State Consumer Disputes Redressal Commission
Sri Kishore Kumar Dutta vs M/S. Joy Mata Di Construction on 8 June, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/1202/2014 (Arisen out of Order Dated 24/09/2014 in Case No. CC/382/2013 of District North 24 Parganas) 1. Sri Kishore Kumar Dutta S/o Late Kiron Chandra Dutta, Karnafuli Apartment, Flat No.A, 2nd Floor, 21, Nalta Mahajati Road, P.O. & P.S. - Dum Dum, Kolkata - 700 028. 2. Smt. Shyamali Sikder W/o Late Dipankar Sikdar, Karnafuli Apartment, Flat No.D, 2nd Floor, 21, Nalta Mahajati Road, P.O. & P.S. - Dum Dum, Kolkata - 700 028. 3. Subhankar Sikder S/o Late Dipankar Sikdar, Karnafuli Apartment, Flat No.D, 2nd Floor, 21, Nalta Mahajati Road, P.O. & P.S. - Dum Dum, Kolkata - 700 028. ...........Appellant(s) Versus 1. M/s. Joy Mata Di Construction A partnership firm, 85/1, Subhashnagar Road, Kolkata -700 065. 2. Sri Pradip Kumar Biswas, partner of M/s Joy Mata Di Construction S/o Lt. Dr. Sibapada Biswas, 61, Rishi Bankim Chandra Road(Extension), Dum Dum Cantonment, P.O. & P.S. - Dum Dum, Kolkata-700 028. 3. Smt. Soma Bose, partner of M/s. Joy Mata Di Construction W/o Sri Indrajit Bose, 29B, Mukunda Das Road, Kolkata -700 065. 4. Smt. Durga Saha, partner of M/s. Joy Mata Di Construction W/o Sri Abhijit Saha, 85/1, Subhashnagar Road, Kolkata - 700 065. 5. Sri Swarnendu Kanungo S/o Lt. Satish Chandra Kanungo, 52, Mahajati Road Bye Lane, P.O. & P.S. - Dum Dum, Kolkata - 700 028. 6. Sri Ajoy Kumar Biswas S/o Lt. Tarapada Biswas, Karnafuli Apartment, Flat No.B, 2nd Floor, 21, Nalta Mahajati Road, P.O. & P.S. - Dum Dum, Kolkata - 700 028. 7. Smt. Indrani Halder W/o N.Halder, Karnafuli Apartment, 2nd Floor, 21, Nalta Mahajati Road, P.O. & P.S. - Dum Dum, Kolkata - 700 028. 8. Sri Sanjib Kumar Saha S/o Sri Hari Saha, Karnafuli Apartment, Flat No.A, Gr. Floor, 21, Nalta Mahajati Road, P.O. & P.S. - Dum Dum, Kolkata - 700 028. 9. Sri Harish Ranjan Das S/o Lt. Manish Ranjan Das, Karnafuli Apartment, Flat No.B, 2nd Floor, 21, Nalta Mahajati Road, P.O. & P.S. - Dum Dum, Kolkata - 700 028. 10. Sri Biswadeep Das S/o Lt. Manish Ranjan Das, Karnafuli Apartment, Flat No.B, 2nd Floor, 21, Nalta Mahajati Road, P.O. & P.S. - Dum Dum, Kolkata - 700 028. 11. Sri Pankaj Chakraborty S/o Lt. Anil Chakraborty, Karnafuli Apartment, Flat No.A, 1st Floor, 21, Nalta Mahajati Road, P.O. & P.S. - Dum Dum, Kolkata - 700 028. 12. Smt. Nandita Mondal W/o Sri Biman Mondal, Karnafuli Apartment, Flat No.D, 4th Floor, 21, Nalta Mahajati Road, P.O. & P.S. - Dum Dum, Kolkata - 700 028. 13. Sri Amit Kumar Bhattacharjee S/o Lt. Gurudas Bhattacharjee, Karnafuli Apartment, Flat No.D, 4th Floor, 21, Nalta Mahajati Road, P.O. & P.S. - Dum Dum, Kolkata - 700 028. 14. Sri Gour Paul S/o Sri Narayan Paul, Karnafuli Apartment, Flat No.B, Gr. Floor, 21, Nalta Mahajati Road, P.O. & P.S. - Dum Dum, Kolkata - 700 028. 15. Smt. Mukti Podder W/o Lt. Amal Kumar Podder, Karnafuli Apartment, Flat No.E, 3rd Floor, 21, Nalta Mahajati Road, P.O. & P.S. - Dum Dum, Kolkata - 700 028. 16. Smt. Dipu Roy W/o Tapan Kumar Roy, Karnafuli Apartment, Flat No.B, 3rd Floor, 21, Nalta Mahajati Road, P.O. & P.S. - Dum Dum, Kolkata - 700 028. 17. Sri Amit Kumar Saha S/o Sunil Kumar Saha, Karnafuli Apartment, Flat No.F, 1st Floor, 21, Nalta Mahajati Road, P.O. & P.S. - Dum Dum, Kolkata - 700 028. 18. Smt. Suniti Mitra S/o Pradip Kumar Mitra, Karnafuli Apartment, Flat No.C, 4th Floor, 21, Nalta Mahajati Road, P.O. & P.S. - Dum Dum, Kolkata - 700 028. 19. Smt. Bithika Saha W/o Sri Manick Saha, Karnafuli Apartment, Flat No.A, 4th Floor, 21, Nalta Mahajati Road, P.O. & P.S. - Dum Dum, Kolkata - 700 028. 20. Smt. Rekha Chakraborty W/o Sri Sudhir Chakraborty, Karnafuli Apartment, Flat No.D, 3rd Floor, 21, Nalta Mahajati Road, P.O. & P.S. - Dum Dum, Kolkata - 700 028. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Appellant: Mr. Biswajit Poddar Mr. Tapan Kr. Biswas , Advocate For the Respondent: Ms. Mithu Bhattercherjee, Advocate Dated : 08 Jun 2017 Final Order / Judgement
