State Consumer Disputes Redressal Commission
M/S. Radha Krishna Traders vs Sri Ramprasad Mallick on 5 February, 2019
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/639/2016 ( Date of Filing : 19 Jul 2016 ) (Arisen out of Order Dated 20/06/2016 in Case No. CC/636/2013 of District North 24 Parganas) 1. M/s. Radha Krishna Traders Regd. office at 60, Pioneer Park, Helabattala, P.S. Barasat, Dist. North 24 Pgs., rep. by its Developer, Sri Debaprasad Ghosh. 2. Sri Pritish Bhattacharya S/o Lt. Thakur Das Bhattacharya, Pioneer Park, P.O. & P.S. - Barasat, Dist. North 24 Pgs. 3. Sri Ratish Bhattacharya S/o Lt. Thakur Das Bhattacharya, Pioneer Park, P.O. & P.S. - Barasat, Dist. North 24 Pgs. 4. Smt. Shibani Bhattacharya W/o Lt. Bishnu Bhattacharya, Pioneer Park, P.O. & P.S. - Barasat, Dist. North 24 Pgs. 5. Sri Amit Bhattacharya S/o Lt. Bishnu Bhattacharya, Pioneer Park, P.O. & P.S. - Barasat, Dist. North 24 Pgs. 6. Sri Rajat Bhattacharya S/o Lt. Bishnu Bhattacharya, Pioneer Park, P.O. & P.S. - Barasat, Dist. North 24 Pgs. 7. Sri Ratan Bhattacharya Pioneer Park, P.O. & P.S. - Barasat, Dist. North 24 Pgs. 8. Sri Debal Kumar Bhattacharya S/o Lt. Debdas Bhattacharya, 17/1/A, Shayama Charan Mitra Lane, Baranagar, Kol-36. 9. Smt. Ashima Chowdhury D/o Lt. Debdas Bhattacharya, W/o Prabir Chowdhury, 26, Nabapally, P.O. & P.S. - Belgharia, Kolkata - 700 056. ...........Appellant(s) Versus 1. Sri Ramprasad Mallick S/o Lt. Meghnath Mallick, Vill. - Munsibagan, P.O. & P.S. - Basirhat, Dist. North 24 Pgs., Pin-743 411. 2. Smt. Ruma Mallick W/o Sri Ramprasad Mallick, Vill. - Munsibagan, P.O. & P.S. - Basirhat, Dist. North 24 Pgs., Pin- 743 411. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Appellant: Mr. Tarunjyoti Banerjee, Advocate For the Respondent: Mr. Ayan Roy Chowdhury, Advocate Mr. Ayan Roy Chowdhury, Advocate Dated : 05 Feb 2019 Final Order / Judgement
The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is at the behest of Opposite Parties to impeach the Judgement/Final Order dated 20.06.2016 passed by the District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat (in short, Ld. District Forum) in Consumer Complaint No. 636/2013. By the impugned order, the Ld. District Forum allowed the complaint lodged by the Respondents with a direction upon them to pay the balance amount within one month and on receipt of the same, the developer will deliver possession of the flat and execute the Sale Deed. It has further been directed that if the developer fails to deliver possession within one month from the date of order, they have to refund Rs.7,50,000/- along with 20% p.a. as interest thereon to the complainants/respondents till payment, to pay compensation of Rs.30,000/- and Rs.10,000/- as litigation cost to be paid within one month from the date of order in default, OP shall have to pay Rs.100/- per day as punitive damages till its realisation.
