State Consumer Disputes Redressal Commission
M/S. Sri Shyam Developers vs Umesh Agarwal on 7 March, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. FA/1034/2013 (Arisen out of Order Dated 31/07/2013 in Case No. Complaint Case No. CC/94/2010 of District Burdwan) 1. M/s. Sri Shyam Developers A partnership firm, Chotonilpur, Itbhata Road, P.O. - Sripally, Dist. Burdwan, Pin - 713 101. ...........Appellant(s) Versus 1. Umesh Agarwal Vinodaram Garden Complex, Itbhata Road, Chotonilpur, Burdwan, Pin - 713 101. 2. Mr. Manik Lal Chakraborty Vinodaram Garden Complex, Itbhata Road, Chotonilpur, Burdwan, Pin - 713 101. 3. Kingshuk Burman Vinodaram Garden Complex, Itbhata Road, Chotonilpur, Burdwan, Pin - 713 101. 4. Ramanuj Chatterjee Vinodaram Garden Complex, Itbhata Road, Chotonilpur, Burdwan, Pin - 713 101. 5. Dipti Dutta Vinodaram Garden Complex, Itbhata Road, Chotonilpur, Burdwan, Pin - 713 101. 6. Ashish Kumar Mondal Vinodaram Garden Complex, Itbhata Road, Chotonilpur, Burdwan, Pin - 713 101. 7. Jharna Sengupta Vinodaram Garden Complex, Itbhata Road, Chotonilpur, Burdwan, Pin - 713 101. 8. Guru Prasad Tah Vinodaram Garden Complex, Itbhata Road, Chotonilpur, Burdwan, Pin - 713 101. 9. Anjana Saha Vinodaram Garden Complex, Itbhata Road, Chotonilpur, Burdwan, Pin - 713 101. 10. Tilak Dubey Vinodaram Garden Complex, Itbhata Road, Chotonilpur, Burdwan, Pin - 713 101. 11. Kumarjit Nayak Vinodaram Garden Complex, Itbhata Road, Chotonilpur, Burdwan, Pin - 713 101. 12. Mrs. Mousumi Nayak Vinodaram Garden Complex, Itbhata Road, Chotonilpur, Burdwan, Pin - 713 101. 13. Dilip Majumdar Vinodaram Garden Complex, Itbhata Road, Chotonilpur, Burdwan, Pin - 713 101. 14. Kabita Ghosh Vinodaram Garden Complex, Itbhata Road, Chotonilpur, Burdwan, Pin - 713 101. 15. Subrata Samanta Vinodaram Garden Complex, Itbhata Road, Chotonilpur, Burdwan, Pin - 713 101. 16. Sharmishtha Chakraborty Vinodaram Garden Complex, Itbhata Road, Chotonilpur, Burdwan, Pin - 713 101. 17. Amit Kumra Bose Vinodaram Garden Complex, Itbhata Road, Chotonilpur, Burdwan, Pin - 713 101. 18. Aloke Kumar Banerjee Vinodaram Garden Complex, Itbhata Road, Chotonilpur, Burdwan, Pin - 713 101. 19. Sulata Das Vinodaram Garden Complex, Itbhata Road, Chotonilpur, Burdwan, Pin - 713 101. 20. Aloke Mukherjee Vinodaram Garden Complex, Itbhata Road, Chotonilpur, Burdwan, Pin - 713 101. 21. Rahul Kundu Vinodaram Garden Complex, Itbhata Road, Chotonilpur, Burdwan, Pin - 713 101. 22. Alok Kumar Chowdhury Vinodaram Garden Complex, Itbhata Road, Chotonilpur, Burdwan, Pin - 713 101. 23. Shyamal Halder Vinodaram Garden Complex, Itbhata Road, Chotonilpur, Burdwan, Pin - 713 101. 24. Sudipa Ghosh Vinodaram Garden Complex, Itbhata Road, Chotonilpur, Burdwan, Pin - 713 101. 25. Sankar Sarkar Vinodaram Garden Complex, Itbhata Road, Chotonilpur, Burdwan, Pin - 713 101. 26. Anushree Ghoshal Vinodaram Garden Complex, Itbhata Road, Chotonilpur, Burdwan, Pin - 713 101. 27. Tripti Narayan Ghatak Vinodaram Garden Complex, Itbhata Road, Chotonilpur, Burdwan, Pin - 713 101. 28. Taruna Ghatak Vinodaram Garden Complex, Itbhata Road, Chotonilpur, Burdwan, Pin - 713 101. 29. Uday Sankar Chel Vinodaram Garden Complex, Itbhata Road, Chotonilpur, Burdwan, Pin - 713 101. 30. Soma Saha Vinodaram Garden Complex, Itbhata Road, Chotonilpur, Burdwan, Pin - 713 101. 31. P.K. Mukherjee Vinodaram Garden Complex, Itbhata Road, Chotonilpur, Burdwan, Pin - 713 101. 32. Dr. Snigdhendu Ghosh Vinodaram Garden Complex, Itbhata Road, Chotonilpur, Burdwan, Pin - 713 101. 33. Manas Bose Vinodaram Garden Complex, Itbhata Road, Chotonilpur, Burdwan, Pin - 713 101. 34. Ashoke Kumar Paul Vinodaram Garden Complex, Itbhata Road, Chotonilpur, Burdwan, Pin - 713 101. 35. Sumit Dutta Vinodaram Garden Complex, Itbhata Road, Chotonilpur, Burdwan, Pin - 713 101. 36. Nabanita Dutta Vinodaram Garden Complex, Itbhata Road, Chotonilpur, Burdwan, Pin - 713 101. 37. Bijan Kumar Chakraborty Vinodaram Garden Complex, Itbhata Road, Chotonilpur, Burdwan, Pin - 713 101. 38. Supriya Chakraborty Vinodaram Garden Complex, Itbhata Road, Chotonilpur, Burdwan, Pin - 713 101. 39. Dr. Anirban Mitra Vinodaram Garden Complex, Itbhata Road, Chotonilpur, Burdwan, Pin - 713 101. 40. Silchan Roy Chaudhury Vinodaram Garden Complex, Itbhata Road, Chotonilpur, Burdwan, Pin - 713 101. 41. Barada Kinkar Sen Vinodaram Garden Complex, Itbhata Road, Chotonilpur, Burdwan, Pin - 713 101. 42. Rama Sen Vinodaram Garden Complex, Itbhata Road, Chotonilpur, Burdwan, Pin - 713 101. 43. Sujit Roy Vinodaram Garden Complex, Itbhata Road, Chotonilpur, Burdwan, Pin - 713 101. 44. Mithu Bhowmik Vinodaram Garden Complex, Itbhata Road, Chotonilpur, Burdwan, Pin - 713 101. 45. Smt. Belarani Chowdhury W/o Late Dwijendra Chandra Chowdhury, Chotonilpur, Itbhata Road, P.O. - Sripally, Dist. Burdwan, Pin - 713 101. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Appellant: Mr. Subhasis Jana Mr. Sanat Sil, Advocate For the Respondent: Mr. Abu Sayem, Advocate Mr. Abu Sayem, Advocate Mr. Abu Sayem, Advocate Mr. Abu Sayem, Advocate Dated : 07 Mar 2017 Final Order / Judgement
Date of Filing - 20.09.2013 Date of Hearing - 23.02.2017 The assail in this appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is to the Judgement/Final Order dated 31.07.2013 made by the Ld. District Consumer Disputes Redressal Forum, Burdwan (for short, Ld. District Forum) in Consumer Complaint no.94/2010 whereby the consumer complaint initiated by the Respondent nos.1 to 44/purchasers under Section 12 of the Act was allowed on contest in part against the Appellant and dismissed on contest against Respondent no.45/Landowner with certain directions like - (a) to pay a sum of Rs.2,000/- to each of the flat owners in whose name the Deed of Conveyance has been executed and registered; (b) to pay litigation cost of Rs.10,000/- in total to the all the flat owners/Complainants; (c) to pay a sum of Rs.10,000/- to the State Consumer Welfare Fund for adoption of unfair trade practice etc. The Respondent nos.1 to 44 herein being Complainants lodged the complaint asserting that they had entered into an agreement with the OP no.1/developer to purchase their respective flats lying and situated at Brindavan Gardens Complex, Itbhata Road, Chotonilpur, P.O.- Sripally, P.S. & Dist- Burdwan. As per Agreement, the Complainants have paid the entire consideration money to the OP no.1 and the possession of the respective flats of the Complainants have already given by the OPs. However, after taking possession, the Complainants have noticed several defects in the construction of the flat and not constructing the flat as per brochure, particularly not providing - (a) Swimming Pool; (b) jogging track; (c) health club and (d) temple. Due to such deficiency, the Complainants approached the developer time and