BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 22^ND DAY OF SEPTEMBER 2022

             ORDER

SRI.K.S.BILAGI, PRESIDENT

1.         This joint complaint has been filed by the husband and wife under section 12 of C.P.Act 1986 (herein after referred as “Act”)  against the OPs for the following reliefs.

1. Direct the OP to refund the amount of R.3,00,000/- as per the order dated 10.12.2019 along with interest @ 18% p.a., from the date of agreed completion period 20^th May, 2018 (excluding the amount of Rs.1,50,000/- retained by the complainant which was due only at the time of completion of construction/renovation work)
2. Direct the OP to pay the complainants Rs.3,00,000/- towards loss of rent income earning from June 2018 onwards as per order dated 10.12.2019
3. Direct the OP to pay the complainants Rs.50,000/- towards deficiency in service
4. Direct the OP to pay compensation of Rs.1,00,000/- towards shock, mental pressure, agony and physical suffering and loss of time due to the deficiency of service on the part of the OP.

2. The case of the complaint in brief is as follows:

The complainant having paid Rs.31,00,000/- to the OP entrusted the work of construction of first floor and modification in the ground floor.  The proposed construction work is mentioned in the complaint.  The complainant seek construction against the OP to pay Rs.7,50,000/-.

3. After receipt of notice OP appears and files version.  This complaint has been filed by suppressing the facts.  There is no delay on the part of the OP.  The OP admits receipt of Rs.31,00,000/- for completion of construction work within five months + grace period of one month.  The construction work was commenced on 20^th November 2017.  The OP admits the construction work entrusted to him. The OP has completed the construction which has been reviewed or changed many times by the complainant.  The complainants have unnecessarily dragged OP before this forum.  This complaint is filed to extract money from the OP.  The OP requests to dismiss the complaint.
4. The complainant filed affidavit evidence of complainant No.1 and relied on 10 documents. OP has filed affidavit evidence and relied on 03 documents. Heard the arguments and perused the records.
5. The points that would arise for our consideration are as under:-

1. Whether the then district forum had pecuniary jurisdiction on the date of filing of this complaint i.e., on 13.08.2019?
2. Whether the complainant proves deficiency of service on the part of the OP?
3. Whether the complainant is entitled to reliefs mentioned in the complaint?
4. What  order?

6. Our answer to the above points are as under:

 Point No.1        :- Negative

Point No.2 & 3 :- Do not survive for consideration

     Point No.3        :- As per the final order.

                                REASONS

7. Point No.1: It is admitted by both the parties in the complaint, version and their affidavit evidence that complainant had entrusted the work of construction of first floor and renovation of ground floor for a cost of Rs.31,00,000/-.  Ex.P1 construction agreement dated 17.11.2017 is not in dispute.  The total value of service of construction was Rs.31,00,000/-.  This complaint came to be filed u/s 12 of the Consumer Protection Act 1986 on 13.08.2019.
8. At this stage it is relevant refer section (11)(1) of Consumer Protection Act 1986

Sec 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 do not exceed Rs.20,00,000/-.

According to the above provision, the then District Forum had pecuniary jurisdiction up to Rs.20,00,000/- based on the value of service/goods and claim amount.As admitted by the complainant, the agreed value of the service was Rs.31,00,000/- and claim amount is Rs.7,50,000/-.These two components require to be taken into consideration for the purpose of pecuniary jurisdiction to ascertain whether district forum had pecuniary jurisdiction on the date of filing of this complaint.The value of service and amount claimed are taken into consideration the total value would be Rs.38,50,000/-.Under such circumstances on the date of filing the complaint, this forum the then district forum had no pecuniary jurisdiction to entertain the complaint.

9. Time and again the Hon’ble National Commission categorically ruled that for the purpose of pecuniary jurisdiction under the provisions of consumer protection act 1986 value of the goods/service and claim amount shall have to be taken into consideration.  It is relevant to refer the following decisions of Hon’ble National commission;

1. 2022(1) CPR 363 (NC) decision of National Commission, Apoorv Bansal –vs- Vatika Ltd., in CC No.1119/2018 decided on 28.01.2022, wherein the Hon’ble National Commission categorically ruled a under

Purpose of pecuniary jurisdiction – purpose of pecuniary jurisdiction, the value of service hired or availed plus compensation shall be the value for the purpose of pecuniary jurisdiction.

2. 2022(3) CPR 137 (NC)  National Commission order in First appeal No.1114/2019 decided on 30.12.2021 between Bimla Vati –vs- Improvement Trust

10. In view of section 11(1) of Consumer Protection Act 1986 and above two decisions the District Forum had no pecuniary jurisdiction to entertain this complaint on the date of filing this complaint.
11. The question arises can this complaint be continued in view of the enactment of Consumer Protection Act 2019 which had come into force with effect from 20.07.2019.
12. The Consumer Protection Act 2019 has no retrospective effect and present complaint cannot be continued under the new act.  This reasoning of us is supported by the Hon’ble Supreme Court of India, reported in

 2021(2) CPR 398 (SC)Supreme court of India in civil Appeal No.3766-3767/2020 dated 16.03.2021 between Neena Aneja and another –vs- Jai Prakash Associates…. Proceedings instituted before commencement of act of 2019 on 20 July 2020 would continue before For a corresponding to those under Act of 1986 and not be transferred in terms of pecuniary jurisdiction set for Fora established under Act of 2019 – Mere use of word entertain in defining jurisdiction is not sufficient to counteract overwhelming legislative intention to ensure consumer welfare and deliberately not provide for a provision for transfer of pending proceedings in Act of 2019 or under section 106 of Act of 2019 which is a power to remove difficulties for a period of two years after commencement of Act of 2019 – Legislature cannot be attributed to be remiss in not explicitly providing for transfer of pending cases according to new pecuniary limits set up for Fora established by new law, were that to be its intention – omission, when contextualized against statutory scheme, portends a contrary intention to protect pending proceedings through section 107(2) of Act of 2019.

It is relevant to refer para 71 of Hon’ble Supreme court of India which reads thus;

For the above reasons, we have come to the conclusion that proceedings instituted before the commencement of the Act of 2019 on 20 July 2020 would continue before the for a corresponding to those under the Act of 1986 (the National Commission, State Commissions and District Commissions) and not be transferred in terms of the pecuniary jurisdiction set for the for a established under the Act of 2019.While allowing the appeals, we issue the following directions;

1. The impugned judgement and order of the NCDRC dated 30 July 2020 and the review order dated 5 October 2020, directing a previously instituted consumer case under the act of 1986 to be filed before the appropriate forum in terms of the pecuniary limits set under the act of 2019, shall stand set aside;
2. As a consequence of (i) above, the National Commission shall continue hearing the consumer case instituted by the appellants;
3. All proceedings instituted before 20 July 2020 under the Act of 1986 shall continue to be heard by the for a corresponding to those designated under the Act of 1986 as explained above and not be transferred in terms o the new pecuniary limits established under the Act of 2019; and
4. The respondent shall bear the costs of the appellant quantified at Rupees Two lakhs which shall be payable within four weeks.

13. When new Act has no retrospective effect, the present complaint cannot be continued under the new act.  Even though the pecuniary jurisdiction of district commission is enhanced upto rupees one crore with effect from 20.07.2020.
14. The present complaint cannot be continued under the new act.
15. POINT NO.2 & 3: It is settled preposition of law that the authority cannot decide the merits of the case when it has no pecuniary jurisdiction.  In view of our findings on Point No.1 these two points are touch the merits of the case do not survive for consideration.
16. POINT NO.4: In view of the discussion referred above the complaint requires to be returned to the complainant for presentation before the Hon’ble State Commission which had pecuniary jurisdiction in the year 2019. In the result, we proceed to pass the following;

O R D E R

Return the complaint to the complainant with documents for presentation of the same before the Hon’ble state commission for want of pecuniary jurisdiction on the date of filing of this complaint before this District Forum.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 22^ND day of September, 2022)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1 :

HAV*