Complainants through Adv. Ajit Kulkarni,
Adv.Katariya, Adv. Patil & Adv. More present
Opponents through Adv. Gujrathi
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Per : Mr. V. P. Utpat, President Place : PUNE
COMMON ORDER BELOW EX-1 AND INTERIM APPLICATION OF OPPONENT
(23/08/2013)
1] All these complaints are filed by the flat owners, who had purchased flats from the opponent for deficiency in services as well as for possession of the disputed flats. The opponents in all the complaints are one and the same. Reliefs of the claim by the complainants are similar. The opponent has raised preliminary issue as regards pecuniary jurisdiction of this Forum in all the proceedings. As the subject matter as well as opponent in all the proceedings are one and the same, it is convenient to dispose of all the proceedings by the common order.
2] It is common contention of all the complainants that the opponent agreed to sell the flats to them from project, which is standing at Survey No. 123/1, 123/2, 123/3/1, 123/3/2, 123/4/2, which is situated at village Sus within the limits of Pune District Council. All the complainants have obtained loan for purchasing flats and paying installments. It is not in much dispute that the opponents have received major amount of consideration from the complainants. According to the complainants, the opponent agreed to deliver the possession of the suit flat on or before 30/7/2010, but there is delay of two years in delivery of possession. The opponents have collected service taxes from the complainants without any right. The complainants are sustaining losses due to delay in delivery of possession, as they are paying huge interest on housing loan as well as rent for rented premises. It is also contended that the opponent has not provided the facilities and amenities, which are shown in the brochure. All the complainants have asked delivery of the possession of the flats, as well as compensation for delay in possession as well as for mental and physical sufferings and cost of the litigation.
3] The opponents appeared before the Forum and resisted the complaints by filing written statement. They have denied the contents of complaints in toto. It is flatly denied that they have caused deficiency in service. The opponent has further contended that it has required to collect various NOCs from Government Authorities. As per Rules and Regulations and due to these unavoidable circumstances, the project was prolonged. According to the opponents, it will be completed in May 2013. The main contention of the opponent is that the complainants have sought possession of the flats as well as compensation for deficiency in service and on other grounds. The value of each flat is more than 20 lacs and this Forum has no jurisdiction to entertain, try and decide the complaints. The opponent has prayed for returning of the complaints to the complainant for presenting the same before proper Forum.
4] The opponents have also filed separate interim application for framing preliminary issues, as regards jurisdiction of the Forum, which is resisted by the complainants and the complainants have prayed for dismissal of the interim application.
5] After scrutinizing the documentary evidence, which is produced before this Forum, hearing the legal submissions of both the counsels and considering pleadings, the following points arise for my determination. The points, findings and the reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1. | Whether this Forum has pecuniary jurisdiction to entertain, try and decide the present complaints? | In the negative |
2. | What order? | All the complaints are returned to the complainants for presenting it before the proper Forum. |
REASONS :-
6] Admittedly, in all the proceedings, the complainants have asked possession of the disputed flats. It is not in much dispute that the price of each flat is more than 20 lacs. It is also not in much dispute that the complainants have asked compensation for deficiency in service for mental and physical sufferings and cost of the litigation besides possession of the flats.
7] The learned Advocate for the opponent argued before me, as the value of service i.e. possession plus compensation is more than 20 lacs, this Forum has no jurisdiction to entertain the present complaints in view of section 11 of the Consumer Protection Act, 1986, which is laid down as follows,
SECTION 11 “JURISDICTION OF THE DISTRICT FORUM —
(1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed does not exceed rupees TWENTY LAKHS.
(2) A complaint shall be instituted in a District Forum
within the local limits of whose jurisdiction,—
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain, or
(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry on business or have a branch office, or personally work for gain, as the case may be, acquiesce in such institution; or
(c) the cause of action, wholly or in part,arises.
8] The learned Advocate for the complainants argued before me that while considering pecuniary jurisdiction, the value of deficiency in services should be considered and it is not necessary to consider the value of disputed property. He has placed reliance upon Ruling of “Switzer Instrument Ltd. V/S Adwave Advertising (P) Ltd.” reported in (1995) 2 CPR 590, (1995) 2 CPJ 251. It has been observed by Tamilnadu State Commission in the said Ruling that the value of deficiency in service as well as compensation is to be considered for the purpose of pecuniary jurisdiction. It reveals from the facts of the said Ruling that the complainants have asked rectification and repairing in the flats as well as compensation and the total value of the compensation and services was Rs. 12, 87,000/-. In that context, Hon’ble Commission has observed that the District forum has jurisdiction to entertain the said dispute.
9] The second Ruling on which learned Advocate of the complainant has placed reliance is between “Maria Phitomina Pereira V/S Rodrigues Constructions”, which is reported in 1990(2) Bom C. R. 77. That Ruling is with respect to the possession of the flat, which is situated in Mumbai and the plaintiff has filed Short Cause Suit before Bombay City Civil Court for specific performance of the agreement and also sought decree for possession. Initially plaint was returned by the Learned City Civil Judge for presenting the same before proper Forum, as the valuation of the flat was Rs. 87,000/-, i.e. more than Rs. 50,000/-. In that ruling, it has been observed that the suit was properly valued and the City Civil Court has jurisdiction to entertain the said dispute. In the said Ruling reliance is also placed upon judgment between “Vrindavan Co-operative Society Ltd. V/S Karmarkar Bros.” reported in 1982 Mh.L.J 607. As per the facts of the said Ruling, the plaintiff in that proceeding has asked relief of mandatory injunction, directing the builder to execute the conveyance deed and in that context it has been observed that City Civil Court has jurisdiction, even though consideration amount was more than Rs. 2 lacs. It has been observed in that Ruling that suit was filed for seeking enforcement of the obligation of the defendants and hence City Civil Court has jurisdiction to try and entertain the dispute.
