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Jameela v/s Puravankara Projects Ltd. & Another

    Appeal No. 228 of 2016

    Decided On, 04 September 2019

    At, Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram

    By, THE HONOURABLE MR. T.S.P. MOOSATH
    By, JUDICIAL MEMBER
    By, THE HONOURABLE MR. R. RANJIT
    By, MEMBER & THE HONOURABLE MRS. A. BEENA KUMARI
    By, MEMBER

    For the Appellant: A. Gopalan, R. Narayan, Advocates. For the Respondents: ---------



Judgment Text

T.S.P. Moosath : Judicial Member

Complainant in CC.No.216/2013 of the Consumer Disputes Redressal Forum, Ernakulam, in short, the district forum has filed the appeal against the Order passed by the forum by which the complaint filed by her was dismissed.

2. The averments contained in the complaint are in brief as follows. As per agreement dated 10.04.2008 the complainant had entrusted the construction of a three bed room apartment with built up area of 1434 sq.ft and proportionate common area of 308 sq.ft having number of 806 on the 8th floor of the apartment complex by name ‘Purav Eternity’ along with a covered car parking space to the opposite parties. Simultaneously, another agreement for the sale of the undivided share of property was also executed between the complainant and the opposite parties. During the year 2000 itself the complainant had paid an amount of Rs 40,86,942/ to the opposite parties, strictly in accordance with the payment schedule and as per the terms and conditions in the agreement. As per the agreement the apartment with all completed facilities ought to have been handed over to the complainant in January 2010. As per the agreement an amount of Rs 7000/- per month has to be given to the complainant by the opposite parties for the period of delay occurred in handing over the apartment to the complainant. But the opposite parties failed to complete the construction within the stipulated time, as per the agreement. The final payment of Rs 1,44,792/- was made by the complainant 0n 18.01.2010, on the assurance of the opposite parties that the construction of the apartment would be over by 31.03.2010. However, the opposite parties did not complete the work of the apartment, contrary to the agreement entered into between the parties concerned, and they also did not handover the completed apartment within the time schedule agreed between the parties. The complainant had to spend a sizable amount towards the construction cost. She had made all arrangements to shift her residence to Kakkanad and she had to suffer humiliation and mental agony due to the deficiency service and violation of the clauses of the agreement between the parties concerned. The opposite parties are liable to pay the complainant in amount of Rs 17,05,643/- towards the rent receivable on the completed apartment from the date agreed for the handing over the possession till the date of filing the complaint. The complainant had issued a lawyer notice to the opposite parties on 08.06.2012 calling upon them to expedite the construction work and to hand over the building to her at the earliest and to pay compensation of Rs 5,00,000/- for the delay in delivery of the apartment after the construction. In the complaint filed by the complainant on 14.09.2013 it is prayed that the opposite parties are to be directed to hand over the possession of the apartment concerned along with a compensation for Rs 18,05,643/- and to pay interest on the principal amount of Rs 41,86,912/- from 28.02.2013 till handing over the apartment and at Rs 7000/- per month from 28.02.2013 till date of handing over the apartment to be realized from the opposite parties and for a direction to pay the cost of the proceedings are also prayed for.

3. The opposite party filed version raising the following contentions. The complaint is not maintainable. She is a defaulter, and is precluded from any remedies through this forum. The total cost of the apartment was Rs 41,36,920/-. The complainant had to pay Rs 2,66,124/- toward K.VAT. But she paid only Rs 21,690/-. Likewise the sale tax paid was only Rs 3,042/- as against Rs 82,358/- due payment of service tax was also in default. The complainant was irregular in making the payments of instalments. The complaint is barred by limitation. There was a little delay in the completion of the apartments, but it was on account of various reasons beyond the control of the opposite parties and therefore deficiency in service cannot be attributed to the opposite parties on that ground. There is violation of the terms of the agreement on the part of the complainant , Complaint is therefore sought to be dismissed.

4. The Power of attorney holder of the complainant was examined as PW1 and the documents produced by her were marked as Exts.A1 to A17. The opposite parties filed proof affidavit and marked Exts.B1 & B2. After that the complainant filed IA.No.475/2015 to allow her to delete the first prayer in the complaint. The district forum found that the forum lacks pecuniary jurisdiction to enquire into the complaint. The district forum dismissed the IA.No.475/2015 filed by the complainant. The district forum dismissed the complaint also.

