National Consumer Disputes Redressal
Rajesh Kumar Gupta & 18 Ors. vs Sugam Mercantile Pvt. Ltd. & 2 Ors. on 23 March, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 632 OF 2019 (Against the Order dated 01/03/2019 in Complaint No. 110/2017 of the State Commission West Bengal) 1. RAJESH KUMAR GUPTA & 18 ORS. S/O. LATE RAM KISHAN GUPTA, R/O. FLAT NO 3F, H NO 295/2, GT ROAD (N) SALKIA , BABUDANGA, P.S. MALIPANCHGHORA HOWRAH WEST BENGAL 711 106 2. ABHISEK SUREKA S/O. VIJAY KUMAR SUREKA, R/O. FLAT NO 1F, H NO 295/2, GT ROAD (N) SALKIA , BABUDANGA, P.S. MALIPANCHGHORA HOWRAH WEST BENGAL 711 106 3. VIJAY KUMAR AGARWAL S/O. LATE SATYA NARAYAN AGARWAL, R/O. FLAT NO 2B, H NO 295/2, GT ROAD (N) SALKIA , BABUDANGA, P.S. MALIPANCHGHORA HOWRAH WEST BENGAL 711 106 4. TARAK NATH SHAW S/O. SHRI BASANT LAL SHAW, R/O. FLA TNO 2C, H NO 295/2, GT ROAD (N) SALKIA , BABUDANGA, P.S. MALIPANCHGHORA HOWRAH WEST BENGAL 711 106 5. SANSKRITI AGENCIES PVT LTD THROUGH SRI ANUP JHUN JHUNWALA S/O SRI KRISHNA KUMAR JHUNJHUNWALA , R/O. FLA TNO 2D, H NO 295/2, GT ROAD (N) SALKIA , BABUDANGA, P.S. MALIPANCHGHORA HOWRAH WEST BENGAL 711 106 6. GHANSHYAM DAS KHARKIA S/O. LATE RAM NIWAS KHARKIA, R/O. FLAT 2E, H NO 295/2, GT ROAD (N) SALKIA , BABUDANGA, P.S. MALIPANCHGHORA HOWRAH WEST BENGAL 711 106 7. DILIP KUMAR BHUWALKA S/O. RAM RATAN BHUWALKA , R/O. FLAT NO 2F, H NO 295/2, GT ROAD (N) SALKIA , BABUDANGA, P.S. MALIPANCHGHORA HOWRAH WEST BENGAL 711 106 8. KISHAN KUMAR BHOJNAGARWALA S/O. LATE BANSI DHAR BHOJNAGARWALA, R/O. FLAT NO 3A, H NO 295/2, GT ROAD (N) SALKIA , BABUDANGA, P.S. MALIPANCHGHORA HOWRAH WEST BENGAL 711 106 9. JAIDEO DHANANIA S/O. SHRI NANAK CHAND DHANANIA, R/O. FLAT NO 3B, H NO 295/2, GT ROAD (N) SALKIA , BABUDANGA, P.S. MALIPANCHGHORA HOWRAH WEST BENGAL 711 106 10. S.K. KHETAN REP. BY KARTA SRI SANJEEV KUMAR KHETAN, S/O. SRI BED PRAKASH KHETAN R/O. FLAT NO 3C, H NO 295/2, GT ROAD (N) SALKIA , BABUDANGA, P.S. MALIPANCHGHORA HOWRAH WEST BENGAL 711 106 11. SUNIL KUMAR AGARWAL S/O. LATE SRI NIWAS AGARWAL, R/O. FLAT NO 3D, H NO 295/2, GT ROAD (N) SALKIA , BABUDANGA, P.S. MALIPANCHGHORA HOWRAH WEST BENGAL 711 106 12. MANOJ KUMAR KHIRWAL S/O. LATE JAGANNATH KHIRWAL, R/O. FLAT NO 3E, H NO 295/2, GT ROAD (N) SALKIA , BABUDANGA, P.S. MALIPANCHGHORA HOWRAH WEST BENGAL 711 106 13. ANIL KUMAR DHANANIA S/O. SRI KAILASH CHANDRA AGARWAL, R/O. FLAT NO 1C, H NO 295/2, GT ROAD (N) SALKIA , BABUDANGA, P.S. MALIPANCHGHORA HOWRAH WEST BENGAL 711 106 14. SUSHMA SHARMA W/O. SHRI YOGINDER KUMAR SHARMA, R/O. FLAT NO 4A, H NO 295/2, GT ROAD (N) SALKIA , BABUDANGA, P.S. MALIPANCHGHORA HOWRAH WEST BENGAL 711 106 15. SUNIL PODDAR S/O. LATE KASHI PRASAD PODDAR, R/O. FLAT NO 4B, H NO 295/2, GT ROAD (N) SALKIA , BABUDANGA, P.S. MALIPANCHGHORA HOWRAH WEST BENGAL 711 106 16. ASHOK KUMAR GUPTA S/O. LATE LAXMI CHAND GUPTA, R/O. FLAT NO 4C, H NO 295/2, GT ROAD (N) SALKIA , BABUDANGA, P.S. MALIPANCHGHORA HOWRAH WEST BENGAL 711 106 17. MAYANK AGARWAL R/O. SHRI MURATI LAL AGARWAL, R/O. FLAT NO 4D, H NO 295/2, GT ROAD (N) SALKIA , BABUDANGA, P.S. MALIPANCHGHORA HOWRAH WEST BENGAL 711 106 18. SANJAY KUMAR GUPTA S/O. RAM BILAS GUPTA, R/O. FLAT NO 4F, H NO 295/2, GT ROAD (N) SALKIA , BABUDANGA, P.S. MALIPANCHGHORA HOWRAH WEST BENGAL 711 106 ...........Appellant(s) Versus 