BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

BENGALURU – 560 027.

DATED THIS THE 27^th DAY OF NOVEMBER 2020

CONSUMER COMPLAINT NO.749/2019

PRESENT:                                                     

Sri.K.S.Bilagi, B.com, M.A., LL.M.….  PRESIDENT

Smt.L.Mamatha, B.A., (Law), LL.B.…   MEMBER

Sri. M.B.Seena, B.A., (Law), LL.B.….  MEMBER

1. Mr.Praveena,

Aged about 55 years,

S/o Prabhakara Kedilaya,

Residing at # 515, 17^th Cross,

2. Represented by its GPA Holder

Mrs.Renu Praveena,

Aged about 49 years,

Residing at, # 515,17^th Cross,

 (Complainants are In-person)

V/s

OPPOSITE PARTY:

The President,

MICO Karmikara Balagada Vasthi

Sahakara Sangha Niyamitha,

# 124, 1^st Floor, Lakkasandra Layout,

Bangalore-560 030.

(OP is Rep. by Adv. Sri.A.C.Nanja Reddy)

= = = = = = = = = = = = =

Author SRI K.S.BILAGI., PRESIDENT

******

//JUDGMENT//

1. The complainant by filing the complaint under Section 12 of the Consumer Protection Act 1986 (herein after referred as an Act) seeks direction against the opposite party to pay Rs.12 lakhs towards losses, mental agony and cost of the litigation.  The complainant files this complaint through her GPA Holder.

2. The case of the complainant in brief is as under;

The complainant being the employee of BOSCH paid Rs.22,00,000/- to the opposite party sangha and booked site measuring 50 x 80 sq.ft.Later on, he had requested the opposite party Sangha to reduce the size of the site to 40 x 60 sq.ft. and refund the balance amount.Accordingly, the opposite party sangha had returned him Rs.5.2 lakhs on 21.07.2018.

3. It is further case of the complainant that he received the amount of refund and addressed a letter to the opposite party sangha that he received amount of refund and retain his seniority not even the size of the site is reduced.  But despite his request site not allotted.  Hence the balance of Rs.16.8 lakhs has been returned to the complainant in 2 instalments in the first week of February 2019.

4. If the complainant had deposited this money as fixed deposit either with the bank or society he could have earn interest.  He has lost more than Rs.10 lakhs by way of interest.  Despite his request, opposite party sangha failed to pay the interest.  There is a deficiency of service.  Hence this complaint.

5. In response to the notice, the opposite party appeared and files statement of objection.  The opposite party is formed to provide sites to the members of the society not with an intention to earn profit.  The complainant voluntarily became member of the opposite party sangha by paying share amount and admission fee.  The complainant made payment of Rs.4,40,000/- on 02.11.2012 for the site measuring 80 x 50 sq.ft as an advance and subsequently the complainant paid Rs.4,40,000/- in 4 instalments.  Thereby, complainant has paid total sum of Rs.22,00,000/-.

6. On 22.01.2018 the complainant had written a letter for refund of amount as he was in need of money to perform the marriage of his daughter.  Subsequently, on 17.07.2018 the complainant had addressed letter requesting opposite party sangha to allot site measuring 40 x 60 instead of 50 x 80 sq.ft.  Accordingly, the difference amount of Rs.5.2 lakhs had been returned to the complainant on 21.07.018.

7. The complainant had decided to discontinue from the project and asked for refund.  Accordingly, balance of Rs.16.8 lakhs refunded to the complainant in the month of February 2019.

8. As per the condition NO.6 of the application, in case of non allotment of the site, the applicant is not entitle to the interest on the advanced money.  The opposite party requests the commission to dismiss the complaint.

9. The complainant has filed affidavit evidence and got marked 19 documents.  Opposite party has filed affidavit evidence of its President and got marked 13 documents.  Heard the argument of both the side.  We perused the records. 

