West Bengal

Siliguri

CC/16/70

SRI SUJEET KUMAR - Complainant(s)

Versus

THE BRANCH MANAGER - Opp.Party(s)

NIHAR RANJAN CHAKI

23 Jul 2019

ORDER

The fact of the case of the complainant is that complainant entered into an agreement on 16.03.2015 with Arati construction and developer, represented by Sri Arindam Ghosh, OP No.3 and one Sri Biplab  Mondal as vendor who is also represented by said OP No.3, Sri Arindam Ghosh by virtue of a power of attorney executed on 25.02.2015.

This agreement was related with purchase and sale of a residential flat measuring about 820 sq.ft being flat No. C-3 on 3^rd floor as well as with one open car parking space measuring about 125 sq.ft at G-3 of Block No. A.

The total value/price of the said flat was fixed at Rupees Twenty three lakhs and fifty thousand one (Rs. 23,50,001/-) and value of said car parking space was fixed at Rupees one lakh twenty five thousand(Rs. 1,25,000/-) totaling a value at Rupees twenty four lakh and seventy five thousand one only (Rs. 24,75,001/-).

The complainant had already paid the builder/developer/vendor Rupees Four Lakhs (Rs. 4,00,000/-) by cheques on the day of signing of the Agreement as Booking money.

It was agreed further that rest amount of Rs. 20,75,001/- was to be paid in seven(7) equal bimonthly installments each of Rs. 2,70,000/- by the complainant, the first of which began on 01.05.2015.

It is further the complainant’s case that after payment of such 1^st installment, the complainant paid Rs. 3,00,000/- by cheque to developer/Builder/Vendor being cheque no. 861610 of SBI as part payment and subsequent to that complainant entered a tripartite agreement with Axis Bank, Siliguri RAC Branch, Sevoke Road Siliguri and Axis Bank Ltd., Ahmadabad 380006 respectively OP No. 1 & 2 and the Vendor/Builder/Developer who is OP No.3.

Under such agreement the Bank-OP Nos. 1 & 2 sanctioned Rs. 16,35,259/- @ of interest of 9.95% in a floting system and EMI was fixed at Rs. 15,726/- for 240 months.

Then on 16.06.2015 the OP Nos. 1 & 2 disbursed in favour of the Developer of OP No.3 a sum of Rs. 7,13,750/- and on 06.08.2015 again disbursed Rs. 3,00,000/- and next on 05.10.2015 Rs. 2,20,648/- and then on 30.12.2015 Rs. 1,47,500/- and thus within a period of seven months 16.06.2015 to 30.12.2015 the OP Nos. 1 & 2 disbursed in favour of OP No. 3 a total sum of Rs. 13,81,798/-.

It is further contained in the petition of complaint that Bipartite Agreement postulated that the installment would be bimonthly and the EMI was of Rs. 2,70,000/-.  The Bank OP No. 1 & OP No.2 entered into the Tripartite Agreement knowing fully well & perusing the Bipartite Agreement between the complainant and the OP No.3.  It is alleged that OP No.3 also violated the Bipartite Agreement in collusion with Bank-OP Nos. 1 & 2 and it is stated in the petition of complaint a clear case of fraud against complainant by all the OPs of this case.  Complainant sent legal notice to the OPs and OP No.3 through his lawyer responded to that legal notice on 28.04.2016 and cancelled the Bipartite Agreement and promised to refund the advance money after deducting 10% which has not been refunded till the filing of this case and this matter was intimated to OP Nos. 1 & 2 also but these two OPs on 05.05.2016 denied all issues raised in the legal notice of the complainant.

 

It is further alleged by complainant that OP Nos. 1 & 2 were legally bound to invoke and execute clause 12 of the Tripartite Agreement but those two OPs did not do that & these two OPs (OP Nos. 1 & 2) was charging EMI on the complainant by which complainant suffered huge monetary loss.  It is complained that OPs are grossly negligent and deficient in their service and have thus caused loss, damages in monetary terms and harassment to the complainant, hence this case for giving direction upon OP Nos. 1 & 2 for payment of Rs. 2,00,000/- to the complainant for financial damage, loss etc. and also for direction upon OP No.3 to refund the total advance money amounting Rs. 4,00,000/- and Rs. 3,00,000/- deposited as part payment along with 12% interest on such total amount of Rs. 7,00,000/- and another sum of Rs. 1,00,000/- for harassment to the complainant as well as a sum of Rs. 20,000/- against cost of litigation.