again and lastly on 11.09.2009 when a meeting between the association of the flat owners and OP no.1 were held but the OP no.1 till date did not take any step to complete the incomplete job. Hence, the Complainants approached the Ld. District Forum with prayer for certain reliefs, viz - (a) to direct the OP no.1 to complete the unfinished works of the parking space of the complex and installing the lift facility of the Block- C & D; (b) for providing the facility of Swimming Pool, Jogging Track, Health Club, Temple as per brochure; (c) for providing intercom facility; (d) for providing compensation of Rs.42,000/- each aggregating Rs.18,48,000/- and Rs.20,000/- as litigation costs.
The Appellant being OP no.1 by filing a written version has stated that the case is not maintainable in its present form and it is barred by limitation. The OP no.1 has specifically stated that out of 56 flat owners, only 46 of them have filed the complaints without impleading the other flat owners and as such it is not maintainable. The OP no.1 has a specifically stated that the flats in question have already handed over to the Complainants of the case as per terms of the agreement in the year 2008- 2009 and as such the complaint should be dismissed.
After evaluation of the materials on record, the Ld. District Forum by the impugned order allowed the complaint with certain directions upon the OPs as indicated above, which prompted the OP no.1/developer to prefer this appeal.
I have heard the Ld. Advocate for the Appellant as well as Respondent nos. 1 to 6 and 8 to 44. I have also 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 the Respondent no.45 being landowner of a piece of land measuring about 1 bigha, 13 cottahs and 5 chitaks of land at Itbhata Road, Chotonilpur, P.O.- Sripally, P.S. & Dist- Burdwan entered into an agreement with the Appellant for Development of the said property by constructing residential complex comprised in 4 blocks namely A, B, C & D having several flats. The Appellant/developer floated an advertisement to attract the buyers to purchase of individual flats in the said property. The Respondent nos. 1 to 44 and 12 others buyers totalling 56 in numbers had entered into an agreement and purchased their respective flats over the said complex being Brindavan Garden Complex. The total 56 flats in the complex in 4 blocks comprised of -16 flats each in Block-A & B (in G+4 storied building) and 12 flats each in Block-C & D (in G+3 storied building).
The record reveals that out of 56 flat owners, 44 flat owners jointly filed the petition of complaint and in doing so they have not shown the value of the flats purchased by them. In the prayer portion, the Complainants have simply prayed for compensation of Rs.42,000/- each aggregating of Rs.18,48,000/- just to bring the jurisdiction of the Ld. District Forum. It is not clear how the Complainants have assessed the compensation of Rs.42,000/- each per flat. The Complainants have not filed the complaint in a representative manner as required under Section 12(1)(c) of the Act. In Paragraph-8 of the petition of complaint, the Respondent nos. 1 to 44 have simply mentioned that the Ld. District Forum has the jurisdiction both territorial and pecuniary to adjudicate the complaint but they have not taken any initiative to mention the value of the complaint within the four corner of the petition of complaint.