10. The following points arise for our consideration;

1. Whether this Forum had Pecuniary Jurisdiction to entertain the complaint, on the date of complaint?

2.  Whether complainant proves the deficiency of service on the part of the opposite party?

3. Whether complainant is entitled to the amount claimed in this complaint?

4. What order?

11. Our findings on the above points are as under:

POINT NO.1: In the Negative,

POINTS NO.2 & 3: Do not survive for consideration,

POINT NO.4: As per final order for the following;

12. POINT NO.1:     This complaint has been filed to direct the opposite party to pay Rs.12,00,000/- towards loss, mental agony and cost of the litigation stating that the complainant had paid Rs.22,00,000/- towards the site measuring 50 x 80 sq.ft. in 5 equal instalments.  Due to his request as demanded for the size of the site has been reduced to 40 x 60 sq.ft. and difference amount of Rs.5.2 lakhs was returned to him on 21.07.2018.  It is admitted and proved fact that the complainant had sought for refund of balance amount of Rs.16,80,000/- and opposite party had refunded balance amount of Rs.16,80,000/- in the month of February 2019.  The evidence placed before this Commission clearly indicates that the complainant had paid Rs.22,00,000/- towards cost of site measuring 50 x 80 sq.ft. and this complaint is filed claiming Rs.12,00,000/- either towards compensation or towards interest.  The question arise what would be the valuation for the purpose of pecuniary jurisdiction on the date of complaint.  This complaint is came to be filed on 04.05.2019 under the Consumer Protection Act 1986.  Under such circumstances, it is relevant to refer section 11(1) of the Consumer Protection Act 1986.  The above provision reads thus;

13. According to this provision, this Forum had pecuniary jurisdiction up to Rs.20 lakhs on the date of filing the complaint.

14. While ascertaining pecuniary jurisdiction either value of the goods or value of the service and compensation, if any, is tobe taken into consideration.

15. It is relevant to refer decision of the larger bench of Hon’ble National Consumer Disputes Redressal Commission in the decision reported in I (2017) CPJ 1 (NC) in the matter between Ambrish Kumar Shukla & 21 Ors. vs. Ferrous Infrastructure Pvt. Ltd.  Wherein Hon’ble Commission held that;

“(i) Consumer Protection Act, 1986-Section 1291)(c)-Pecuniary Jurisdiction - Determination - Deficiencies pointed out in construction/development of property-It is the value of goods or services, as the case may be, and not the value or cost of removing the deficiency in service which is to be considered for the purpose of determining pecuniary jurisdiction.

(ii) Consumer Protection Act, 1986-Section 12(1)(c)-Pecuniary Jurisdiction-Interest has to be taken into account for the purpose of determining the pecuniary jurisdiction”.

16. In view of the above provisions, it is relevant to refer the documentary evidence produced by both the side which are not in dispute.  Except disputing the claim of the complainant for Rs.12,00,000/- either towards interest or compensation, the rest of the contention of the complainant about payment of Rs.22,00,000/- and repayment of Rs.22,00,000/- in 3 instalments has been admitted.  Even though both the parties filed affidavit evidence in support of their contention.  Their affidavit evidence reiterated the facts stated in the complaint and version.  In support of their contention both the parties have produced documentary evidence.

17. At the first instance, we would like to refer the documentary evidence produced by the complainant.  Ex.P1 is the General Power of Attorney executed in favour of his wife Mrs.Renu Praveena who has filed affidavit evidence in support of the case of the complainant.  Ex.P2 is the copy of application for site and same copy of application for site is also produced by the opposite party under Ex.R1.  Ex.P2 and Ex.R1 indicate that the complainant had applied for allotment of site, measuring 50 x 80 sq.ft. on 30.11.2012.  It is also relevant to refer clause No.6 of this application which reads thus;