Date of Filing - 20.10.2014 Date of Hearing - 19.05.2017 The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is at the behest of the Complainant No.1 and Complainant Nos. 7(a) & 7(b) to impeach the Judgement/Final Order dated 24.09.2014 passed by the Ld. District Consumer Disputes Redressal Forum, Noth 24 Parganas at Barasat (for short, Ld. District Forum) in Consumer Complaint no. 382/2013 whereby the consumer complaint initiated by the Appellants and Respondent Nos. 3 to 6 under Section 12 of the Act was dismissed on contest against all the Opposite Parties without any order of costs.
The Appellants and Respondent Nos. 3 to 16 herein being Complainants lodged the complaint asserting that they had entered into their respective Agreement for Sale with OP No.1/developer and ultimately the OP No.1 executed the Deed of Conveyances in favour of the Complainants and handed over the possession to them but without completion of all common amenities and facilities and without delivery the Completion Certificate. Therefore, the purchasers of Krnafuli Apartment situated at Premises No.21 of Nalta Mahajati Road, P.S.- Dum Dum, Kolkata - 700028, Dist - North 24 Parganas approached the Ld. District Forum with prayer for certain reliefs like - (a) to direct the opposite parties to construct and hand over all common amenities including lift, top roof, common meter, underground water reservoir; (b) to direct the OPs to handover completion certificate; (c) to direct the OPs to pay compensation to the Complainants to the tune of Rs.2,00,000/- each; (d) litigation cost etc. The Respondent nos.1(a) and 1(b) being OP nos. 1(a) & 1(b) by filing a written version have stated that the complaint is not maintainable and it has further been stated that the Complainants are enjoying the water reservoir, lift, electric meter, rain water pipe, drains, sewerage and all other amenities.
The Respondent no.1(c) i.e. OP No.1(c) by filing a separate written version has stated that in the apartment, there are altogether 28 flats and all the flats have been transferred to the intending purchasers and as such the complaint should be dismissed.
After assessing the materials on record, the Ld. District Forum by the impugned judgement/final order dismissed the complaint with an observation that the opposite parties were not at all deficient or negligent. To assail the said order, the Complainant No. 1 & Complainant Nos. 7(a) & 7(b) have come up in this Commission with the present appeal.
Ld. Counsel appearing for the Appellants has submitted that the impugned judgement is self-contradictory and the Ld. District Forum did not consider the report submitted by the Ld. Commissioner appointed in the case and dismissed the complaint without any cogent reason and as such the impugned order should be set aside and a favourable order is required to be passed to protect the complainants who are 'consumers' as defined in Section 2(1)(d) of the Act.
Mr. Barun Prasad, Ld. Advocate appearing for the developer, on the other hand, has contended that out of 28 flat owners, only 16 flat owners have filed the complaint before the Ld. District Forum and in doing so, the valuation of the property has not been mentioned and therefore, if the value of all the 16 flats are taken together, certainly it would exceed Rs.20,00,000/- and as such the Ld. District Forum should have dismissed the complaint being not maintainable. He has further submitted that the complainants did not obtain permission from the Ld. District Forum prior to lodging complaint under Section 12(1)(c) of the Act and as such on that ground also, the complaint should have been dismissed. In support of his contention, Ld. Advocate for the developer has drawn my attention to two decisions of the Hon'ble National Consumer Commission reported in (1) 2016 (4) CPR 83 (Ambrish Kumar Shukla & Ors. - vs. - Ferrous Infrastructure Pvt. Ltd.) and (2) 2016 (4) CPR 692 (Sanjay Kumar Baranwal & Ors. - Vs. - Selene Constructions Ltd.).
