State Consumer Disputes Redressal Commission
Sri Kashinath Jaiswal vs Sri Swapan Kumar Mukherjee & Ors. on 29 April, 2014
D R A F T
State Consumer Disputes Redressal
Commission
West Bengal
11A, Mirza Ghalib Street, Kolkata - 700087
S.C. CASE NO.
: FA/651/2012
(Arising out
of order dated 23.08.2012 of Consumer Case No. 11/2010 of D.C.D.R.F., Howrah)
Date of Filing : 24.09.2012 Date
of Final Order : 29.04.2014
APPELLANTS/COMPLAINANTS :
Sri Kashinath Jaiswal,
Son of Late Laxminath
Jaiswal,
Proprietor of M/s. Maa
Construction,
residing at 17, Dr. P. K.
Banerjee
Road, Post Office and
District Howrah.
RESPONDENTS/O.P.S :
1. Sri Swapan Kumar Mukherjee,
Son of Late Biswanath Mukherjee.
2. Sri Arijit Das,
Son of Sri Kali Charan Das.
3. Sri Biswanath Mukherjee,
Son of Late Brojo Gopal Mukherjee,
All residing at 42/5, Swami
Vivekananda
Road, P.S. Shibpur, Howrah 1.
District Howrah.
4. Sri Kaushik Dutta,
Son of Late Shibnath Dutta,
residing at 42/5, Swami Vivekananda
Road, P.S. Shibpur, Howrah
1,
District Howrah
and also at
Flat 1-B, 17, Palit Street,
Kolkata 700 019.
5. Sri Simanta Dutta,
Son of Sri Prasanta Kumar Dutta,
residing at 42/5, Swami Vivekananda
Road, P.S. Shibpur, Howrah
1,
District Howrah
BEFORE : HONBLE JUSTICE : Mr. Kalidas
Mukherjee,
President.
MEMBER : Mrs. Mridula Roy.
MEMBER : Mr. Tarapada Gangopadhyay.
FOR THE PETITIONER /
APPELLANT : Mr. Rajarshi Dutta,
Ld. Advocate.
FOR THE RESPONDENT / O.P.S. : Mr. Pusan Sinha,
Ld. Advocate.
: O R D E R :
MRIDULA ROY, MEMBER.
The instant appeal is directed against the judgement and order dated 23.08.2012 passed by Ld. District Forum, Howrah in Complaint Case No. HDEF 11 of 2010 allowing the same on contest with cost against the O.P. No. 1 Kashinath Jaiswal dismissing the same on contest without cost against the O.P. No. 2 and dismissing the same ex parte without cost against the O.P. No. 3, directing the O.P. No. 1 to complete all unfinished works as mentioned in paragraph 7 of the complaint namely to construct boundary wall surrounding the entire property for demarcation and protection, to protect the electric meter with lock and key, to make lighting in the common areas of the building.
Being aggrieved and dissatisfied with the order the O.P. No. 1 preferred the instant appeal on the grounds, inter alia, that the Ld. District Forum did not consider the issues that there are no such stipulation the Agreement for sale or in the sale deed that there should be any glass cover in the stair window and the common passage for egress and ingress upon the main gate should be pucca and there should be a lane in the northern side. Moreover, the said passage is common to other apartment owners so that construction of boundary wall will create problem to their easement right mentioning the report of the Advocate Commissioner in support of this averment. Further, the Appellant has arranged for adequate water supply to the apartment owners, covered space for meter box. Further, the Ld. District Forum did not consider the Commissioners report in its true and proper perspective.
The case of the Complainants (Respondent Nos. 1, 2 & 3 herein) in brief, is that they are owners of three residential flats situated at Municipal Holding No. 42/5, Swami Vivekananda Road, P.S. Shibpur, District Howrah. The Complainants entered into Agreement for Sale with the O.Ps i.e. the O.P. NO. 1 being the developer and the O.P. Nos. 2 & 3 being the landowners under certain terms and conditions.
Subsequently, the respective flats were transferred to the respective purchasers i.e. the Complainants by executing respective registered Sale Deeds. The Complainants alleged that it was stated in third schedule of the Sale Deeds that they have common roof right but the O.P. Nos. 2 & 3 did not allow any one to use the roof. It is the further allegation of the Complainants that the O.P. developer did not complete the building properly and left some incomplete works such as to erect boundary wall, to protect the meter box, lighting the common areas of the building and surroundings, to protect the stair by installing glass windows, to complete the passage for ingress and egress upon main gate, to ensure adequate supply of water and to obtain building completion certificate.