The Respondents herein being Complainants lodged the complaint before the Ld. District Forum asserting that on 10.06.2010 they entered into an Agreement for Sale with the OPs to purchase of a self-contained flat measuring about 1014 sq. ft. super built up area being Flat No.A on the 3rd floor in a building christened 'Trinayanee Apartment' lying and situated at Holding No.2430, Noapara, P.S.- Barasat, Dist- North 24 Parganas within the local limits of Ward No.10 of Barasat Municipality at a total consideration of Rs.14,19,600/-. The complainants have stated that they have paid a sum of Rs. 7,50,000/- as part consideration amount towards the said total consideration amount. But OP No.1/developer was found indifferent to complete the construction work and to handover the flat after receipt of balance consideration amount. In this regard, all the requests and persuasions including the legal notice dated 03.10.2013 went in vain. Hence, the respondents approached the Ld. District Forum with prayer for following reliefs, viz. - (a) the OPs may be directed to complete the construction, to handover possession and to execute the Sale Deed within a short period; (b) to pay compensation of Rs.7,50,000/- only as principal along with interest thereon @ 20% p.a. till realisation.
The Appellant No. 1being OP No.1 by filing a written version has stated that the complaint is not maintainable as it is barred by limitation in accordance with Section 24A of the Act. The OP No.1 has also stated that there was no deficiency in services on the part of them and as such the complaint should be dismissed.
On evaluation of the evidence on record, the Ld. District Forum by the impugned order allowed the consumer complaint on contest with certain directions upon the Appellants as indicated above. To assail the said order, the opposite parties have come up in this Commission with the present appeal.
We have scrutinised the materials on record and considered the submission advanced by the Ld. Advocates appearing for the respective parties and scrutinised the materials on record.
Having heard the Ld. Advocates for the respective parties and on going through the materials on record, it would reveal that Respondent Nos.2 to 9 were the owners of a piece of land measuring about 11 cottahs 2 chittaks and 30 sq. ft. lying and situated at Holding No.2430, Noapara, P.S.- Barasat, Dist- North 24 Parganas within the local limits of Ward No.10 of Barasat Municipality. On 04.09.2010 they entered into a Development Agreement with appellant no.1/developer represented by Sri Debaprasad Ghosh for raising a construction over the said property. Accordingly, the developer obtained a sanctioned building plan from the Municipality to construct a G+3 storied building thereon. The landowners have also empowered the developer by executing a Power of Attorney.
Being emboldened with such power conferred upon him, the developer had entered into an Agreement for Sale with the respondents/complainants on 10.06.2014 to sell one flat measuring about 1014 sq. ft. super built up area being Flat No.A on the 3rd floor in a building christened 'Trinayanee Apartment' lying and situated at Holding No.2430, Noapara, P.S.- Barasat, Dist- North 24 Parganas within the local limits of Ward No.10 of Barasat Municipality at a total consideration of Rs.14,19,600/-. The fact remains that the respondents have already paid Rs.7,50,000/- as part consideration amount towards the said total consideration amount. As per terms of the Agreement, the developer was under obligation to handover the subject flat to the respondents within October, 2012.
Evidently, the developer has failed to keep his promise. Finding no other alternative, the respondents/complainants by a legal notice dated 03.10.2013 requested the developer either to get the Sale Deed registered in favour of the complainants or to return the entire amount along with interest and cost. The fact remains that the said legal notice could not change the complexion of the developer. Under compelling circumstances, the respondents had to approach the Ld. District Forum on 29.11.2013 for redressal of their grievances.
Mr. Tarun Jyoti Banerjee, Ld. Advocate for the Appellants has submitted that the Ld. District Forum has failed to consider that it had no pecuniary jurisdiction to try the case because the value of the flat as per agreement was to the tune of Rs.14,19,600/- and the complainants prayed for compensation of Rs.7,50,000/- and thereby the value exceeds the pecuniary limit of the Ld. District Forum. He has also submitted that the Ld. District Forum should have come to a conclusion that the respondents failed to perform their contractual obligations of making payment on wholly untenable grounds and the appellants were not entitled in law not to perform their part of contract and deny possession of flat to them.
Ld. Advocate for the Respondents, on the other hand, has contended that when the appellants did not raise the plea of pecuniary jurisdiction before the Ld. District Forum, at this appellate stage, such a submission is wholly untenable.
