dated 16.02.2016 on the issue of pecuniary jurisdiction with liberty to file fresh complaint before District Forum.  The complainants went in appeal contending that consumer dispute involved property whose value was above Rs. 20,00,000/-(Rs. Twenty Lacs only) National Commission allowed the appeal and following Ambrish Kumar Shukla (supra) observed that even if there was a small deficiency in the service availed by the complainant the total value of  the said service is taken into consideration for the purpose of determining   pecuniary jurisdiction.
8. In another case titled  Daimler Financial Services India Vs Laxmi Naryan Biswal in First Appeal no. 1616 of 2017 decided on 30.08.2017 by Hon’ble National Commission  judgment in  Ambrish Kumar Shukla  (supra)  was again referred and following relevant part  of the said judgment was quoted:  

“Reference order dated 11.8.2016   Issue No. (i)   It is evident from a bare perusal of Sections 21, 17 and 11 of the Consumer Protection Act that it's the value of the goods or services and the compensation, if any, claimed which determines the pecuniary jurisdiction of the Consumer Forum. The Act does not envisage determination of the pecuniary jurisdiction based upon the cost of removing the deficiencies in the goods purchased or the services to be rendered to the consumer. Therefore, the cost of removing the defects or deficiencies in the goods or the services would have no bearing on the determination of the pecuniary jurisdiction. If the aggregate of the value of the goods purchased or the services hired or availed of by a consumer, when added to the compensation, if any, claimed in the complaint by him, exceeds Rs.1.00 Crore, it is this Commission alone which would have the pecuniary jurisdiction to entertain the complaint. For instance if a person purchases a machine for more than Rs.1.00 Crore, a manufacturing defect is found in the machine and the cost of removing the said defect is Rs.10.00 lakh, it is the aggregate of the sale consideration paid by the consumer for the machine and compensation, if any, claimed in the complaint which would determine the pecuniary jurisdiction of the Consumer Forum. Similarly, if for instance, a house is sold for more than Rs.1.00 Crore, certain defects are found in the house, and the cost of removing those defects is Rs.5.00 lakh, the complaint would have to be filed before this Commission, the value of the services itself being more than Rs.1.00 Crore.”

9. The facts of the case in Daimler Financial Services India (supra) were that the complainant had purchased two Hywa Trucks with the financial help of Daimler Financial Services India by taking loan of Rs. 23,55,945/- for each vehicle. Out of the total loan of Rs. 23,86,995/- for each vehicle , the complainant  had already paid the entire loan amount and had agreed to pay the full and  final settlement on 05.04.2016 by making payment of Rs. 14,70,000/- and had received the possession of the vehicle on the same day with further condition that the complainant should withdraw the writ petition bearing no. WP (C ) 2307 of 2016 from the High Court of Odisha. Prior to liquidation of loan / expiry of the agreement the Daimler Financial Services India had seized  the vehicle for which the complainant had approached the High Court of Odisha by way of filing a Writ Petition.  The High Court had issued notice and the Daimler Financial Services India after receiving the notice had called the complainant for a settlement. As per the said settlement the complainant had already paid a sum of Rs. 14,70,000/- towards full and final settlement outstanding in respect of both the vehicles.   Though the complainant in pursuance to the aforesaid settlement had paid the entire amount towards liquidation of loan and had withdrawn the Writ Petition before the High  Court of Odisha, the Daimler Financial Services India   taking advantage of the situation had not issued NOC to the complainant.  The complainant hence filed a  Consumer Complaint before the Odisha State Consumer Disputes Redressal Commission, Cuttack for not granting NOC which was termed illegal deficiency in service and unfair trade practice and  for directing Daimler Financial Services India to issue NOC in respect of the two vehicles.  The State Commission admitted the consumer complaint which was challenged before the Hon’ble National Commission. The  Hon’ble National Commission observed that :

“ Counsel for the appellant has admitted that the respondent/ complainant had taken loan of Rs. 47.74 Lakh,  the cost of service and compensation asked for is Rs. 95,000/-.  Hence the aggregate value of the cost of service hired or availed of and the compensation claimed by the complainant certainly falls within the pecuniary jurisdiction of the State Commission”.

<>10.“In terms of Section 21 of the Consumer Protection Act, this Commission possesses the requisite pecuniary jurisdiction to entertain a consumer complaint, where the value of the goods or services as the case may be, and the compensation, if any, claimed in the complaint, exceeds Rupees One Crore.  As held by a Three-Members Bench of this Commission in CC No.97 of 2016 Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd.,  decided on 07.10.2016, the value of services in such cases, means the sale consideration agreed to be paid by the flat buyer to the builder. The following view was taken by this commission in CC/198/2015 Dushyant Kumar Gupta Vs Today Homes & Infrastructure Pvt. Ltd. and connected matters, decided on 31.01.2017. 

11.  Hon’ble Apex Court has repeatedly held that the question of jurisdiction can be raised at any stage of the proceedings as the court/tribunal/forum is bound to decide the same before proceeding to adjudicate the matter on merits as the issue of jurisdiction goes to the root of the matter and decision of the court/tribunal/forum without jurisdiction is a nullity which cannot be executed.
12. In Jagmittar Sain Bhagat (Dr.) v. Director, Health Services, Haryana & Ors., III (2013) CPJ 22 (SC) = Civil Appeal No. 5476 OF 2013 dated 11/07/2013,Hon’ble Apex Court observed:

“Indisputably, it is a settled legal proposition that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior Court, and if the Court passes a decree having no jurisdiction over the matter, it would amount to nullity as the matter goes to the roots of the cause. Such an issue can be raised at of the any stage proceedings. The finding of a Court or Tribunal becomes irrelevant and unenforceable/  inexecutable once the forum is found to have no jurisdiction. Similarly, if a Court/Tribunal inherently lacks jurisdiction, acquiescence of party equally should and perpetrate, defeating the legislative animation. The Court cannot derive jurisdiction apart from the Statute. In such eventuality the doctrine of waiver also does not apply. 

13. The objection of the OP that complainant  having taking possession of the  residential unit is not a consumer has substance in view of various judgments but since this forum lacks pecuniary jurisdiction to adjudicate the claim  the  instant complaint be returned to the complainant to be presented before the appropriate forum having jurisdiction . Copy of the  same  be retained  on record. Copy of this order be sent  to the parties as statutorily required. File be consigned to record room.

     Announced on this     ^th   Day  of February 2018.