5. Aggrieved by the order passed by the district forum the complainant has preferred the present appeal.

6. Heard, perused the records.

7. There is no dispute to the fact that the complainant and the opposite parties executed Exts.A1 & A2 agreements regarding the disputed flat and undivided share in the property. It is the case of the complainant that she had paid the entire amount to the opposite parties, as per the schedule mentioned in Ext.A2 agreement. As per Ext.A2 the opposite parties have to complete the construction of the flat and hand over the possession of the same to the complainant on before 31.01.2010. Grace period of six months was also provided. The allegation of the complainant is that even though she paid the entire amount the opposite parties have not completed the construction and hand over the flat to her. In Ext.A2 it is agreed by the opposite parties that they would pay compensation to the complainant in case of delay on their part in completing the construction and handing over the possession to her. Alleging deficiency in service on the part of the opposite parties, the complainant has filed the complaint to direct the opposite parties to hand over the apartment no.806 on the 8th floor of the apartment complex together with covered car parking space in “ Purava Eternity’ to the complainant as early as possible, to direct the opposite parties to pay Rs 18,563/- with future interest at the rate of 18% on the amount of Rs 41,86,912/- from 28.02.2013 till handing over the apartment to the complainant and Rs 7000/- per month from 28.02.2013 and to pay the cost of the proceedings. The complaint was filed on 16.03.2013. The opposite parties contended that there was defaulted on the part of the complainant in making the instalments regularly and she has not paid the full amount. The opposite parties admitted that there was some delay on their part in completing the construction and handing over possession of the flat to the complainant. But according to them it was because of the reasons beyond their control. So as per the terms of Ext.A2 agreement they are not liable to pay any compensation to the complainant. It is contended by the opposite parties that there was no deficiency in service on their part. The power of attorney holder of the complainant was examined as PW1 and Exts A1 to A17 were marked the opposite parties filed affidavit and after that the opposite parties took the contention that the district forum has no pecuniary jurisdiction to enquire into the complaint. At that time the complainant, filed IA.No.475/15 to allow her to delete the first prayer in the complaint to give direction to the opposite parties to hand over possession of the flat to her, since she had already got possession of the flat on 19.09.2015. The district forum dismissed the IA stating that the complainant took possession of the apartment without obtaining permission of the forum before which the matter was pending consideration. The district forum found that the complainant had committed breach of judicial discipline, propriety and manners and that fact alone would disentitle the complainant from seeking other reliefs which are interwined. The district forum found that it is not a case where the complaint is to be returned for want of jurisdiction but it is a case which deserves dismissal not only for want of bonafides and propriety in the approach of the complainant but also for having settled the main issued by herself out of the forum, warranting no further intereference by any judiciary forum.

