State Consumer Disputes Redressal Commission
Tapas Dutta vs Indranil Bhattacharjee on 25 March, 2019
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/960/2018 ( Date of Filing : 11 Dec 2018 ) (Arisen out of Order Dated 16/11/2018 in Case No. Complaint Case No. CC/534/2016 of District Kolkata-III(South)) 1. Tapas Dutta 73, Raja Ram Mohan Roy Road, 2nd Floor, Flat no.-3A, P.S. Haridevpur, Kolkata- 700 041. ...........Appellant(s) Versus 1. Indranil Bhattacharjee Prop. M/s. A & B Developers, 300/4, N.S.C. Bose Road, P.S. Patuli, Kolkata - 700 047. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. Dipa Sen ( Maity ) MEMBER For the Appellant: Mr. Mrityunjoy Halder, Advocate For the Respondent: Mr. Souvik Nandy, Advocate Dated : 25 Mar 2019 Final Order / Judgement PER :HON'BLE SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER
The instant appeal under Section 27A of the Consumer Protection Act, 1986 (for brevity, 'the Act') is at the behest of complainant SriTapas Dutta to assail the Order No.22 dated 16.11.2018 passed by the District Consumer Disputes Redressal Forum, Kolkata, Unit-III (in short, 'Ld. District Forum') in MA/132/2018 arising out of Consumer Complaint No.534/2016. By the impugned order, the Ld. District Forum rejected the application filed by the appellant u/s 27 of the Act to initiate penal action against the respondent No. 1/ opposite party No.1 with an observation that unless and until final adjudication takes place, no such direction can be given.
The appellant herein being complainant lodged the complaint before the Ld. District Forum asserting that on 30.09.2013 he entered into an agreement for sale with opposite party No.1/respondent No.1 (developer) to purchase of a self-contained flat measuring about 1041 Sq. ft. super built up area being flat No.3A on the top floor along with a car parking space measuring 130 sq. ft. on the ground floor together with proportionate right of common facilities and common benefits including roof of the building lying and situated at premises No.73, Raja Ram Mohan Roy Road, P.S.- Haridevpur, Kolkata-700041, District- Sough 24 Parganas within the local limit of Ward No.115 of the Kolkata Municipal Corporation at a total consideration of Rs.35,00,000/- for the flat and Rs.5,00,000/- for the car parking space aggregating Rs.40,00,000/-. The complainant states that the respondent No.1 handed over the possession of the subject flat and car parking space on 12.02.2014. Subsequently, on 14.02.2014 the deed of conveyance has been executed. The complainant/appellant alleged that on 12.11.2016 at 9.30 a.m. he found that the opposite party No.1/respondent No.1 has put the padlock in the main entrance gate from the outside and the complainant tried to obtain the padlock but one Mithu Barik, man of respondent No.1 obstructed and withheld the car. Hence, the appellant approached the Ld. District Forum on the allegation of deficiency in services, primarily on the part of developer with prayer for following reliefs viz.- (i) allotment of car parking in favour of complainant as earmarked as 'V' in the sanctioned plan and cancel the sketch map of ht car parking that is annexed with the deed of conveyance as the respondent No.1 prepared such sketch map himself illegally and allotted car parking No.2 in favour of the complainant fraudulently; (ii) declaration to the effect that the respondent No.1 has/had no right to convert 1 car pakring space into 2 car parking space and open space should be declared as common space for all the flat owners and the respondent No.1 has no right to sale said space to any third party or allot to any person; (iii) direction upon the respondent No.1 for making payment an amount of Rs.(Rs.16,000+ Rs.80,792/-) = 96,792/- as cost of removing of defect in car parking space, and repair & maintenance and painting of the deemed wails; (iv) direction upon the respondent No.1 for making payment an amount of Rs.3,000/- per day from 12.11.2016 till the car is possessed by the complainant as damages for withholding the car of the complainant for his inconvenience and physical suffering; (v) direction upon the respondent NO.1 for making payment an amount of Rs.50,000/- for not removing the defect of car parking space for the 18 months as such car was kept in the road side and for suffering wear and tear and for inconvenience and physical suffering to the complainant; (vi) direction upon the respondent No.1 for making payment an amount of Rs.2 lakhs as cost of proceedings includes harassment, mental agony and physical suffering for last 3 years and it is continuing; (vii) direction upon the respondent No.1 for making payment interest 2 12% on the awarded amount and (viii) any other relief's as the complainant may be entitled to be granted.