• 6. ¤ªÉñÀ£À ºÀAaPÉAiÀiÁUÀzÀ CfðzÁgÀjUÉ AiÀiÁªÀÅzÉà §rØ ¤ÃqÀzÀ DgÀA©üPÀ ªÀÄÄAUÀqÀ ºÀtªÀ£ÀÄß ¤AiÀĪÀiÁ£ÀĸÁgÀ ªÀÄgÀÄ¥ÁªÀw ªÀiÁqÀ¯ÁUÀĪÀÅzÀÄ.
• . CfðzÁgÀgÀÄ ºÀt ¥ÁªÀwPÀæªÀÄPÉÌ vÀ¦àzÀ°è ºÀAaPÉ vÁ£ÁVAiÉÄà gÀzÀÄÝUÉƽîvÀÛzÉ.  CfðzÁgÀgÀÄ ¥ÁªÀw¹zÀ ªÉÆvÀÛªÀ£ÀÄß AiÉÆÃqÀ£ÉAiÀÄÄ ¥ÀÆwð ªÀÄÄVzÀ £ÀAvÀgÀ »AwgÀÄV¸À¯ÁUÀÄvÀÛzÉ.  AiÀiÁªÀÅzÉà PÁgÀtPÀÆÌ AiÉÆÃd£É ªÀÄÄVAiÀÄĪÀ ªÀÄÄ£Àß ºÀt »AwgÀÄV¸À¯ÁUÀĪÀÅ¢®è.  CªÀ¢üUÉ ªÉÆzÀ¯Éà ªÀÄgÀÄ¥ÁªÀw §AiÀĹzÀ°è ±É.5£ÀÄß DqÀ½vÁvÀäPÀ ªÉZÀÑUÀ½UÁV PÀrvÀUÉƽ¸À¯ÁUÀĪÀÅzÀÄ.”  

18. Ex.P3 indicates that Rs.4,40,000/- was supposed to be paid as advance in respect of the site measuring 50 x 80 sq.ft.  Ex.P4 to P9 indicate that the complainant became the member and paid Rs.4,40,000/- on 02.11.2012, Rs.4,40,000/- on 03.09.2013, Rs.4,40,000/- on 09.08.2014, Rs.4,40,000/- on 24.04.2015 and Rs.4,40,000/- on 06.07.2016.  These payments are not in dispute.

19. Ex.P10 is the letter dated 16.08.2013 addressed to all the members of opposite party society requesting the members that cheques/DDs will be received in the opposite party office towards the site.  Ex.P11 indicates that the opposite party society had addressed a letter to its members about enhancement of Rs.150 per sq.ft. and called upon the complainant to pay enhanced amount of Rs.6,00,000/-.  Ex.P12 indicates that on 09.12.2018 the opposite party intimated its members about availability of sites with different dimensions.  Once again, on 16.05.2018 the opposite party society addressed a letter to its members that all sites measuring 30 x 40 and 50 x 80 sq.ft. have been fully sold out.  It is proved from Ex.P14 and Ex.R5 that the complainant made request to the opposite party for reduction of size of the site to 40 x 60 ft., refund the balance amount and maintain his seniority.  It is also admitted and proved that after receipt of this letter, the opposite party refunded Rs.5.20 lakhs difference amount to the complainant as could be seen from Ex.R6 which is admitted by the complainant.  This request has been made by the complainant only after receipt of letter of opposite party dated 19.05.2017. When the opposite party society called upon the complainant to pay the differential amount of Rs.6,00,000/- towards his request for 50 x 80 ft., later on complainant made above request for reduction of size of site to 40 x 60 ft. and refund the difference amount.  Accordingly, the opposite party society refunded Rs.5,20,000/-.  It is also proved from the documentary evidence produced by both the side and as per the request of the complainant and as per Ex.P18 dated 22.01.2018 the opposite party had refunded balance of Rs.16,82,000/- in 2 instalments as could be seen from Ex.R8, R8(a), R9 and R11.  The complainant has also admitted receipt of balance amount of Rs.16,82,000/-.  The other documents which are marked by both the side are not in dispute.  In order to ascertain pecuniary jurisdiction on the date of filing the complaint and as per Section 11(1) of Consumer Protection Act the pecuniary jurisdiction on the date of filing of the complaint is that value of the goods or service and compensation.  According to the complainant, he had paid Rs.22,00,000/- value i.e. cost of site measuring 50 x 80 sq.ft. and he claims Rs.12,00,000/- either as compensation or interest on the date of filing the complaint.  Therefore, in view of Section 11(1) and decision referred above the valuation for the pecuniary jurisdiction shall be Rs.22,00,000/- + Rs.12,00,000/- i.e. Rs.34,00,000/-.  It means on the date of filing this complaint, this Forum had no pecuniary jurisdiction to entertain the complaint.  Therefore, we answer this point against the complainant.