Now, we shall first consider as to whether the question of pecuniary jurisdiction can be adjudicated at this stage. On scrutiny of the written version of respondent no.1/OP No.1, only in Paragraph-16, it has been stated that the question of pecuniary jurisdiction being mixed question of fact and law, they will argue over the same at the time of hearing. however, I do not find any reflection in the order to that effect.
In a decision reported in I (2017) CPJ 1 [Ambrish Kr. Shukla & 21 Ors. - Vs. - Ferrous Infrastructure Pvt. Ltd.] the Larger Bench of Hon'ble National Commission has observed that it is value of the goods and compensation that would be the determining factor in assessing the pecuniary jurisdiction of a Forum constituted under the Act. In fact, nothing has been canvassed on behalf of OP No.1 before the Ld. District Forum in this regard. Considering the submission made by the Ld. Advocates for the parties it has to be seen whether the Ld. District Forum had jurisdiction to entertain the complaint or not. 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. Therefore, the submission of the Ld. Advocate for the appellants does not appear to have any force.
Now, it has to be considered whether the respondents/complainants failed to perform their contractual obligations in making payment of consideration amount. Undisputedly, the consideration amount of the subject flat was Rs.14,19,600/-. The respondents have paid Rs.7,50,000/- before the committed date of delivery of possession. The developer was under obligation to handover the possession within October, 2012. As the developer has failed to construct the building, the situation compelled the respondents to issue legal notice to the developer through their Advocate on 03.10.2013.
It may be pertinent to record that after the order passed by the Ld. District Forum immediately in compliance with the said order, the respondents deposited the balance amount of Rs.6,69,600/- in the District Forum through a demand draft. It indicates that respondents were always ready and willing to fulfil their part of obligations. On the contrary, the developer did not take proper steps to fulfil their part of obligations. In this regard, a Commissioner was appointed, who after inspection submitted a report before the Ld. District Forum. Form the said report, it appears that the subject flat was in incomplete condition and there were only 24 pillars and there was no boundary wall or any doors or windows. The said report clearly supports the allegation of respondents that the developer has not made the flat ready for delivery of possession. Therefore, the Ld. District Forum has rightly observed that there was deficiency in services on the part of appellants/opposite parties.
In that perspective, the Ld. District Forum has committed no error by allowing the petition of complaint and by directing the OPs/appellants to deliver possession and to execute the Deed of Conveyance on receipt of balance consideration amount. The Ld. District Forum was also justified in imposing compensation of Rs.30,000/- for causing harassment and mental agony of the respondents and also litigation cost of Rs.10,000/-.
However, the Ld. District Forum had no reason to direct the OPs to refund Rs.7,50,000/- along with an interest thereon @ 20% p.a. in case of failure to complete the construction and to deliver possession within one month from the date of order. In this regard, the decision referred by the Ld. Advocate for appellants reported in (2015) 1 SCC 429 [General Motors (India) Pvt. Ltd. - Vs. - Ashok Ramnik Lal Tolat & Anr.] appears to be relevant. In the said decision, it has been observed that when there is no averment in the complaint about the sufferings of punitive damages by other consumers nor was the appellant aware that any such claim is to be meet by it, no relief should be granted. It is the golden rule that fair procedure is the hallmark of natural justice. A person against whom an order to be passed must have notice of the claim which such affected person has to meet.
In view of the authority mentioned above, the Ld. District Forum should not have passed any order directing the appellants/OPs to refund Rs.7,50,000/- along with interest thereon @20% p.a. and also punitive damages of Rs.100/- per day simply for the reason that there was no averment or prayer in the petition of complaint to that effect.
For the reasons aforesaid, the impugned judgement/final order is modified only to the extent that the appellants/opposite parties shall have no obligation to refund Rs.7,50,000/- along with interest thereon @ 20% p.a. or punitive damages of Rs.100/- per day. However, the other part of the order is maintained.
With the above observations, the instant appeal stands disposed of.
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