The OP Nos. 1 & 2 have contested this case by filing written version while OP No.3, Arindam Ghosh has filed a separate written version.  In both the written versions the OPs contended that this present application and the case itself is not maintainable in law.  In the written versions almost all the allegations of the petition of complaint have been denied.  The OP Nos. 1 & 2 have stated therein that they are well aware of the clauses of Tripartite Agreement and specifically the Clause No. 12 enumerated therein and it was expected from complainant that he would also appreciate that ECS mandate which cannot be cancelled technically until the loan is closed and denied the matter of charging of EMI from the complainant. 

On the other hand the OP No. 3 in written version stated that he has refunded the total payment of Rs. 13,81,798/- to the OP Nos. 1 & 2 Bank by cheque Nos. 1) 006878 dtd. 24.10.2016 amounting Rs. 3,00,000/- and 2) 006889 dtd. 11.11.2016 amounting to Rs. 10,81,798/- both drawn on the bank namely Bank of India, Tinbatti Branch at Siliguri and the OP Nos. 1 & 2 have also acknowledged the receipt of said refund and that matter has also been informed to the complainant by OP Nos. 1 & 2.  It is further stated in the written version of OP No.3 that there is no cause of action in respect of deficiency in service as alleged and there exists no material to substantiate  that OP No.3 has violated any terms and condition of said agreement dtd. 16.03.2015 as well as Tripartite Agreement as alleged.  

In this case complainant filed his examination-in-chief in writing along with an affidavit on 30.01.2017 as PW-1 and filed some documents which are marked as Exhibit-1 to Exhibit-8.  On behalf of complainant another examination-in-chief along with an affidavit  has been filed by Smt. Kumkum Kumari, W/O- Sri Sujeet Kumar on 15.03.2017 as PW-2.  On the other hand evidence on affidavit on behalf of OP Nos. 1 & 2, Axis Bank Ltd. has been filed by one Suvojit Moulick and thereafter affidavit-in-chief of the OP No.3 has been filed by OP No.3 himself, Arindam Ghosh.  It is to be noted here that written notes on argument prior to hearing of argument has been filed by the complainant and in the same manner the OP Nos. 1 & 2 as well as OP No.3 filed their written notes on argument separately before this Forum. 

Under the facts and circumstances of the case on the basis of materials on case record the following issues are framed for consideration:-

1. Is the case maintainable in its present form and nature as per provisions of C.P. Act. 1986?
2. Is the complainant a consumer under the purview of the C.P. Act. 1986?
3. Has there been any deficiency in service upon the complainant from the part of the OPs of this case?
4. Is the complainant entitled to get the relief/reliefs as prayed for?

DECISION WITH REASONS.

ISSUE NOS. 1 & 2.

These two issues are taken up together for consideration at first for the sake of proper justice.

Admittedly, this instant case is oriented with an agreement dtd. 16.03.2015 which was entered by the complainant on one hand and builder/developer/vendor, of Arati Construction represented by Arindam Ghosh, OP No.3 on the other hand which agreement is related with the purchase and sale of a residential flat measuring about 820 Sq.ft being flat No. C-3 situated at 3^rd floor and one open car parking space measuring about125 Sq.ft at G-3, the parking space area of Block No. A.  The total value/price of the said flat was fixed at Rs. 23,50,001/- and in addition to that the value of said car parking space was fixed at Rs. 1,25,000/- and thus total value of the flat and parking area is Rs. 24,75,001/- (Rupees twenty four lakhs seventy five thousand and one). In this context we have perused the deed of agreement from its pages 1 to 15.  We have particularly gone through the clause of agreement over the valuation of flat and open parking space as it is mentioned in the page 5 of the agreement, on the basis of which the petition of complaint has been filed by the complainant as per section 12 of the C.P. Act. 1986 while this section 12(1)(a) runs as follows:-

1. “A complaint in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided may be filed with a District Forum by-