Now, I shall consider whether the Ld. District Forum had pecuniary jurisdiction to entertain the same or not. For understanding the situation, it would be worthwhile to reproduce the provisions of Section 11(1) of the Act, which provides -
"Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and compensation, if any, claimed does not exceed rupees twenty lakhs".
Ld. Counsel appearing for the Appellant referring a decision of Three Member Bench of Hon'ble National Consumer Commission reported in 1 (2017) CPJ 1 (Ambrish Kumar Shukla & 21 Ors. -vs. - Ferrous Infrastructure Pvt. Ltd.) has submitted that it is the value of the flats and compensation should have been taken into consideration in assessing the valuation of the property and when the value of the subject flats is more than a crore, the Ld. District Forum had no jurisdiction to entertain the same and as such the impugned order should be set aside.
The question came for consideration before the Larger Bench of Hon'ble National Consumer Commission in the case of Ambrish Kumar Shukla & 21 Ors. (supra) on a reference by a two Member Bench of the Commission. In answering the question, the Larger Bench by its order dated 07.10.2016 has observed that it is the value of goods or services, as the case may be, not the value or costs of removing the deficiencies in the service which is to be considered for the purpose of determining the pecuniary jurisdiction.
Therefore, keeping in view the provisions of Section 11(1) of the Act and the authority as quoted above, I find that the Ld. District Forum has committed material irregularity by excluding the value of the flat in treating the valuation of the property. Admittedly, the Ld. District Forum does not possess any authority to entertain a complaint above Rs.20 lakhs and as such the Ld. District Forum lacks inherent jurisdiction in entertaining the instant complaint.
The Hon'ble National Consumer Commission is consistent to the view that total value of the goods and/or services as well as that of compensation should determine the pecuniary limit of jurisdiction of Consumer Fora. In 1996 (2) CPR 26 (M/s. Quality Foils India Pvt. Ltd. - vs. - Bank of Madura Ltd. & Anr.) a Five Member Bench of the Commission has also observed thus.
The provisions of law and the authorities referred above makes it quite clear that 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.
The Respondent nos. 1 to 44 have claimed compensation of Rs.42,000/- each i.e. total Rs.19,32,000/- but they have not shown the value of the goods i.e. flats owned by them. The Respondent nos. 1 to 44 have mentioned the amount of compensation of Rs.19,32,000/- in order to bring the jurisdiction of the Ld. District Forum.
In view of the above, when it is quite apparent that the Ld. District Forum had no pecuniary jurisdiction to entertain the complaint and further nowhere in the petition of the complaint, the Complainants have prayed for any leave to lodge the complaint in a representative manner as defined in Section 12(1)(c) of the Act, the Ld. District Forum should have dismissed the complaint on that score alone.
After giving due consideration to the submission advanced by the Ld. Advocates appearing for the parties, I am of the view that the appeal should be allowed simply on the ground that the Ld. District Forum had no pecuniary jurisdiction as embodied in Section 11(1) of the Act and further the Respondent nos. 1 to 44 did not obtain permission of the Ld. District Forum on behalf of or for the benefit of all the 56 flat owners of Vrindavan Garden Complex in accordance with the provisions of Section 12(1)(c) of the Act.
For the reasons aforesaid, the appeal is allowed on contest but without any order as to costs.
The impugned Judgement/Final Order is hereby set aside.
Consequently ,CC/94/2010 stands dismissed being not maintainable.
However, this does not debar the flat owners/consumers to approach the appropriate Court or Forum in accordance with law after removal of the defects as mentioned above and in the process, they may seek assistance of the decision of Hon'ble Supreme Court reported in (1995) 3 SCC 583 (Laxmi Engineering Works - vs. - P.S.G. Industrial Institute) to overcome the hurdle of limitation.
The Registrar of the Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Burdwan for information. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER