w w w . L a w y e r S e r v i c e s . i n



The Manager, Lavanya Projects Pvt. Ltd. v/s Santanu Swapan Kumar Das & Others


Company & Directors' Information:- S KUMAR PROJECTS PRIVATE LIMITED [Active] CIN = U70101WB2009PTC134015

Company & Directors' Information:- LAVANYA PROJECTS PRIVATE LIMITED [Active] CIN = U70200WB2009PTC139196

    First Appeal No. 979 of 2015

    Decided On, 05 April 2017

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

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

    For the Appellant: Tarun Chakraborty, Advocate. For the Respondents: Rajesh Biswas, Sibaji Sankar Dhar, Advocates.



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 Opposite Party No.2/developer to impeach the Judgement/Final Order dated 06.08.2015 passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II (for short, Ld. District Forum) in Consumer Complaint no. 123/2015. By the impugned order, the Ld. District Forum allowed the complaint on contest with cost of Rs.5,000/- each lodged by the Respondent nos. 1 & 2 under Section 12 of the Act with the direction upon OP no.1 to refund Rs.25,000/- and Rs.24,200/- and Rs.5,000/- aggregating Rs.59,200/- and a direction upon the OP no.2/appellant to refund entire amount of Rs.1,80,025/- and to pay compensation of Rs.10,000/- to the complainants within one month and also to pay Rs.15,000/- each as penal damages for adopting unfair trade practice.

The Respondent nos.1 & 2 herein being Complainants lodged the complaint asserting that they entered into an Agreement for Sale with OP no.2 for purchasing of a flat measuring about 1150 sq. ft. being Flat No.2A in Block No.2, on the 2ndfloor and one car parking space on the ground floor at Lavanya Project, Rajarhat within the District – North 24 Parganas at a consideration of Rs.37,11,755/- of which the complainants have paid Rs.3,71,176/- as booking money and Rs.5,56,763/- on allotment. The complainants have stated that when the complainant no.1 with his father went to the office of OP no.2 in course of conversation, one Sri Suman Srimany, an employee of OP No.1 Company assured them to provide loan on priority basis. Accordingly, the complainants had applied for housing loan to OP no.1 and after fulfilling some necessary formalities, the loan was sanctioned on 14.09.2013 and the same was received by the complainants on 29.09.2013. When OP no.1 got ready to pay a sum of Rs.20,50,000/- the amount was decreased by Rs.6,33,783/-. Meanwhile OP no.2 served a notice upon the complainants asking them to pay a sum of Rs.25,98,229/-. The cheque amounting to Rs.20,50,000/- being less than the required sum, the complainants lost the idea of getting a sweet home. Ultimately, the OP no.2 did not accept the loan cheque and terminated the agreement and in the process, they have deducted Rs.1,80,025/- and also Rs.54,354/- as deduction of EMI and processing charge etc. Hence, the respondent nos. 1 & 2 approached the Ld. District Forum with prayer for refund of Rs.1,80,025, Rs.54,354/-, Rs.20,000/- as compensation and Rs.10,000/- as litigation cost.

The Respondent no. 3 being OP no. 1 by filing a written version has stated that the loan was sanctioned in favour of the complainant on 14.09.2013 at Dubai and the same was disbursed at Kolkata on 23.10.2013 only after submission of necessary documents by the complainants and Power of Attorney but as there was no sufficient work progress on the date of property inspection, the disbursement was processed on the basis of percentage of work progress and not as per the demand raised by the developer.

The Appellant i.e. OP no. 2 by filing a separate written version has admitted that the complainants went to their office to purchase a residential flat and signed the application form on 21.07.2013 and paid the booking amount on 23.07.2013. The OP no.2 has stated that as the agreed due amount has not paid either by the complainants or their financer (OP no.1) in time, the booking was cancelled and there was no negligence on the part of them.

After assessing the materials on record, the Ld. District Forum by the impugned final order allowed the complaint with certain directions upon the Appellant and Respondent no.3 as indicated above. The respondent no.3/OP no.1 has compiled with the order of the Ld. District Forum and paid the amount of Rs.59,200/- in favour of the respondent nos. 1 & 2/complainants. However, challenging the said order, OP no.2 has come up in this Commission with the present appeal.