8. The district forum observed in para 4 of the complaint the complainant had admitted that she had paid Rs 41,86,912/- to the opposite parties in the year 2010 itself. The first prayer in the complaint is to direct the opposite parties to hand over the apartment No 806 on the 8th floor of the apartment complex together with the covered car parking space to the complainant as early as possible. Therefore, it is clear that the service required by the complainant is the delivery of the apartment having the value of Rs 41,86,912/-. The said amount is more than double the amount of the pecuniary jurisdiction of the forum. So with the relief sought for as no.1, the complaint as framed is not maintainable before the Forum. The district forum found that the forum did not have the pecuniary jurisdiction to entertain the compliant as framed. It is to be noted that the complainant was filed on 16.03.2013. The opposite parties appeared and filed version on 23.07.2013. In the version filed by the opposite parties they had not raised the contention that the forum has no pecuniary jurisdiction to entertain the complaint and hence the complaint is not maintainable before the forum. The power of attorney holder of the complaint was examined as PW1 and documents were marked as Exts.A1 to A17. The opposite parties filed affidavit. After that in August 2015 the opposite parties filed the petition contending that the forum has no pecuniary jurisdiction to entertain the complaint. It is a well settled position of law, as laid down by the various decisions of Hon’ble Supreme Court, that, so far as objection regarding territorial and pecuniary jurisdiction is to be taken, it is to be taken at the earliest opportunity and if such objection is not taken at the earliest, it cannot be allowed to be taken as a subsequent stage. As stated above, in the version filed by the opposite parties in 2013 they have no such contention regarding the pecuniary jurisdiction of the district forum to entertain the complaint. They raised the contention regarding the pecuniary jurisdiction only after the evidence of the complaint was closed. So the contention raised by the opposite parties regarding the pecuniary jurisdiction of the forum to entertain the complaint is highly belated. It is true that the question regarding the pecuniary jurisdiction has to be taken into consideration as on the date of the filing of the complaint and on the basis of the averments / statements made in the complaint. It is the duty of the forum to see whether complaint filed is within the jurisdiction of the forum, where the complaint was filed, at the time of filing of the complaint and to consider that aspect, no petition filed by the opposite parties is necessary. But in the present case it appears that the concerned officials and even the members of the Forum have not noticed that aspect. The forum found that the it lacks pecuniary jurisdiction after the opposite party filed petition regarding that aspect in August 2015, at a highly belated stage. Further, the complainant has filed IA.No.475/15 to allow her to delete the first prayer in the complaint, to give direction to the opposite parties to hand over the possession of the flat to her on the ground that she got possession of the flat on 19.09.2015. There is no dispute to the fact that if the first prayer in the complaint is deleted, the complaint will come within the pecuniary jurisdiction of the forum. The district forum dismissed the IA finding that the complainant had taken possession of the apartment without the permission of the court and she committed breach of judicial discipline, propriety and manners. It is true that the complainant ought to have sought permission of the forum to take possession of the apartment since the matter was pending before the forum and she committed breach of judicial discipline. The complaint was filed on 16.03.2003. The first prayer in the complaint was to give direction to the opposite parties to hand over the possession of the flat to the complainant as early as possible. In the version filed by the opposite parties in July 2013 they had no case that they had completed the construction of the flat and they were ready to hand over the possession of the flat. If the opposite parties had completed the construction of the flat and they are ready to hand over the possession of the same to the complainant in 2013 or 2014 they would have informed the same to the district forum. The opposite parties had no case that before 19.09.2015, the complainant obtained possession of the flat / apartment. Since the complainant got possession of the apartment she had filed IA.No.465/15 to allow her to delete the first prayer in the complaint, to direct the opposite parties to hand over the possession of the apartment to her. Since the complainant obtained possession of the flat the first relief sought for in the complaint has become infructuous. Of course, the complainant ought to have has sought the permission of the forum for taking possession of the flat since the matter was pending before the forum. But that is not a ground to dismiss the IA.No.475/15 filed by the complainant to delete the first prayer in the complaint, since the IA was filed after obtaining possession of the flat and since that prayer has become infructuous. It is a well settled position of law that the complainant / plaintiff can abandon or relinquish portion of his claim and for that purpose even the permission of the court is not necessary and the permission of the court is necessary only if the prayer of the abandonment or relinquishment is accompanied with the prayer that he /she may be allowed to file a fresh suit / complaint with regard to that claim. The only restriction is that the abandonment or relinquishment of the claim / relief cannot be allowed after there is an order for return of the complaint / plaint to be presented before the appropriate court. That can be done by the unilateral act of the plaintiff/ complaint by making statement to the court and proceed with regard to the rest of the claim. So the district forum ought to have allowed IA.No.475/15 filed by the complainant. The reasons stated by the district forum for dismissing the IA are not valid and the order passed by the district forum is not sustainable. Hence order passed by the district forum on IA.No.475/15 is set aside. Further even if it is found that the district forum has no pecuniary jurisdiction to enquire into the complaint, the forum ought to have returned the complaint to the complainant to be presented before proper forum. But instead of that, the district forum dismissed the complaint. The main reason stated by the district forum for dismissing the complaint is that the complainant had obtained possession of the flat without obtaining permission of the forum while the complaint was pending before the forum and that fact alone would disentitle her from seeking other reliefs which are interwined with other issue of handing over possession of the apartment. District forum found that having settled the main issue by the complainant, the subsidiary issues are deemed to have being settled and so the complainant is not entitled to get to other reliefs. As stated earlier, the complainant ought to have obtained permission of the forum before taking possession of the flat and her act amounts to breach of judicial discipline. But the finding of the district forum that the complainant is not entitled to get any other reliefs sought for in the complaint, since she obtained the possession of the flat without the permission of the district forum is not correct. The second prayer in the complaint is to direct the opposite parties to pay Rs 18,05,643/- as compensation with interest from 28.02.2013 till handing over possession of the flat to the complainant and Rs 7000/- per month from 28.02.2013 till handing over possession of the flat to her. The complainant is claiming the amount of Rs 7000/- per month on the basis of Ext.A2 agreement wherein the opposite parties agreed to pay compensation of Rs 7000/- per month to the complainant, if there is delay on their part for completing the construction and handing over possession of flat to her. Even before the filing compliant, if the complainant had obtained possession of the flat, still she can file the complaint claiming compensation from the opposite parties for the delay in handing over possession of the flat to her and that relief got independent existence. The question whether th

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e complainant is entitled to get compensation from the opposite parties for the delay on their part in handing over the possession of the flat and what is the amount to which the complainant is entitled to realize from the opposite parties are matters to be considered on merits, considering the contentions of the opposite parties and the evidence. The district forum, without considering those matters, without going to the merits of the claim, dismissed the complaint. We consider that the Order passed by the district forum is not sustainable and the order is to be set aside. We do so. The matter is to be remanded to the district forum for fresh consideration of the matters discussed above. In the result, the appeal is allowed and the order passed by the district forum is set aside. The matter is remanded to the district forum for fresh disposal. On receipt of the records, the district forum shall take back the complaint and IA.475/15 into file. The district forum shall consider IA.No.475/15 afresh and pass appropriate order in the IA. The district forum shall consider the question of the pecuniary jurisdiction afresh and if the district forum finds that it has no pecuniary jurisdiction to entertain the complaint, the complaint shall be returned to the complainant to be presented before the appropriate forum. If the district forum find that it has got pecuniary jurisdiction to entertain the complaint, the district forum shall proceed with the trial and consider whether the complainant is entitled to get compensation form the opposite parties and if so what is the amount to which she entitled to realise from the opposite parties. The district forum shall dispose of the complaint, as expeditiously as possible. Parties are directed to suffer their respective costs. Send back the records to the District forum, forthwith.
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