Accordingly, the Complainants prayed for completion of all incomplete works and other duties as mentioned in the paragraph 7, to pay compensation to the tune of Rs.1,00,000/- to each of the Complainants and to directing the O.P. Nos. 2 & 3 to open the lock of the door of the roof permanently and to pay further compensation of Rs.50,000/- each of the Complainants for facing trouble in their day-to-day life.
The O.P. No. 1 contested the by filing the Written Version denying and disputing all the material averments contending inter alia, that there is old boundary wall surrounding the property, the present maintenance of the meter box should be done the flat owners, sufficient lights are there, no mention of glass window to be fixed in the stair, the passage upon main gate is complete and the rest portion is common to others, two reservoirs are provided for better water supply, the Howrah Municipal Corporation never issued any Completion Certificate so that the same cannot be handed over. Accordingly, the O.P. No. 1 prayed for dismissal of the petition of complaint with cost.
O.P. No. 2 also filed the Written Version stating, inter alia, that the O.P. Nos. 2 & 3 being the landowners entered into a development agreement dated 07.11.2005 with the O.P. No. 1, i.e. the developer under certain terms and conditions for development of said property i.e. to construct a proposed three storied building and to develop the premises and as per those terms and conditions the O.P. No. 1 was trusted to complete the job and to sell the flats excluding the 40% portion of owners allocation to the purchasers receiving the consideration amount from them. The O.P. No. 2 also stated that since the landowners did not receive any amount for the Complainants, they have no liability regarding the alleged non-completion of work. The O.P. No. 2 also stated that the landowners did not put any hindrance to the way to roof. Accordingly, the O.P. No. 2 prayed for dismissal of complaint.
In course of argument Ld. Advocate for the Appellant has submitted that the Ld. District Forum had no pecuniary jurisdiction since the value of service and the compensation claimed had exceeded the amount of Rs. 20,00,000/-. Ld. Advocate for the Appellant has further submitted that there were no such stipulations regarding the boundary wall, the covered meter room or the concrete way from main entrance to the building. Ld. Advocate has further submitted that if the boundary wall, as per requirement of the Complainants Respondents, is constructed, the easement right of other flat owners will be infringed. Ld. Advocate for the Appellant has also submitted that the Appellant has done all the promised work and hence he had no deficiency in providing service on his part.
In course of argument Ld. Advocate for the Respondent Complainants has submitted that the instant case was well within the pecuniary jurisdiction of the Ld. District Forum since the disputes were not related to the flats but to some finishing works value of which plus the amount of compensation claimed did not exceed the pecuniary jurisdiction of the Ld. District Forum. Ld Advocate has further submitted that the Ld. District Forum has rightly passed the impugned order.
Having heard both sides it appears that at very outset it is to be decided whether the Ld. District Forum had the pecuniary jurisdiction to entertain the Complaint Case and thereafter to decide whether the construction work has been done as per stipulations of the agreement.
On perusal of the records it appears from the paragraph No. 1 of the Petition of Complaint that the Complainant Nos. 1,2 & 3 purchased their respective flats at consideration amount of Rs. 15,62,630/-, Rs. 5,82,800/- & Rs. 6,75,000/-respectively and prayed for an amount of Rs. 1,00,000/- payable by the O.P. No. 1 to each of the Complainants towards compensation. However, the Complainants Respondents have become consumer under the Appellant by availing the service provided by the Appellant in relation to purchasing their respective flats and, therefore, the consideration amount of the said flats are to be considered as the value of services hired. Summing up, the consideration amount of the said three flats and the amount of compensation claimed exceeds the amount of rupees twenty lakhs which is not within the pecuniary jurisdiction of the District Fora.
Under the foregoing state of affairs it is evident that the Ld. District Forum had no pecuniary jurisdiction to entertain the Complaint Case and therefore there was no scope to decide the case on merit.
In the result, the appeal is allowed.
Hence, ordered that the appeal is allowed on contest but without any order as to cost. The impugned order is set aside. The Petition of Complaint is dismissed. The Complainant is at liberty to file the case on same cause of action before the appropriate forum.
MEMBER MEMBER PRESIDENT