Mr. Prabir Basu, Ld. Counsel for the appellant has drawn my attention to the contents of the petition of complaint, the impugned Judgement and all other relevant papers available with the record and submitted that the value of the subject flat was Rs.37,11,755/- and in accordance with the provisions of Section 11(1) of the Act, a District Forum has no jurisdiction to entertain a complaint where the value of the goods and compensation does not exceed Rs.20 lakhs. In support of his submission, the Ld. Counsel for the appellant has placed reliance to a decision of Larger Bench of Hon’ble National Consumer Commission reported in 2016 (4) CPR 83 (NC) (Ambrish Kumar Shukla & 21 Ors. – vs. – Ferrous Infrastructure Pvt. Ltd.).

Mr. Rajesh Biswas, Ld. Advocate for the respondent nos. 1 & 2, on the other hand, has contended that when the appellant himself cancelled the agreement unilaterally, it is his obligation to refund the money and when a claim has been made only for refund of money, the referred decision will not be applicable in the facts and circumstances of the case.

I have considered the submission advanced by the Ld. Advocates appearing for the Appellant and Respondent nos. 1 and 2 and also scrutinised the materials on record.

Admittedly, the respondent nos. 1 & 2 being intending purchasers entered into an Agreement for Sale with the appellant to purchase of a flat measuring about 1150 sq. ft. being Flat No.2A in Block No.2, on the 2ndfloor and one car parking space on the ground floor at Lavanya Project, Rajarhat within the District – North 24 Parganas at a consideration of Rs.37,11,755/- of which the complainants have paid Rs.3,71,176/- as booking money and Rs.5,56,763/- on allotment. Though the appellant tried to avoid to disclose their relation with Sri Suman Srimany but from the reply given on behalf of OP no.2/appellant against the questionnaire set forth by the complainants/respondent nos. 1 & 2, it has come to surface that the said Suman is one of the marketing executives of respondent no.3/OP no.1 with whom the respondent nos. 1 & 2 came to acquaintance in the office of the appellant. In fact, the said Suman insisted the respondent nos. 1 and his father Sri Swapan Das to obtain loan from them instead of finance through United Bank of India, Birati Branch.In any case being allured by the representation made by the said Sri Suman Srimany on behalf of respondent no.3 finance company, the respondent nos. 1 & 2 have made application for granting housing loan. After a prolonged enquiry, a loan of Rs.20,50,000/- was sanctioned but the said amount was not adequate as per desire of the appellant who claimed a sum of Rs.25,98,229/-. The cheque amounting to Rs.20,50,000/-, however, was returned by the appellant and ultimately, they cancelled/rescinded the agreement. In the process, the appellant deducted Rs.1,80,025/- only as per GTC although there was no provision of deduction in case of due non-payment as per schedule.

It is clear assertion of respondent no.3 finance company that at the time of inspection, the progress of construction was much less and as such the disbursement was processed on the basis of percentage of work progress. Though the appellant has claimed that the respondent nos. 1 & 2 has defaulted in payment of consideration money inspite of considerable progress but from the reply given on behalf of the appellant/OP no.2, it is evident that at the time of refusal of cheque, only foundation, floor and brick work was fully completed in Block-2. It simply signifies that the construction was under progress. The Ld. District Forum has rightly observed that the respondent no.1 was ready to pay a sum of Rs.20,50,000/- to the appellant but the amount was decreased by Rs.6,33,783/- from the sanctioned loan amount and at that time appellant served a notice claiming an amount of Rs.25,98,229/- but refused to receive the cheque of rs.20,50,00/- and unilaterally cancelled the agreement by violating the General Terms and Conditions of the Agreement. The following observation of the Ld. District Forum appears to be relevant –