1. SUGAM MERCANTILE PVT. LTD. & 2 ORS. THROUGH ITS DIRECTOR, SRI AKSHAT PANDEY, 111, PARK STREET KOLKATA WEST BENGAL 700 016 2. SRI KASHI NATH PANDEY( SINCE DECEASED) HIS LEGAL HEIRS DEOKI AWASTHI (DAUGHTER) R/O 29, DR.ASHUTOSH SHASTRI ROAD, BELEGHATA, KOLKATA-700010 3. SRI AKSHAT PANDEY S/O. KASHI NATH PANDEY R/O. P-54, CITY ROAD, P.S. BELIAGHATA KOLKATA 700 010 4. NAVNEET PANDEY (SON) S/O LATE KASHI NATH PANDEY R/O R/O 29, DR.ASHUTOSH SHASTRI ROAD, BELEGHATA, KOLKATA-700010 5. POONAM TIWARI (DAUGHTER) D/O LATE SHRI KASHI NATH PANDEY, R/O R/O 29, DR.ASHUTOSH SHASTRI ROAD, BELEGHATA, KOLKATA-700010 6. AKSHAT KUMAR PANDEY (SON) S/O LATE SHRI KASHI NATH PANDEY, R/O 29, DR.ASHUTOSH SHASTRI ROAD, BELEGHATA, KOLKATA-700010 7. UMA PANDEY (DAUGHTER) D/O LATE SHRI KASHI NATH PANDEY, R/O R/O 29, DR.ASHUTOSH SHASTRI ROAD, BELEGHATA, KOLKATA-700010 ...........Respondent(s)
BEFORE: HON'BLE MR. DINESH SINGH,PRESIDING MEMBER HON'BLE MR. JUSTICE KARUNA NAND BAJPAYEE,MEMBER For the Appellant : For the Appellants : Mr. Manohar Pratap, Advocate with Mr. Salaj Kumar Rai, Advocate For the Respondent : For the Respondents : Mr. Prithviraj Sarkar, Advocate with Mr. Gautam Bajaj, Advocate Mr. A. Ghose, Advocate Dated : 23 Mar 2023 ORDER
1. This appeal under section 19 of The Consumer Protection Act, 1986 is in challenge to the Order dated 01.03.2019 of the State Commission in complaint no. 110 of 2017.
2. We have heard the learned counsel for the appellants (the 'complainants') and for the respondents (the 'developer'). We have also perused the record including inter alia the State Commission's impugned Order dated 01.03.2019 and the memorandum of appeal.
3. Briefly, 19 individual persons purchased 19 individual flats from the developer. All 19 were delivered possession. The respective registrations of the flats were undertaken between 2010 and 2013. Subsequently, after some time, on 20.07.2018, 18 of them filed a complaint before the State Commission asking for directions to the developer to execute registration of a scheduled area of approximately 2840 sq. ft. along with compensation of Rs. 2 lakh each and also for order against the officer-in-charge of the concerned police station to pay Rs. 50 thousand from his own pocket for the mischief caused in the name of rendering public duty.
The State Commission vide its Order dated 01.03.2019 dismissed the complaint on the point of pecuniary jurisdiction. The gist of its examination of this issue is being reproduced below for reference:
After considering the entire materials on record and after giving due consideration to the submission made by the Ld. Advocates of the respective parties and keeping in view the authority referred above, we are constrained to hold that if the aggregated value of all the flats purchased by the complainants, the value of Rs. 28,50,000/- for area of 2840 sq. ft. along with two rooms on the ground floor and the compensation claim by the complainants amounting to Rs. 36,00,000/- are taken together, it will certainly cross the limit of pecuniary jurisdiction of this Commission.
In view of the above, the application being IA/425/2018 is, thus, allowed on contest.
Consequently, the instant complaint is rejected being not maintainable for want of pecuniary jurisdiction.
However, this order will not debar the complainants to approach the appropriate Forum in accordance with law.
4. Learned counsel for the complainants submits that 19 individual persons, including the 18 complainants herein, had earlier purchased their respective flats from the developer vide their respective agreements at the respective considerations. The registrations of the flats were undertaken between 2010 and 2013. Subsequently they contributed to pay Rs. 28.50 lakh for purchase of a scheduled area of approximately 2840 sq. ft. Of them, 18 are the complainants herein. The 19th was made opposite party no. 4 before the State Commission, and has not been made a respondent by the developer in the present appeal. The State Commission has clubbed the instant separate and independent transaction regarding the scheduled area with the earlier transaction(s) of purchase of flats and has taken the value of the flats along with the value of the scheduled area as the 'value of the services' in making its computation regarding pecuniary jurisdiction. Learned counsel submits that adding the value of the flats is erroneous since the same was a prior transaction, different and separate of the present transaction. The value of the scheduled area is Rs. 28.50 lakh, which, together with the compensation being claimed now of Rs. 2 lakh each i.e. total Rs. 36 lakh, altogether comes to Rs. 64.50 lakh and fairly falls within the pecuniary jurisdiction of the State Commission.
5. Learned counsel for the developer submits that the State Commission has not erred in any manner. The value of the flats has been rightly added. He also submits that a purported receipt from the developer for an amount of Rs. 28.50 lakh being shown by the complainants in respect of the alleged purchase of the scheduled area is forged and also that there is no agreement in respect of sale of the said scheduled area to the complainants.
6. Learned counsel for the complainant in rebuttal submits that the agreement was oral. The receipt relates to cheque transactions which are a matter of bank record and as such no questions can be raised on the veracity of transaction regarding money having been actually paid to the developer.
7. Here, at the stage of deciding the preliminary issue of pecuniary jurisdiction, we are not unduly concerned with the truthfulness or otherwise of the allegations made in the complaint or specifically of the genuineness or otherwise of the receipt being shown by the complainants. The facts will be duly determined in the due course on the basis of the evidence adduced by the rival parties. Here we are only concerned with the initial computation apropos pecuniary jurisdiction. As per the provisions of the Act 1986, the 'value of the services' plus the 'compensation claimed' have to be taken together for determining the pecuniary jurisdiction of the forum concerned. In the instant case, the 'value of the services' for the scheduled area is Rs.28.50 lakh and the 'compensation claimed' is Rs. 36 lakh, which totals Rs. 64.50 lakh. The same exceeds Rs. 20 lakh but does not exceed Rs. 1 crore. This falls within the pecuniary jurisdiction of the State Commission. Earlier the complainants had purchased their respective flats from the developer for the respective considerations as per the respective agreements and transactions. The payments for the flats were made in 2009 and 2010. Registration was executed between 2010 and 2013. The present complaint was filed in 2018 in respect of a subsequent separate and independent grievance relating to purchase of a scheduled area on payment of Rs. 28.50 lakh. The payment is alleged to have been made in 2012. In case the parties are the same i.e. the complainants and the developer are the same, it does not imply that the value of the earlier transaction(s) in respect of which there is no dispute will be clubbed with the value of a subsequent separate and independent transaction. Earlier the complainants had purchased their flats albeit from the same developer for the respective considerations as per the respective agreements and transactions. No dispute has been raised about this. The present dispute is essentially and only regarding sale of a scheduled area of approximately 2840 sq. ft. The earlier transaction(s) regarding purchase of the flats can in no manner be added for deducing the 'value of the services', the same has necessarily to be the value for the scheduled area alone which is the exclusive subject-matter of the present complaint in question. We agree with the learned counsel for the complainants that the State Commission has erred in adding the value of the flats also. The earlier transaction(s) made by the complainants for purchase of the flats and the present transaction for purchase of the scheduled area are separate and independent and removed in time from each other and can therefore not be clubbed or misjoined together. As such the matter unarguably falls within the pecuniary jurisdiction of the State Commission.
8. Sequel to the above the impugned Order dated 01.03.2019 is set aside and the case is remanded back to the State Commission with the request that it may decide the case on its merits as per the law after affording opportunity to both sides to adduce their evidence and advance their arguments.
Nothing contained in the present Order shall be construed to cause any prejudice to either side and the State Commission shall decide the case on the basis of the facts and the evidence adduced before it by the rival sides.
The parties are directed to appear before the State Commission on 09.05.2023.
9. The Registry is requested to send a copy each of this Order to the parties in the appeal and to their learned counsel immediately. It is also requested to send a copy of this Order to the State Commission by the fastest mode available. The stenographer is requested to upload this Order on the website of this Commission immediately.
'Dasti", in addition, to both sides.
...................... DINESH SINGH PRESIDING MEMBER ......................J KARUNA NAND BAJPAYEE MEMBER