10] It is significant to note that, both these proceedings were filed before Civil Court for mandatory injunction and for possession and it has been observed that as the plaintiff has sought relief of mandatory injunction seeking enforcement of the obligation of the defendants under Maharashtra Ownership Flat Act and it has been held that the City Civil Court has jurisdiction to entertain the said proceeding. But in the present proceeding, the complainants have filed complaints under section 12 of the Consumer Protection Act, 1986 for seeking possession of the flat as well as for compensation.
11] The learned Advocate for the opponent placed reliance upon Ruling of “M/S Okay Transport Corporation V/S M.O.H. Automobiles Ltd. & Ors.” Reported in I (1993) CPJ 5 (NC). In that proceeding, it has been observed that the valuation put by the complainant is excessive and arbitrary and that has probably been so done only with a view to bring the matter within the jurisdiction of the Commission. Hence, the complaint was returned to the complainant.
12] Another Ruling on which the learned Advocate for the opponent has placed reliance upon is in between “M/S Quality Foils India Pvt. Ltd. V/S Bank of Maharashtra Ltd. & Anr” reported in (1998) NCJ (NC). In that proceeding it has been observed that the jurisdiction is based upon the quantum of reliefs put together i.e. aggregate of value of goods and compensation or aggregate of value of service and compensation or an aggregate of value of goods and services and compensation. According to the learned Advocate for the complainant, under the Consumer Protection Act, 1986 the definition of ‘goods’ not given and hence as per provisions of Sale of Goods Act, the definition of ‘goods’ should be considered and that ‘goods’ is as regards movable property. In the present proceeding, the complainants have asked possession of immovable property. At the most, non delivery of possession can be termed as “deficiency in service”. If the deficiency in service as regards the possession, then valuation of said service is depending upon the market rate of the property.
13] As regards the pecuniary jurisdiction reliance can be placed upon the Judgment of the Hon’ble State Consumer Disputes Redressal Commission, Maharashtra reported in 2004(1) Bom. C.R. 551 between Krishna D. Singh vs. Pavan T. Punjabi & Ors. In that proceeding it has been observed that-
“The jurisdiction of Forum has to be determined on the basis of value of the subject matter of dispute and not by the result of the decree or award. For the purpose of valuation of dispute, reliefs claimed have to be considered in the context of averment in the complaint.”
In that proceeding the value of the flat was Rs.7,00,000/- and it was directed that the complaint should be instituted in the Court of lowest grade competent to try.
14] As regards the point of pecuniary jurisdiction the reliance can be also placed upon the Judgment of the Hon’ble State Consumer Disputes Redressal Commission, Maharashtra in complaint No. 08/159 between Mr. Jayesh G. Shah v/s. M/s. Anamika Real Estate Pvt. Ltd. Co. decided on 6/1/2012. That complaint was also relating to the deficiency in service on the part of the developer and builder for not handing over possession of the flat agreed to be purchased by the complainant. The complainant had valued that flat for Rs.1 Crore and asked further compensation of Rs. 5 lakh for mental agony and torture and also asked compensation @ Rs.25,000/- per month for delayed possession from the date of filing of complaint till possession is received. In that complaint it has been observed that the valuation of the flat as well as compensation and deficiency of service is more than one crore then the State Commission has no jurisdiction to entertain the said complaint and the complaint was returned to the complainant for presenting the same before the Hon’ble National Consumer Disputes Redressal Commission.
15] In the same context reliance can be placed upon the ruling of Hon’ble National Consumer Disputes Redressal Commission in case of Kishori Lal Bablani v/s. Aditya Enterprises & Ors. reported in (2012) CPJ 682 (NC). In that ruling it has been observed that the valuation of the flat which has been shown by the complainant is Rs.40,70,000/- hence the Hon’ble National Consumer Disputes Redressal Commission has no jurisdiction to entertain the said complaint and it should be presented before the State Commission and that complaint was returned to the complainant for presenting the same before the proper Forum.
16] Jurisdiction of the forum is restricted as per the valuation. The valuation is having two aspects. One is for pecuniary jurisdiction and another is for the purpose of court fee. In certain disputes, valuation for the purpose of pecuniary jurisdiction and court fee is the same. The present disputes are relating with deficiency in service. If non delivery of possession of flat is considered as deficiency in service, then the valuation of the subject matter should be the market price or agreed price of the flat. The Consumer Protection Act, 1986 provides different court fee for adjudicating the disputes between consumer and the service providers. In Civil disputes, the valuation of the property for the purpose of jurisdiction may be differs from the valuation for the purpose of court fee. Such is not the case in the consumer dispute. Moreover, if for any technical reason delivery of possession of flat become impossible, complainants are entitled for compensation which is equivalent to price of the flat. In such circumstances, this Forum held that the valuation of the dispute includes the agreed price of the flat + valuation of deficiency in service. Admittedly, the value of the property is more than 20 lacs. Hence, this Forum held that the complainants have knocked wrong door. They have to approach Hon’ble State Commission for the relief, which they have sought. In the light of above discussion, as the value of service, as regards delivery of possession is more than 20 lacs, this Forum has no jurisdiction in view of section 11 of Consumer Protection Act, 1986. This Forum answers points accordingly and pass the following order.
** ORDER**
1. Interim application of the opponent is allowed.
2. All the complaints are returned to the complainants
for presenting the same before Hon’ble State
Commission within 6 weeks from the date of order.
3. In the peculiar circumstances, there is no order
as to the cost.
4. Original judgment be kept in case No. PDF/322/12
and the copies be kept in rest of the proceedings.