Ld. Advocate appearing for the landowner supporting the submission of Ld. Advocate for the developer has submitted that the Ld. District Forum has rightly dismissed the complaint and therefore, the impugned order should not be interfered with.
I have considered the rival contention of the respective Ld. Advocates and also scrutinised the materials on record.
The materials on record goes to show that the Respondent no. 2 was the owner in respect of a piece of land lying and situated at Premises No.21, Nalta Mahajati Road, P.S.- Dum Dum, Kolkata - 700028, Dist - North 24 Parganas within the local limits of Dum Dum Municipality. The Respondent No.1 is a construction firm of which respondent nos. 1(a), 1(b) & 1(c) are the partners. The developer has constructed an apartment named Karnafuli Apartment over the said property. The appellants and respondent nos. 3 to 16 have purchased their respective flats from the developer. After such purchase and taking possession, they have made several allegations against the developer and land owner with the allegation of deficiency in services in respect of common facilities and amenities. Admittedly, there are 28 flats and out of those 28 flat owners, only 16 flat owners have filed the complaint leaving the other 12 flat owners, who are either satisfied or not interested to lodge complaint against the developer or the land owner.
As this complaint has been filed by more than one consumer, Section 12(1)(c) of the Act comes into play which reads as under:-
"Manner in which complaint shall be made.
A complaint in relation any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided may be filed with a District Forum by -
.......
........
One or more consumers, where there are numerous consumers having the same interest, with the permission of the District Forum, on behalf of or for the benefit of, all consumers so interested".
Admittedly, 28 persons purchased the flat from the developer and 16 of them have filed this complaint. This indicates that other flat owners are either satisfied with the construction made by the developer or not interested to lodge complaint. In any case, perusal of prayer clause would show that the relief has not been claimed for other similarly placed persons. The interpretation and scope of Section 12(1)(c) of the Act was the subject matter of adjudication before Three-Member Bench of the Hon'ble National Consumer Commission reported in 2016 (4) CPR 83 (Ambrish Kumar Shukla & 21 Ors. - vs. - Ferrous Infrastructure Pvt. Ltd.). While dealing with the scope of Section 12(1)(c) of the Act, the Hon'ble Commission has observed thus -
"The primary object behind permitting a class action such as a complaint under Section 12(1)(c) of the Consumer Protection Act being to facilitate the decision of a consumer dispute in which a large number of consumers are interested, without recourse to each of them filing an individual complaint, it is necessary that such a complaint is filed on behalf or for the benefit of all the persons having such a community of interest. A complaint on behalf of only some of them, therefore, will not be maintainable. If for instance, 100 flat buyers/plot buyers in a project have a common grievance against the Builder/Developer and a complaint under Section 12(1)(c) of the Consumer Protection Act is filed on behalf of or for the benefit of say 10 of them, the primary purpose behind permitting a class action will not be achieved, since the remaining 90 agreed persons will be compelled either to file individual complaint or to file complaints on behalf of or for the benefit of the different group of purchasers in the same project. This, in our view, could not have the legislative intent. The term 'persons interested' and 'persons having the same interest' used in Section 12(1)(c) means the persons having a common grievance against the same service provider. The use of the words 'all consumers so interested' and 'on behalf of or for the benefit of all consumers so interested', in Section 12(1)(c) leaves no doubt that such a complaint must necessarily be filed on behalf of or for the benefit of all the persons having a common grievance, seeking common relief and consequently having community of interest against the said service provider".
Now, on perusal of the copy of petition of complaint, I do not find any averment made by the complainants with regard to value of the property. In a decision reported in 1996 (2) CPR 26 (M/s. Quality Foils India Pvt. Ltd. - Vs.- Bank of Madura Ltd. & Anr.) a Five Member Bench of the Hon'ble National Commission has observed that the total value of goods and/or services as well as that of compensation would determine the pecuniary limit of jurisdiction of Consumer Fora.
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.
After giving due consideration to the submission advanced by the Ld. Advocates appearing for the parties, though I am satisfied with the argument advanced by the Ld. Advocate for the appellants that the point as to pecuniary jurisdiction cannot be raised in the appellate stage, but when out of 28 flat owners, 16 flat owners have lodged the complaint before the Ld. District Forum and in filing the same, no permission was obtained, it offends the specific provision of Section 12(1)(c) of the Act. Therefore, on that ground alone, the appeal deserves dismissal.
Consequently, the appeal is dismissed on contest. There will be, however, no order as to costs.
The Judgement/Final Order dated 24.09.2014 passed by the Ld. District Forum in CC/382/2013 is here by affirmed.
The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat for information. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER