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Dilip Kumar Biswas & Another v/s Millennium India Construction & Others

    First Appeal No. A/136/2018

    Decided On, 05 September 2018

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. SAMARESH PRASAD CHOWDHURY
    By, PRESIDING MEMBER

    For the Appellant: Swapan Modak, Advocate. For the Respondent: None Appear.



Judgment Text

The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the behest of the Complainants to impeach the Final Order/judgement dated 11.01.2018 passed by the District Consumer Disputes Redressal Forum, Kolkata, Unit-III (for short, Ld. District Forum) in Consumer Complaint No. 257/2017. By the impugned order, the Ld. District Forum allowed the complaint lodged by the Appellant ex-parte with the direction upon the Respondents/Opposite Parties to handover possession of two garage spaces to the Appellants/Complainants and one 500 sq. ft. flat within three months from the date of order and to pay Rs.10,000/- as litigation cost.

The Appellants herein being Complainants lodged the complaint stating that he was the owner of a piece of land measuring about 4 cottahs with a standing structure thereon lying and situated at Premises No.348/84, N.S.C. Bose Road, P.S.- Netaji Nagar, Kolkata – 700047, Dist – South 24 Parganas within the local limits of Ward No.100 of Kolkata Municipal Corporation (KMC). On 08.09.2008 the complainants had entered into a Development Agreement with OP No.1 Construction Firm represented by OP Nos. 2 & 3 to raise a construction over the plot in question. As per Development Agreement, the complainants being landowners entitled to – 50% of the total constructed area to be made in the proposed G+3 or four-storied building which includes – (i) entire first floor containing of two flats; (ii) two garage spaces measuring about 150 sq. ft. duly covered; (iii) one flat measuring about 500 sq. ft. on the ground floor and (iv) Rs.3,00,000/- as adjustable money against 250 sq. ft. constructed area. Subsequently, a supplementary agreement was executed on 05.03.2009 and it was stipulated that the complainants will also be entitled to receive the entire top floor which includes two self-contained residential flats each measuring 850 sq. ft. The complainants have alleged that the OPs have provided two flats on the 1st floor and also two flats on the 3rd floor (top floor) but did not provide two garage spaces, one flat measuring about 500 sq. ft. on the ground floor and in this regard, all the requests and persuasions went in vain. Hence, the appellants approached the Ld. District Forum with prayer for several reliefs, viz. – (a) a direction for handing over two covered garage spaces and the ground floor flat measuring about 500 sq. ft.; (b) payment of compensation for 36 months @ Rs.20,000/- per month and (c) litigation cost of Rs.50,000/- etc.

The Respondents being Opposite Parties by filing a joint written version have resisted that the allegations made by the complainants and prayed for dismissal of the complaint.

After perusal of the record and the documents filed by the parties, the Ld. District Forum by the impugned order allowed the complaint with certain directions upon the opposite parties, as indicated above. However, being aggrieved and dissatisfied with the said order, the complainants have come up in this Commission with the present appeal.

I have heard Mr. A. Chakraborty with Mr. Swapan Modak, Ld. Advocates appearing for the appellants. Despite service of notice upon respondent nos. 1 to 3 on 10.03.2018 none of them have appeared. Under compulsion, appeal was heard ex-parte.

The overwhelming evidence on record make it abundantly clear that complainants being owners of a piece of land measuring about 4 cottahs along with structure standing thereon being a portion of Premises No.348/84, N.S.C. Bose Road, P.S.- Netaji Nagar, Kolkata – 700047, Dist – South 24 Parganas within the local limits of Ward No.100 of Kolkata Municipal Corporation (KMC). On 08.09.2008 the complainants had entered into a Development Agreement with Respondent No.1 Construction Firm represented by Respondent Nos. 2 & 3 to raise a construction over the plot in question. As per Development Agreement, the appellants being landowners entitled to – 50% of the total constructed area to be made in the proposed G+3 or four-storied building which includes – (i) entire first floor containing of two flats; (ii) two garage spaces measuring about 150 sq. ft. duly covered; (iii) one flat measuring about 500 sq. ft. on the ground floor and (iv) Rs.3,00,000/- as adjustable money against 250 sq. ft. constructed area. Subsequently, a supplementary agreement was executed on 05.03.2009 and it was stipulated that the appellants will also be entitled to receive the entire top floor which includes two self-contained residential flats each measuring 850 sq. ft.

The appellants have alleged that the respondents have provided two flats on the 1st floor and also two flats on the 3rd floor (top floor) but did not provide two garage spaces, one flat measuring about 500 sq. ft. on the ground floor.

Ld. Advocate for the Appellants has submitted that the Respondents handed over keys of the two flats on the top floor as per Supplementary Agreement and on getting the same, they had fixed two collapsible gates but after 2/3 days of such fixation, the respondents illegally damaged the locks fixed on the collapsible gates and locked those two gates with chains and locks for which the dispute is required to be inspected through Commission.

Upon hearing the Ld. Advocate for the Appellants, it appears to me that the appellants being complainants should have made such a prayer before the Ld. District Forum and in an appeal, the point cannot be considered unless it is considered by the original Forum. Now, at best one thing can be done to remand the matter to the Ld. District Forum.

But the inherent defect of the complaint is that the Ld. District Forum had no pecuniary jurisdiction at all to entertain the complaint. The appellants/complainants being landowners approached the Ld. District Forum claiming themselves as ‘consumer’ within the meaning of Section 2(1)(d) of the Act relying upon the decision of the Hon’ble Supreme Court reported in (2008) 10 SCC 345 [Faqir Chand Gulati – Vs. – Uppal Agencies Pvt. Ltd.]. In claiming themselves as ‘consumer’, the valuation should be assessed on the basis of market value of owner’s allocation. In the case beforehand, as per terms of agreement dated 08.09.2008 and Supplementary Agreement dated 05.03.2009, the appellants/complainants are entitled to - (i) entire first floor containing of two flats; (ii) two garage spaces measuring about 150 sq. ft. duly covered; (iii) one flat measuring about 500 sq. ft. on the ground floor; (iv) two flats measuring about 850 sq. ft. each on the 3rd floor and (v) Rs.3,00,000/- as adjustable money against 250 sq. ft. constructed area.

The judicial notice may be drawn to the fact that the value of owner’s allocation will certainly exceed more than one crore beyond the pecuniary jurisdiction even of this Commission, far less to speak of about the jurisdiction of the Ld. District Forum.

For appreciation of the matter, it would be pertinent to have a look to the provisions of section 11 (1) of the Act which provides - '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'.

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.

The Act does not specifically lay down as to how a complaint is to be valued for the purpose of jurisdiction. However, the Hon’ble National Commission is consistent with the view that it is the total value of the goods and / or services as well as that of compensation would determine the pecuniary limit of jurisdiction of Consumer Forum. In a decision reported in 1996 (2) CPR 26 (M/S Quality Foils India Pvt. Ltd Vs Bank of Madura Ltd and Anr.) a larger Bench of Hon’ble National Commission presided by Justice V. Balakrishna Eradi has observed –

'in our view, where a claim of compensation is pleaded in a Consumer Complaint, then the total value of the goods and / or services as well as that of compensation would determine the pecuniary limit of jurisdiction’.

In a decision dated 12.03.2012 in RP/2679/2011 (P.S. Srijan Enclave and Ors Vs Sanjeev Bhargav) the National Commission has observed thus:

'it is settled Law that determination of pecuniary jurisdiction in respect of a dispute regarding service relating to housing would include the value of the property as a whole as well as the compensation demanded in the complaint.'

In the case of Ambrish Kumar Shukla & Ors (supra) the Larger Bench of the Hon’ble 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 it’s 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 ....'. Giving instance to the same it has been stated – ‘ if for instance, a house is sold for more than Rs. 1.00 crore, certain defects are found in the house, and the cost of removing those defects is Rs. 5.00 lacs, the complaint would have to be filed before this Commission, the value of services itself being more than Rs. 1.00 crore’.

Therefore, there cannot be any

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dispute that it is the value of goods or services and compensation claimed which determines pecuniary jurisdiction of the Consumer Forum. The District Forum enjoys a pecuniary jurisdiction not exceeding Rs.20 lakhs. In the instant case, the value of landowners allocation will certainly exceed Rs.1 crore and perhaps for that reason in the petition of complaint, the complainants have not mentioned anything relating to valuation of the property. Unfortunately, overlooking the same, the Ld. District Forum proceeded to dispose of the complaint on merit which is nothing but a mere abuse of the process of the Court. Considering the above, the impugned final order/judgement is hereby set aside. Consequently, the complaint stands rejected being not maintainable for want of pecuniary jurisdiction. However, this order will not debar the appellants/complainants to approach the appropriate Court/Forum having jurisdiction to entertain the same in accordance with law. The Registrar of the Commission is directed to send a copy of the order to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-III for information.
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