20. POINTS NO.2 & 3:     It is settled proposition of law that when the Forum had no pecuniary jurisdiction on the date of filing the complaint, it has no jurisdiction to decide the complaint on merits.  The point of deficiency of service and entitlement of the complainant touch the merits of the case.  Therefore, these points do not survive for consideration.

21. POINT NO.4:     Having regard to the discussion made in the preceding paragraphs, on the date of filing this complaint this Forum had no Pecuniary Jurisdiction to entertain the complaint.  Moreover, the new Act 2019 has no retrospective effect.  Therefore, complaint requires tobe returned to the complainant for presentation before Hon’ble State Commission, as this complaint was not maintainable before this Forum on the date of complaint.  We proceed to pass the following;

The complaint is dismissed as this Forum had no Pecuniary Jurisdiction on the date of filing the complaint i.e. on 04.05.2019. Return the complaint to the complainant with documents for presentation of complaint before Hon’ble State Commission.

Supply free copy of this order to both the parties.

(Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced by the open Forum on 27^th day of November 2020)                                            

• M.B.SEENA)            (L.MAMATHA)             (K.S.BILAGI)
•  

//ANNEXURE//

Witness examined for the complainants side:

Mrs.Renu Praveena, who being the GPA Holder of the complainant has filed her affidavit.

Documents marked for the complainants side:

1. Ex.P1: Power of Attorney,
2. Ex.P2: Copy of the application submitted by

complainant’s husband to the OP Co-Operative Society dated 30.10.2012,

3. Ex.P3: Copy of the acknowledgement issued by the OP for having received the application for membership and assigning his membership No.1323,
4. Ex.P5 to P9: Copy of the receipts bearing NO.1078 dated 02.11.2012, NO.1689 dated 03.09.2013, No.3045 dated 09.08.2014, No.3474 dated 24.04.2015 and No.4704 dated 06.07.2016 each for Rs.4,40,000/,
5. Ex.P10 to P13: Copy of the letter dated 16.08.2013 by the OP to all the members which are in different dates in 4 Nos.,
6. Ex.P14: Copy of the letter dated 17.07.2018 written by complainant to the OP,
7. Ex.P15 to P17: Letter dated 01.08.2018, 29.09.2018 and 12.11.2018 from the OP,
8. Ex.P18 and P19: Copy of the letter dated 22.01.2018, (which should have been 22.01.2019) and 07.03.2019 written by complainant to the OP.    

Witness examined for the opposite party side:                        

Mr.B.S.Sheshachalam, President of opposite party sangha, had filed his affidavit.                  

Documents marked for the opposite party side:

1. Ex.R1: Copy of the Application for Membership,
2. Ex.R2: Copy of the Application for Purchase of Site,
3. Ex.R3: Copy of the Order dated 07.09.2018,
4. Ex.R4: Copy of the Seniority List of measuring 50 x 80 sq.ft.,
5. Ex.R5: Copy of the letter dated 17.07.2018,
6. Ex.R6: Copy of the Bank Payment Voucher,
7. Ex.R6(a): Copy of the cheque dated 17.07.2018,
8. Ex.R7: Copy of the letter dated 22.01.2018,
9. Ex.R8: Copy of the cheque dated 28.01.2019,

10. Ex.R8(a): Copy of the Bank Payment Voucher,

11. Ex.R9: Copy of the letter dated 05.02.2019,

12. Ex.R10: Copy of the Bank Payment Voucher,

13. Ex.R11: Copy of the cheque dated 05.02.2019,

14.Ex.R12: Copy of the Resolution dated 23.09.2018,

15.Ex.R13: Copy of the letter dated 30.08.2018.

  (M.B.SEENA)               (L.MAMATHA)                  (K.S.BILAGI)