'Last but not the least we want to ventilate what prevented the OP no.2 to receive the amount and if it would have received, complainant would have opportunity to take such step for collecting balance amount for depositing the same to buy the flat. But we have gathered purposely and with the intention OP no.2 cancelled the same for selling that flat including car parking space at higher rate and that has been done. When the flat has been sold at a higher rate to some other person, the OP no.2 has no authority to charge any penalty for any reason whatsoever when the agreement was cancelled by violating the terms and conditions of the Sale Agreement and for which OP no.2 shall have to refund the entire amount of Rs.1,80,025/- to the complainant along with compensation for harassing the complainant and for deceiving the complainant in such a manner along with such cost'. I do not find any reason to differ the view adopted by the Ld. District Forum because it is quite apparent that both the OP nos. 1 & 2 were in touch with each other and in dealing with the respondent nos. 1 & 2, both of them have adopted some unfair means to deprive the intending purchasers from getting a roof over their head and to deduct an amount already paid by them and further with a view to sell the flat at a higher price. Therefore, in all fairness, the appellant should have returned the entire amount without deduction of any part of payment made by the intending purchaser.

Now, we will discuss on the point of lack of pecuniary jurisdiction of the Ld. District Forum. Section 11(1) of the Act deals with the pecuniary jurisdiction of the Ld. District Forum. Section 11(1) of the Act provides – 'Subject to the other provisions of this Act, the District Forum shall have the jurisdiction to entertain the 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. It is well settled that the question of territorial and pecuniary jurisdiction has to be ascertained at the initial stage or in the nascent phase of the proceeding. In a decision reported in (2005) 7 SCC 791 (Harshad Chiman Lal Modi – vs. – D.L.F. Universal Ltd. & Anr.) the Hon’ble Apex Court has observed that the question of pecuniary jurisdiction or territorial jurisdiction has to be dealt with before the Court/Forum where the suit/complaint has been instituted and not in an appellate stage.

In the case of Ambrish Kumar Shukla & Ors. (supra) 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 ....'.

The referred decision has no manner of application in our case because the issue of pecuniary jurisdiction was not raised before the Ld. District Forum on the point. The written version of OP no.2/developer is silent to that effect. No argument was advanced by the OP no.2 before the Ld. District Forum. The appellant has also not filed the BNA of the Ld. District Forum in order to substantiate that this point has ever raised before the Ld. District Forum. Therefore, in view of the authority of the Hon’ble Apex Court as mentioned above in the case of Harshad Chiman Lal Modi (supra), the shortcoming of the complainants/respondent nos. 1 & 2 on the point of pecuniary jurisdiction cannot be entertained at this appellate stage.

After hearing the Ld. Advocates appearing for the parties, it appears to me that the Ld. District Forum was quite justified in directing both the OP nos. 1 & 2 to refund the amount as mentioned in the operative part of the order. The OP no.1/finance company has complied with the order and OP no.2/developer cannot absolve his responsibility to refund the amount of Rs.1,80,025/- and Rs.10,000/- aggregating Rs.1,90,025/- to the respondent nos. 1 & 2 and the claim of the respondent nos. 1 & 2 cannot be defeated on technical ground at this appellate stage.

However, the Ld. District Forum had no reason to impose penal damages of Rs.15,000/- each to the OP nos. 1 & 2 because in the petition of complaint, the complainants did not aver anything as to the unfair means adopted by the

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opposite parties and there is no prayer clause to that effect on unfair trade practice or penal damages. In a decision reported in (2015) 1 SCC 429 (General Motors (India) Pvt. Ltd. – vs. – Ashok Ramnik Lal Tolat & Anr.) the Hon’ble Apex Court has observed that though the avoid object behind the legislation of the act to protect the interest of the consumer and to achieve the object, a liberal construction has to be made by avoiding hyper technical approach yet fair procedure being hall mark of natural justice, no order or relief can be passed without giving an opportunity to the affected party in respect of such claim. Accordingly, that part of the order of imposition of penal damages of Rs.15,000/- each should be set aside. For the reasons aforesaid, the appeal is partly allowed only to the extent that the appellant shall have no obligation to pay penal damages of Rs.15,000/- but the appellant is directed to refund the entire amount of Rs.1,80,025/- and compensation of Rs.10,000/- aggregating Rs.1,90,025/- within 30 days from date, otherwise the amount shall carry an interest @ 9% p.a. from this date till its full realisation. The impugned Judgement/Final Order is hereby modified only to the extent as indicated above. There will be, however, no order as to costs in this appeal. The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II for information.
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