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Prakash Kumar Biswal & Others v/s Subham Construction & Others

    Complaint Case No. CC/165 of 2013

    Decided On, 21 November 2017

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

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

    For the Complainants: Debargha Basu, Advocate. For the Opposite Parties: None.



Judgment Text


1. The instant complaint under Section 17 (inadvertently mentioned under Consumer Protection Act, 1986 (for brevity, ‘the Act’) is at the instance of 21 flat owners against the Developer/Builder (Opposite Party Nos.1 & 2) and others with whom no privity of contract exists on the allegation of deficiency in services on the part of them in a consumer dispute of housing construction.

Shorn of details, Complainant’s case is that on 21.07.2011 the OP No.1/deve the Deed of Conveyance in favour of all the Complainants. However, after taking possession, the complainants found several deficiencies in the matter of construction of the flats and the project being named ‘Capricorn Springfield’ lying and situated at Premises No.53, H.L. Sarkar Road, Kolkata – 700070. The complainants have stated that the OP No.1 is found deficient in several aspects – (a) the OPs have blocked with brick walls a major portion in the ground floor of Block-A which is supposed to be common area; (b) OPs have blocked the brick walls in the front portion of the building passage in the ground floor in the southern side of Block-A which is supposed to be common area; (c) most of the common walls have dampened and eroding day by day; (d) the OPs have not carried out the cleaning work and beautification of front portion of the residential building etc. Hence, the complainants lodged the complaint with a prayer for compensation of Rs. 2,35,000/- each for each of 21 complainants aggregating a total compensation of Rs.49,35,000/-.

2. The OP Nos. 1 & 2 developer and its partner appeared but ultimately did Therefore, under compulsion the petition of complaint was heard and proceeded against the Opposite Parties ex parte.

3. On behalf of the complainants, Complainant No.21 Sri Palash Bhattachary evidence through affidavit. The complainants have also filed several documents in support of their claim.

I have scrutinised the materials on record and considered the submission a Ld. Advocates appearing for the parties.

At the outset, it would be pertinent to mention that since 21 flat owners complaint as ‘class action’ against the developer/builder in respect of a project, in accordance with Section 12(1)(c) of the Act, they sought permission of this Commission and the said leave was granted by Order No.03 dated 16.12.2013.

Having heard the Ld. Advocate for the complainants and on perusal of the re the complainants have not added the value of the 21 flats and simply they have claimed compensation of Rs.2,35,000/- each on account of deficiency in services on the part of the developer.

4. For proper appreciation, it would be worthwhile to reproduce the provision o of the Act which provides –

“(1) Subject to other provisions of this Act, the State Commission shall have jurisdiction –

a. to entertain –

i. Complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees twenty lakh but does not exceed rupees one crore;.......”

5. A Larger Bench of the Hon’ble National Commission headed by Justice V. Balakrishana Eradi in a decision reported in 1996 (2) CPR 26 has observed that the total value of the goods and/or services as well as that of compensation would determine the pecuniary limit of jurisdiction of Consumer Fora. In another decision dated 12.03.2012 in RP/2679/2011 (P.S. Srijan Enclave & Ors. v. Sanjeev Bhargav) the Hon’ble National Commission has held that the 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.

Ld. Advocate for the complainants has drawn my attention to the Order No.22 dated 18.05.2017 passed by the 1st Bench of this Commission and referred me a decision dated 19.02.2016 passed by a Single Member of the National Commission (Southern Apartment Owners’ Association v. Housing Consultancy Pvt. Ltd.). The citation place before me does not show FA number or the year. In any case, subsequently, vide Order dated 24.5.2016 passed in CC/97/2016 a Two Members Bench of the National Commission referred a matter to the Larger Bench of the Commission for decision on several issues. The Larger Bench of the Hon’ble National Consumer Commission in a decision reported in I (2017) CPJ 1 (NC) (Ambrish Kumar Shukla & Ors. v. Ferrous Infrastructure Pvt. Ltd.) in answering the question has observed thus –

“It is evident from a bare perusal of Sections 21, 17 & 11 of the Consumer Protection Act that it is 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 deficiency 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 pecuniary jurisdiction to entertain the complaint .....”. By giving an illustration, the Hon’ble National Commission has recorded “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 lakhs, the complaint would have to be filed before this Commission, the value of the services itself being more than Rs.1.00 crore.”

I am not convinced with the submission of the Ld. Advocate for the complainants and as such I differ with the observation in Order No.22 dated 18.5.2017 (which was an interlocutory order) and the decision in the case of South Apartment Owners Association (supra). The judicial discipline has to be followed and when the complainants who were 21 in numbers did not mention the value of the flats in assessing the total valuation of the

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Complainant and when it is apparent that the same is above 1 Crore, certainly this Commission lacks pecuniary jurisdiction to entertain the complaint. So far as deficiency in services on the part of the developer is concerned, the complainants did not take any pain to appoint any technical person or expert in accordance with Section 13(4) of the Act to prove the alleged deficiencies. Therefore, on the basis of mere statement of the complainants, the alleged deficiency like damping of wall etc. cannot be appreciated. Therefore, on merit also, the complaint should be dismissed. Consequently, the instant complaint is dismissed ex parte. Complaint dismissed.
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