 

1. The consumer to whom such goods are sold or delivered or agreed to be sold or delivered or such service provided or agreed to be provided;…………”

Here in this case considering its nature it appears that the complainant comes within the purview of ‘consumer’ as per definition of the term embodied in C.P. Act. 1986 but the question of pecuniary jurisdiction of this District Consumer Forum is very much vital to be considered right now as the agreement in question as mentioned above in relation to the subject matter of this case exceeds Rupees Twenty Lakhs and in this context it is pertinent to mention section 11(1) of C.P. Act. 1986 which runs as follows:-“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””.  The complainant in this case has prayed for payment of Rs. 2,00,000/- for financial damage, mental agony and loss etc. to him by giving a direction upon the OP Nos. 1 & 2 and also for payment of Rs. 4,00,000/- and another Rs. 3,00,000/- totaling Rs. 7,00,000/- along with 12% interest thereon and another sum of Rs. 1,00,000/- has been claimed from OP No.3 for mental agony, harassment etc. and thereafter for litigation cost a sum of Rs. 20,000/- has also been prayed in favour of the complainant.  The entire case and the matter of taking loan by the complainant as described in the petition of complaint is for the purchase of the flat and the parking space at the ground floor of the flat the total consideration price of which is Rs. 24,75,001/- as mentioned in the Deed of Agreement dtd. 16.03.2015.  It is to be borne in mind that District Forum is empowered to entertain complainants where the value of the goods or services and the compensation, if any, claimed does not exceed rupees twenty lakh and this pecuniary jurisdiction is nothing but the monetary jurisdiction.  We are aware that in Consumer Disputes, in order to evaluate the value, the amount claimed as compensation is required to be added to the value of goods or services.  In this context it is important to mention here that in a case in between Ambrish Kumar Shukla & Ors Vs Ferrous Infrastructure Pvt. Ltd. decided on 07.10.2016 reported in 1 (2017) CJP 1 (NC) where Hon’ble National Consumer Disputes Redressal Commission, New Delhi has been pleased to hold that pecuniary jurisdiction should be construed keeping in view the total value and goods and services in addition to the compensation prayed for and the value of services means the sale consideration agreed to be paid by the flat buyer to the builder.  Here in this case the agreement mentioned value of the flat orienting which the loan transaction has been initiated exceeds the pecuniary jurisdiction of the District Forum while the said value of the flat as well as the value of car parking space has been admittedly mentioned as Rs. 24,75,001/- and with this value of ‘goods’/subject the​

compensation as prayed for in this case which is more than Rs.10,00,000/- should be added to evaluate that pecuniary jurisdiction.  It is settled principle of law that pecuniary jurisdiction linked to value of goods or services, and not to cost/value of deficiency in goods or services alone.  In other wards in order to evaluate the value, the amount claimed as compensation will be added to the value of the goods or services.  In this case not only the petition of complaint averred the value of the flat and parking space itself which is Rs. 24,75,001/- which has its root at Deed of agreement dtd. 16.03.2015 but also it is fact that sale consideration promptly started for payment to comply the said averment.  Both these issues are thus disposed of.  So it is palpably clear that this case is barred in section 11(1) of the C.P. Act 1986 as the case was exceeded the pecuniary limit of jurisdiction of this District Forum and accordingly, not maintainable here in this D.C.D.R.F., Siliguri, Darjeeling.

ISSUE NOS. 3 & 4.

In view of forgoing discussion and consideration over this case particularly on issue no. 1 while it is held that this District Forum has no pecuniary jurisdiction to adjudicate the dispute where the value of the goods or services has exceeded the limit of Rupees Twenty Lakhs (Rs. 20,00,000/-) as per section 11(1) of the C.P. Act. 1986, then the discussion for consideration over these two issues thus is redundant.  The instant case as a result, is not maintainable in this District Forum and accordingly disposed of.

Proper fees paid.

Hence, it is,

O R D E R E D,

that the instant Consumer Case being No. 70-S-2016 be and the same is not maintainable on pecuniary jurisdiction and accordingly disposed of.  No order as to cost.

          Let a copy of this judgment/final order of this case be handed over to the parties free of cost at once.