State Consumer Disputes Redressal Commission
Sri Pranab Basak vs Sri Satyananda Pan on 7 February, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Revision Petition No. RP/172/2015 (Arisen out of Order Dated 20/11/2015 in Case No. Complaint Case No. CC/172/2015 of District Howrah) 1. Sri Pranab Basak S/o, Lt. Golak Bihari Basak, 36, Palm Avenue, P.S - Karaya, Kolkata - 700 019. ...........Appellant(s) Versus 1. Sri Satyananda Pan S/o, Lt. Purnananda Pan, Flat No. - 403C, 4th Floor, Pratima Apartment, 373, Mohiari Road, P.O - G.I.P. Colony, P.S - Jagachha, Dist - Howrah - 711 112. 2. Smt. Alpana Pan W/o, Sri Satyananda Pan, Flat No. - 403C, 4th Floor, Pratima Apartment, 373, Mohiari Road, P.O - G.I.P. Colony, P.S - Jagachha, Dist - Howrah - 711 112. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. MRIDULA ROY MEMBER For the Petitioner: Mr.Amalendu Das, Mr. Souvik Chatterjee, Advocate For the Respondent: Mr. Prithwiraj Sarkar, Advocate Dated : 07 Feb 2017 Final Order / Judgement Date of Filing - 16.12.2015 Date of Hearing - 27.01.2017 PER HON'BLE SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER
The instant Revisional Application under Section 17(1)(b) of the Consumer Protection Act, 1986 (for brevity, 'the Act') is at the behest of Opposite Party to impeach the Order No.06 dated 20.11.2015 made by the Ld. District Consumer Disputes Redressal Forum, Howrah (in short, Ld. District Forum) in Consumer Complaint no. 172/2015 whereby the application filed by the OP/Revisionist challenging the maintainability of the proceeding on two grounds, viz -(a) the Ld. District Forum lacks pecuniary jurisdiction as envisages under Section 11(1) of the Act and (b) the Ld. District Forum also lacks territorial jurisdiction as embodied in Section 11(2) of the Act has been rejected.
The Opposite Parties herein i.e. (1) Sri Satyananda Pan and (2) Smt. Alpana Pan being Complainants lodged the complaint under Section 12 of the Act before the Ld. District Forum stating that by a Registered Sale Deed dated 11.09.2013, he has purchased a self-contained flat measuring about 898.34 sq. ft. super built up area situated on the 4th floor in a G+4 storied building standing at Premises No.373, Mohiari Road, P.S.- Jagachha, Dist- Howrah at a total consideration of Rs.23,80,000/-. However, after purchase the Complainant noticed several deficiencies and as such brought the complaint with prayer for certain reliefs including refund of Rs.3,02,400/- for short fall of area of flat and Rs.1,00,000/- as compensation.
After entered appearance, the Revisionist being OP filed a written version stated that the value of the flat being Rs.23,80,000/-, the Ld. District Forum has no pecuniary jurisdiction to entertain the same. The OP has further stated that the OP resides within the District Kolkata and as such the Ld. District Forum also has no territorial jurisdiction to entertain the complaint.
After hearing both sides by the impugned order, the Ld. District Forum rejected the said application, which prompted the OP has come up in this Commission with the instant revision petition.
We have scrutinised the materials on record and considered the submission advanced by the Ld. Advocates appearing for the parties.
First, we shall consider as to 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 Revisionist 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 flat and compensation should have been taken into consideration in assessing the valuation of the property and when the value of the subject flat is more than Rs.23,80,000/-, the Ld. District Forum has no jurisdiction to entertain the same and as such the impugned order should be set aside.
Mr. Prithwiraj Sarkar, Ld. Counsel for the OP/Complainant in this regard has submitted that the Complainant has initiated the proceeding in order to get refund the shortfall or area and compensation amounting to Rs.3,02,400/- + Rs.1,00,000/- respectively aggregating of Rs.4,02,400/- and as such the Ld. District Forum has rightly observed that it has got pecuniary jurisdiction to entertain the same.
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, we 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 valued above Rs.20 lakhs and as such the Ld. District Forum lacks inherent jurisdiction in entertaining the instant complaint.
So far as territorial jurisdiction is considered, it would be pertinent to reproduce the provisions of Section 11(2) of the Act which deals with territorial jurisdiction of District Forum -
"(2) A complaint shall be instituted in District Forum within the limits of whose jurisdiction -
the opposite party or each of the opposite parties, where there are more than one, at the time of institution of complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain, or any of the opposite parties, where there are more than one, at the time of institution of the complaint, actually and voluntarily resides or carries on business or has a branch office, or personally works for gain, provided that in such cases either the permission of the District Forum is given or the opposite parties who do not resides, or carry on business or have a branch office, or personally work for gain, as the case may be acquiesce in such institution; or the cause of action, wholly or in part arises".
It is true that the Revisionist/OP resides at Palm Avenue, Kolkata outside the jurisdiction of the Ld. District Forum at Howrah. The OP/Revisionist being developer undertook to construct a multi-storied building within P.S.- Jagaccha under District Howrah and certainly in doing so, he has an office in the project/complex for smooth functioning of the construction and for showing a view of the flat to the intending purchasers. Therefore, a part of cause of action in this case also arises at Premises No.373, Mohiari Road, P.S.- Jagaccha in the District of Howrah and as such when a part of cause of action arose within the district Howrah, the Ld. District Forum has jurisdiction to entertain the complaint and in this regard, the observation of the Ld. District Forum is perfectly right and we do not find any reason to differ with the same.
After giving due consideration to the submission advanced by the Ld. Advocates appearing for the parties and on having a look to the materials on record including the provisions of the Act and the decision in the case of Ambrish Kumar Shukla & 21 Ors. (supra), though we do not find any infirmity in passing the order by the Ld. District Forum that it has got territorial jurisdiction as embodied in Section 11(2) of the Act but it lacks pecuniary jurisdiction in view of the provisions of Section 11(1) of the Act and the authority as referred above.
In view of the reasons stated above, the revision petition is allowed on contest. However, there will be no order as to costs.
The Order No.06 dated 20.11.2015 passed by the Ld. District Forum in HDF Case No.172 of 2015 is hereby set aside.
Consequently, CC/172/2015 stands dismissed.
However, this does not debar the Complainant to approach the appropriate Forum in accordance with law and in this regard, Complainant may seek assistance the observation of the 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, Howrah for information and necessary action.
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. MRIDULA ROY] MEMBER