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Shio Kumar Gupta & Another v/s Cibola Construction Project Pvt. Ltd. & Others

    First Appeal No. A/315 of 2016

    Decided On, 01 September 2017

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

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

    For the Appellants: Krishna Pada Pal, Souvik Maji, Advocates. For the Respondents: Gourdas Chakraborty, Advocate.



Judgment Text


1. Challenge in this Appeal under Section 15 of the Consumer Pro (hereinafter referred to as ‘the Act’) is to the Order No.12 dated 08.03.2016 passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-III (for short, Ld. District Forum) in Consumer Complaint no. 05/2015. By the impugned order, the Ld. District Forum allowed the consumer complaint lodged by the Appellants under Section 12 of the Act with the direction upon the Opposite Parties/Respondents to pay complainant of Rs.30,000/- and litigation cost of Rs.5,000/- within 2 months from the date of order.

2. The Appellants herein being Complainants lodged the complaint as 02.05.2015 they entered into an agreement with the opposite parties to purchase of a flat measuring about 813 sq. ft. super built up area being Unit No.T-1on the 3 rd floor and one car parking space covering an area of 120 sq. ft. on the ground floor together with common areas and facilities in a multi-storied building named ‘Rose Garden’ lying and situated at Premises No.25A, Mahatma Gandhi Road, Adhikari Para, Kolkata – 700063, Dist- South 24 Parganas within the local limits of Kolkata Municipal Corporation at a total consideration of Rs.24 lakhs. The complainants have paid Rs.4,80,000/- in total between 02.05.2015 and 24.06.2015 towards part consideration to the opposite parties and also paid an amount of Rs.15,078/- towards service tax. The complainants had applied for loan from LIC Housing Finance Ltd. for an amount of Rs.18 lakhs and the amount was sanctioned. However, all on a sudden by a letter dated 29.06.2015 the opposite parties sent two cheques for Rs.4,80,000/- and Rs.15,078/- in favour of the complainants towards refund of booking money. Hence, the appellants approached the Ld. District Forum with prayer for compensation of Rs. 4,00,000/-, cost of Rs.50,000/- incurred by the complainants and litigation cost of Rs.30,000/-.

3. The Respondent No.1being represented by Respondent Nos. 2 & 5 i.e. the OP nos 1, 2 & 5 by filing a written version disputed the claim and prayed for dismissal of the complaint.

4. After assessing the materials on record, the Ld. District Forum by the i allowed the complaint with certain directions upon the OPs, as indicated above. Being dissatisfied with the awarded amount, complainants have come up in this Commission with the instant appeal.

5. I have heard Mr. Krishna Pada Pal and Dr. Gourdas Chakraborty, Ld. Advo for the appellants and the respondents respectively and also perused the materials on record.

6. On scrutiny of materials on the record and having heard the Ld. Advocates ap respective parties and on perusal of the Agreement for Sale between the parties, it emerges that the appellants/complainants agreed to purchase of a flat measuring about 813 sq. ft. super built up area being Unit No.T-1on the 3 rd floor and one car parking space covering an area of 120 sq. ft. on the ground floor together with common areas and facilities in a multi-storied building named ‘Rose Garden’ lying and situated at Premises No.25A, Mahatma Gandhi Road, Adhikari Para, Kolkata – 700063, Dist- South 24 Parganas within the local limits of Kolkata Municipal Corporation at a total consideration of Rs.24 lakhs. In the petition of complaint, the appellants/complainants claimed compensation of Rs.4,00,000/-. Therefore, if the value of the flat and the compensation are added together, it comes to Rs.28 lakhs.

For proper appreciation of the dispute as to pecuniary jurisdiction, which has addressed by the Ld. District Forum, it would be worthwhile to reproduce the provisions of Section 11(1) of the Act which are as follows:-

“(1) Subject to other provisions of this Act, the District Forum shall have entertain complaints where the value of the goods or services and the compensation, if any, claimed ‘does not exceed rupees twenty lakhs ”.

7. The Hon’ble National Consumer Commission is very much consistent to ho 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 II (1996) CPJ 103 (NC)=1996 (2) CPR 26 (M/s. Quality Foils India Pvt. Ltd. v. Bank of Madura Ltd. & Anr.) a Five-Member Bench of the Commission headed by Justice V. Balakrishna Eradi, J. has observed that the jurisdiction of Fora has to be based on quantum of reliefs put together i.e. aggregate of value of goods and compensation. 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.

8. Needless to say, the jurisdiction means the authority of a Court/Forum to ad 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.

9. In the case of Ambrish Kumar Shukla & Ors. v. Ferrous Infrastructure Pvt. Ltd. reported in I (2017) CPJ 1 (NC) 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 ....”.

10. Therefore, it is palpably clear that it is the value of the goods or services an claimed which determines the pecuniary jurisdiction of the Consumer Forum. The District Forum enjoys a pecuniary jurisdiction not exceeding Rs.20 lakhs. The Ld. District Forum without examining whether it has got pecuniary jurisdiction to entertain the complaint, disposed of the same against the legislative mandate as contained in Section 11(1) of the Act.

11. The materials on record also goes to show that the appellants/complain Rs.4,80,000/- in total to the respondents and an amount of Rs.15,078/- towards service tax. The respondents have refunded the same by cheques and the complainants accepted the same. In such a situation, the Ld. District Forum should have taken into consideration the decision of the Hon’ble National Consumer Commission reported in 2013 (1) CPR 536 (NC) (M/s. Vijay Stationers v. Divisional Manager, United India Insurance Co. Ltd.) where it has been observed that where an intending purchase received the amount unconditionally from the developer, he ceases to be a ‘consumer’ as per provision of the Act and the privity of contract of ‘consumer’ and ‘service provider’ between the parties came to an end the moment the intending buyer accepted the amount unconditionally.

12. Since, I do not find any reflection of the above observation in the body o think it is a fit case for remand for decision afresh as to whether – (1) the District Forum has pecuniary jurisdiction to entertain the complaint and (2) after acceptance of the advance

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amount whether the appellants/complainants can be categorised as ‘consumer’. 13. For the reasons aforesaid, the appeal is allowed on contest. There will order as to costs. 14. The impugned order is hereby set aside. 15. The case is remitted back on remand with a direction upon the parties to ap Ld. District Forum on 21.09.2017 and on that date the Ld. District Forum will fix a date for final hearing of the case and will proceed to dispose of the same in accordance with law. I make it clear that the observations made in this appeal are tentative for the purpose of disposal of the appeal and the Ld. District Forum should not be influenced by it. 16. The Registrar of this Commission is directed to send a copy of this order to Consumer Disputes Redressal Forum, Kolkata, Unit-III for information. Appeal allowed.
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