Smt. Ashoka Shome v. Sri Asish Das

Date of Filing 02.07.2015 Date of Final Hearing 12.05.2017 The instant complaint under Section 17(wrongly mentioned under Section 12) of the Consumer Protection Act, 1986 (hereinafter referred to as the Act) is at the instance of landowners against the developer on the allegation of deficiency in services on the part of him in respect of providing the allocation of complainants in the schedule property lying and situated within Municipal Holding no. 6/1, M.M. Feeder Road, P.S.- Belgharia, Kolkata 700057, Dist- North 24 Parganas within the local limit of Kamarhati Municipality. In a nutshell, Complainants case is that on 04.03.2009 they entered into an Agreement with the opposite party for raising a multi-storied building in an area measuring about 3 cottahs 5 chittaks 28 sq. ft. out of 6 cottahs 37 sq. ft. i.e. excluding an area of 2 cottahs 5 chittaks and 9 sw. Ft. The complainants have also executed a Registered Power of Attorney authorising the OP to construct the said building. In the agreement, it was stipulated that the land owners shall be collectively entitled to receive 40% of the total super built up area and it was agreed that the developer will complete the construction within two years from the formal sanction of the proposed building plan by the Municipality. The complainants alleged that the Kamarhati Municipality sanctioned the building plan on 17.03.2011 but the OP has failed to complete the construction within the stipulated period. In this regard, all the persuasions including legal notices went in vain. Hence, the complainants have approached this Commission with prayer for certain reliefs, viz. (a) to direct the OP to allocate the owners allocation of 40% of super built up area alternatively to pay Rs.85,19,875/- with bank interest for non-compliance of commitment; (b) to pay Rs.3,59,500/- for rent which the petitioner no.2 paid to his tenants; (c) to pay Rs.10,00,000/- as compensation and (d) litigation cost etc. The opposite party could not file the written version within 45 days. Accordingly, in view of the decision of the Three-Judge Bench of the Honble Apex Court reported in 2016 (1) Supreme 319 (New India Assurance Co. Ltd. vs.- Hilli Multipurpose Cold Storage Pvt. Ltd.) the complaint was taken up for hearing in absence of written version. However, the opposite party was given an opportunity to participate in the final hearing of the case to argue on the point of law. On behalf of complainants, evidence on affidavit has been filed by the complainant no.2 Sri Subir Shome for himself and on behalf of complainant no.1. Both the parties have relied upon some documents and at the time of final hearing, the parties have filed their respective brief notes of arguments (BNA). I have considered the submission advanced by the Ld. Advocates appearing for the parties and also scrutinised the materials on record. The materials on record indicate that on 04.03.2009 the complainants entered into an Agreement with the opposite party for raising a multi-storied building in an area measuring about 3 cottahs 5 chittaks 28 sq. ft. out of 6 cottahs 37 sq. ft. i.e. excluding an area of 2 cottahs 5 chittaks and 9 sq. ft. The complainants have also executed a Registered Power of Attorney authorising the OP to construct the said building. In the agreement, it was stipulated that the land owners shall be collectively entitled to receive 40% of the total super built up area and it was agreed that the developer will complete the construction within two years from the formal sanctioned of the proposed building plan by the Municipality. The fact remains that the Kamarhati Municipality sanctioned the building plan on 17.03.2011 but the OP has failed to complete the construction within the stipulated period of two years. Mr. Alok Mukhopadhyay, Ld. Advocate for the OP has submitted that the instant complaint must fail on the point of jurisdiction because the complainants in Paragraph-10 of the petition of complaint have mentioned the value of owners allocation of Rs.1,04,19,875/- for 3361.25 sq. ft. for super built up area plus Rs.5,00,000/- for e-type top floor flat equal to Rs.1,09,19,875/- and as such this Commission has no pecuniary jurisdiction to entertain the complaint. He has also submitted that if the compensation of Rs.10,00,000/- added together, the value of the complaint would be Rs.1,19,19,875/- and on this ground alone, the complaint should be dismissed. To fortify his contention on the point of pecuniary jurisdiction, Ld. Advocate for the OP placed reliance to several decisions (1) I (2017) CPJ 1 (NC) (Ambrish Kumar Shukla & 21 Ors. vs. Ferrous Infrastructure Pvt. Ltd.), (2) the decision of Honble National Commission dated 12.03.2012 in RP/2679/2011 (P.S. Srijan Enclave & Ors. vs. Sanjay Dewan) and (3) a decision of the Honble Supreme Court reported in (2005) 7 SCC 791 (Harshad Chiman Lal Modi vs. D.L.F. Universal Ltd. & Anr.) and also (4) a decision of this Commission dated 10.04.2017 in CC/288/2016 (Sri Nityananda Sadhukhan vs. Dr. Subhabrata Biswas). Per contra, Ms. Keka Ghosh Dostidar, Ld. Advocate for the complainants has contended that the complainants have prayed for an order of Rs.85,19,875/- + Rs.3,59,500/- for rent + Rs.10,00,000/- as compensation and thereby the value of the complaint comes to Rs.98,79,375/- which falls within the pecuniary limit of this Commission. I have given due consideration to the submission of the Ld. Advocates regarding maintainability of the proceeding. Considering the submission made by the Ld. Advocates for the parties it has to be seen whether this Commission has got jurisdiction to entertain the complaint or not. Needless to say, the jurisdiction means the authority of a Court/Forum to administer justice subject to the limitations imposed by law, which are three-fold, viz (a) as to subject matter; (b) as to territorial jurisdiction and (c) as to pecuniary jurisdiction. If any Court or Forum passes any order without any competence, the said order would be a nullity. It is well settled that the question of territorial and pecuniary jurisdiction has to be ascertained at the initial stage or in the nascent phase of the proceeding. In a decision reported in (2005) 7 SCC 791 (Harshad Chiman Lal Modi vs. D.L.F. Universal Ltd. & Anr.) the Honble Apex Court has observed that the question of pecuniary jurisdiction or territorial jurisdiction has to be dealt with before the Court/Forum where the suit/complaint has been instituted and not in an appellate stage. In Para-7 of the petition of complaint, the complainant has spell out ..... Thus, the opposite party paid a total Rs.59,00,000/- (Rupees Fifty-nine lacs) only i.e. Rs.35,00,000/- for E Type top floor flat and Rs.14,00,000/- for other flats, Rs.10,00,000/- for refundable security deposits. That the opposite party should pay total Rs.1,04,19,875/- for 3361.25 sq. ft. super built up area + Rs.5,00,000/- for capital E Type top floor flat i.e. Rs.1,09,19,875/- (Rupees one crore forty four lakhs nineteen thousand eight hundred seventy-five) only and out of that the opposite party already paid Rs.24,00,000/- (Rs.14,00,000/- for other flats, Rs.10,00,000/- for refundable security deposit) thus, total outstanding becomes Rs.85,19,875/- (Rupees eighty-five lacs nineteen thousand eight hundred seventy-five) only with bank interest due to non-compliance of commitment. The provisions of Section 17(1)(a)(i) of the Act deals with the pecuniary jurisdiction of the State Commission, which provides

17. Jurisdiction of the State Commission. Subject to the other provisions of this Act, the State Commission shall have jurisdiction- to entertain complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees but does not exceed rupees .twenty lakhs one crore ....... In the case of Ambrish Kumar Shukla & Ors. vs. Ferrous Infrastructure Pvt. Ltd. reported in I (2017) CPJ 1 (NC) the Larger Bench of the Honble National Commission while discussing on the point has observed thus- It is evident from a bare perusal of Sections 21, 17 and 11 of the Consumer Protection Act that its 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 deficiencies in the goods purchased or the servicers 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 ..... Therefore, there cannot be any dispute that it is the value of goods or services and compensation claimed which determines pecuniary jurisdiction of the Consumer Forum. The State Commission enjoys a pecuniary jurisdiction not exceeding Rs.1 crore. In the instant case, the complainant has claimed Rs.85,19,875/- by showing the value of the complaint at Rs.98,79,375/- but did not add the amount of Rs.24,00,000/- already received by them from the OP/developer and if the said amount is added with the amount claimed, certainly the amount would exceed Rs.1 crore which is beyond the pecuniary limit of this Commission. Consequently, the CC/237/2015 stands dismissed on contest being not maintainable for want of pecuniary jurisdiction. However, this order of dismissal shall not debar the complainants to approach the appropriate Court/Forum having jurisdiction to entertain the same in accordance with law. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER