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Girish Shankarrao Deopujari & Another v/s M/s. Ashish Infra projects & Others

    First Appeal No. A/144 of 2011
    Decided On, 04 January 2019
    At, Maharshtra State Consumer Disputes Redressal Commission Nagpur
    By, MEMBER
    For the Appellant: Naphade, Advocate. For the Respondent: Gawande, Advocate.

Judgment Text
B.A. Shaikh, Presiding Member.

1. This appeal is filed by the original complainant Nos.1 and 2, feeling aggrieved by an order dated 23/11/2010 passed by the District Consumer Forum Nagpur, by which the consumer complaint bearing No.25/2010 has been dismissed.

2. The case of the original complainants/appellants as set out by them in the aforesaid consumer complaint in brief is as under.

a) The opposite party (for short O.P.) Nos.2 to 4/respondent Nos.2 to 4 herein are the owners of the land and they authorized original O.P.No.1/respondent No.1 herein to develop their said land and construct various apartments thereon and to sell the same to prospective purchasers. An agreement dated 02/08/2006 was executed by them to that effect. The complainants were interested in purchasing one of the apartment/house from the O.P.Nos.1 to 4. Therefore they booked one house with O.P.No.1 by paying Rs.11,00,000/- by way of cheque dated 15/10/2007. Thereafter an agreement was executed in between the complainants on one side and O.P.Nos.1 to 4 on another side and it was duly registered on 16/11/2007. As per that agreement the price of the house alongwith the land on which it was to be constructed, was fixed at Rs.21,12,000/-. The complainants had agreed to pay the balance consideration of Rs.9,12,000/- as per the time schedule mentioned in the said agreement.

b) However the O.P.No.1 demanded Rs.9,12,000/- from the complainants and said that if that amount is not paid then there will be delay in delivery of the possession. Therefore the complainants paid Rs.1,00,000/- by way of cheque dated 26/12/2007 and Rs.2,75,000/- by way of another cheque dated 17/01/2008 i.e. total Rs.3,75,000/- before the execution of sale deed. The balance amount of Rs.5,37,000/- was to be paid at the time of registration of the sale deed. However from the loan account of the complainants, an amount of Rs.9,12,000/- was directly paid to O.P.No.1 to 4 vide cheque No.4190 dated 14/12/2007. Thus the O.P.No.1 to 4 received additional amount of Rs.3,75,000/- and avoided to refund that amount to the complainant though it was demanded from time to time.

c) Moreover, it was also agreed in the agreement that in case of delay in delivery of possession, the O.Ps. will pay damages @ Rs.2000/- per month. Hence the complainants issued legal notices on 05/08/2009 and 23/09/2009 to the O.Ps. for demanding the said damages due to delay in delivery of possession. Thus the O.Ps. committed breach of the terms and conditions of the agreement.

d) The O.Ps. delivered possession of the house to the complainants after the aforesaid amount of R.3,75,000/- was directly paid by way of two cheques to them. However the additional amount was not refunded by the O.Ps. even after service of notice. The O.Ps. also executed registered sale deed of the house in favour of the complainants.

3. Thus alleging deficiency in service on the part of O.Ps., the appellants herein filed consumer complaint before the Forum below. The appellants sought following reliefs in that complaint,

(i) Direct the O.Ps. to refund Rs.3,75,000/- to the complainants,

(ii) Direct the O.Ps. to pay damages @ Rs.2,000/- per month, total amounting to Rs.25,000/-,

(iii) Direct the O.Ps. to pay complainants compensation of Rs.50,000/- for mental harassment,

(iv) Direct the O.Ps. to complete the incomplete work as mentioned in para No.11 of the complaint regarding which request was made as per letter dated 03/07/2008 by the complainants to them.

4. The said complaint was resisted by O.P.Nos.2 to 4 by filing their reply. They admitted that the O.P.No.1 had entered in to an agreement of development with them by executing power of attorney. However the complainants have no concern with that development agreement. It is admitted that O.P.Nos.2 to 4 are the original owners of the land. The complainants already got sale deed of the house in question on 22/01/2006 as executed by O.P.No.1 in his favour. The O.P.Nos.2 to 4 have no concern with the dispute in between the complainant and O.P.No.1. The complainants had paid entire money to O.P.No.1 only. There is no relationship of consumer and service provider in between the complainant on side and O.P.Nos.2 to 4 on another side and that the complaint also does not fall within a purview of Consumer Protection Act 1986 and therefore the O.P.Nos.2 to 4 therefore requested that complaint may be dismissed.

5. The O.P.No.1 also filed reply to the complaint and thereby resisted it. It is admitted by O.P.No.1 that as per agreement, the price of the row house was fixed at Rs.21,12,000/-. The O.P.No.1 carried out additional construction in that row house as per request of the complainants. It is not disputed that O.P.Nos.2 to 4 executed power of attorney for development of their land in favour of the O.P.No.1. It was the responsibility of O.P.No.1 only to make construction on that land and to sell the row houses constructed thereon. It is not disputed that on 15/10/2007 the complainants paid Rs.11,00,000/- by way of cheque to O.P.No.1. It is also not disputed that the loan was granted by HDFC Bank as per request of the complainants and paid to O.P.No.1. It was agreed that as per agreement dated 16/11/2007 balance amount of Rs.2,06,000/- would be paid within one month and Rs.10,000/- would be paid at the time of registration of sale deed.

6. The O.P.No.1 further submitted that it got permission for construction of row house in the year 2006 and it was decided that possession of the row house will be given till 31/12/2007 to the complainants. However the complainants had requested the O.P.No.1 on 18/11/2007 to carry outs additional construction and they were ready to pay additional charges for the same. Therefore as per his request the additional construction was made as specified in the reply of O.P.No.1. The additional charges of Rs.4,64,000/- were to be paid for that purpose. The possession of the row house was given to the complainants. It is denied that the O.P.No.1 got excess amount of Rs.3,75,000/- from the complainants. It is denied that some work was left incomplete. Therefore it was prayed by O.P.No.1 in its reply that complaint may be dismissed with cost.

7. The learned District Forum Nagpur after hearing both parties and considering evidence brought on record came to the conclusion that the value of row house is more than Rs.20,00,000/- which is beyond the pecuniary jurisdiction of the said Forum. Therefore the Forum disposed of the said complaint by passing impugned order. The Forum gave liberty to the complainants to file complaint before competent Court.

8. Feeling aggrieved by that order, the complainant Nos.1 to 4 have filed this appeal. We have heard advocate Mr.Naphade appearing for the appellants and advocate Mr.Gawande appearing for the respondents. We have also perused the record and proceedings of the appeal.

9. The learned advocates of both the parties also filed written notes of arguments which we have perused. The learned advocate of the appellant argued in brief that the Forum below erred in dismissing the complaint on the ground that the valuation of the subject matter is beyond its pecuniary jurisdiction. He also submitted that respondents did not raise any objection about pecuniary jurisdiction before the Forum below and the complaint was already admitted without any such objection and it is not just and proper to dismiss the complaint after hearing both parties on the ground that valuation of subject matter is not within the pecuniary jurisdiction of the Forum. He also submitted that the claim was not exceeding Rs.5,00,000/- i.e. for damages of Rs.25,000/-, refund of Rs.3,75,000/- paid in excess and compensation of Rs.50,000/- i.e. total for Rs.4,50,000/- only and the claim was thus within the pecuniary jurisdiction of the Forum. Hence he requested that impugned order may be set aside and the appeal may be allowed. He relied on the decision in the following two cases.

i. Vinita Goyal and others…….V/s……Unitech Limited and others, reported in III (2014) CPJ 139, Haryana State Commission, Panchkula. In that case it is held by the learned State Commission that flat does not fall within definition of goods and for assessing the value of service, price of flat cannot be counted because flat is immovable property.

ii. Quality Foils India Pvt.Ltd………V/s……Bank of Madura Ltd and anothers, reported in II (1996) CPJ 103 (NC). It is held by the Hon’ble National Commission that the pecuniary jurisdiction of Consumer Forum is determination upon aggregate value of the services as well as that of compensation claimed.

10. On the other hand, the learned advocate of the respondent supported the impugned order and submitted that the appeal may be dismissed with cost.

11. We find that admittedly the total price of the row house alongwith the price of the land on which it is constructed was Rs.21,12,000/-. The complainants had hired services of O.P.Nos.1 to 4 for making construction of that row house by paying its price and other charges.

12. The Hon’ble National Commission in the case of Ambrish Kumar Shukla and 21 others…….V/s….Ferrous Infrastructure Pvt.Ltd, reported in consumer complaint No.97/2016 passed an order on 07/10/2016 and settled the law as regards the pecuniary jurisdiction as contemplated under Consumer Protection Act, 1986. The learned two members of the bench of National Commission had referred to larger bench for decision of one of the issue which is relevant to the present case. The Hon’ble larger bench of National Commission while deciding the said issue regarding pecuniary jurisdiction made observations as under :-

“ 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 the deficiencies in the goods purchased or the services 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. For instance if a person purchased a machine for more than Rs.1,00 crore, a manufacturing defect is found in the machine and the cost of removing the said defect is Rs.10.00 lack, it is the aggregate of the sale consideration paid by the consumer for the machine and compensation, if any, claimed in the complaint which would determine the pecuniary jurisdiction of the Consumer Forum. Similarly, 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 the services itself being more than Rs.1.00 crore”.

13. Thus the Hon’ble National Commission has made very clear that if the house is sold for more than Rs.1.00 crore and if certain defects are found in the house and the cost of removing those defects is Rs.5 lacks then complaint would have to be filed before the National Commission as the value of the services itself being more than Rs.1.00 crore. In the instant case though the complaint is filed for refund of Rs.3,75,000/- with damages of Rs.25,00

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0/-, compensation Rs.50,000/- and with direction to the respondents to complete the incomplete construction, still the complaint is not maintainable before the Forum as the services are sought by the appellants from the respondents was for more than Rs.20,00,000/- i.e. for Rs.21,12,000/-. 14. Therefore applying the aforesaid decision of the Hon’ble National Commission to the facts and circumstances of the present case we hold that the District Forum below has rightly held that the valuation of the subject matter of the complaint is beyond its pecuniary jurisdiction, which is of Rs.20,00,000/- only. Hence no fault or error is found in the impugned order for interference therein in this appeal. 15. The original complainants/appellants are also given liberty to approach competent Court for seeking redressal of their grievance in accordance with law. 16. The aforesaid decisions relied on by the learned advocate of the appellants are not applicable to the facts and circumstances of the present case since they are different from those of the said case. Hence appeal deserves to be dismissed. ORDER I. The appeal is dismissed. II. No order as to costs in appeal. III. Copy of the order be furnished to both parties, free of cost.