The respondent No.1/opposite party No.1 by filing a written version has been contesting the case.
During the pendency of the proceeding, the complainant filed an application before the Ld. District Forum with a prayer for a direction upon respondent No.1 to remove the padlock from the car parking space with the order dated 04.01.2018 passed by this Commission. By the impugned order, the Ld. District Forum rejected the application with an observation that unless and until the final adjudication takes place such direction cannot be given. Challenging the said order, the complainant has come up in this Commission with the present appeal.
We have considered the submission made by the Ld. Advocates appearing for the parties and scrutinised the materials on record.
In the petition of compliant, the appellant has spell out that the value of the subject flat and car parking space as Rs.40,00,000/- which is apparently beyond the pecuniary limit of the Ld. District Forum. Under the scheme of the Act, the original complaint can be filed in the District Forum or the State Commission or the National Commission depending upon the value of the cost of the goods/services. Section 11 of the Act provides that a District Forum shall have jurisdiction to entertain complainants where values of the goods or services and compensation, if any does not exceed rupees twenty lakhs. According to Section 17, State Commission can entertain the complaints where the value of goods or services and compensation claimed exceeds rupees twenty lakhs but does not exceed one crore and if the said value is more than rupees one crore jurisdiction to entertain the original complaint lies with the Hon'ble National Commission as provided under Section 21 of the Act.
In this backdrop, it has to be seen whether the Ld. District Forum has pecuniary jurisdiction to entertain the complaint. For appreciation of the matter, it would be pertinent to have a look to the provisions of section 11 (1) of the Act which provides -
"11. Jurisdiction of the District Forum. -
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'.
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.
The Act does not specifically lay down as to how a complaint is to be valued for the purpose of jurisdiction. However, the Hon'ble National Commission is consistent with the view that it is the total value of the goods and / or services as well as that of compensation would determine the pecuniary limit of jurisdiction of Consumer Forum. In a decision reported in 1996 (2) CPR 26 (M/S Quality Foils India Pvt. Ltd Vs Bank of Madura Ltd and Anr.) a larger Bench of Hon'ble National Commission presided by Justice V. Balakrishna Eradi has observed -
"in our view, where a claim of compensation is pleaded in a Consumer Complaint, then the total value of the goods and / or services as well as that of compensation would determine the pecuniary limit of jurisdiction".
In a celebrated decision reported in reported in I (2017) CPJ 1 (Ambrish Kumar Shukla and 21 others vs.- Ferrous Infrastructure Pvt. Ltd.) the Larger Bench of the Hon'ble National Commission while discussing on the point has observed thus-
"It is evident from a bare perusal of Sections 21, 17 and 11 of the Consumer Protection Act that it's the value of the goods or services and the compensation, if any, claimed which determines the pecuniary jurisdiction of the Consumer Forum. The Act does not envisage determination of the pecuniary jurisdiction based upon the cost of removing deficiencies in the goods purchased or the servicers to be rendered to the consumer. Therefore, the cost of removing the defects or deficiencies in the goods or the services would have no bearing on the determination of the pecuniary jurisdiction. If the aggregate of the value of the goods purchased or the services hired or availed of by a consumer, when added to the compensation, if any, claimed in the complaint by him, exceeds Rs.1.00 crore, it is this Commission alone which would have the pecuniary jurisdiction to entertain the complaint ....". Giving instance to the same the Hon'ble Commission further proceeded to observe - 'if for instance, a house is sold for more than Rs. 1.00 crore, certain defects are found in the house, and the cost of removing those defects is Rs. 5.00 lacs, the complaint would have to be filed before this Commission, the value of services itself being more than Rs. 1.00 crore'.
Therefore, there cannot be any dispute that it is the value of goods or services and compensation claimed which determines pecuniary jurisdiction of the Consumer Forum. The District Forum enjoys a pecuniary jurisdiction not exceeding Rs.20 lakhs. In the instant case, the complainant/appellant has purchased the flat in question and car parking space at a value of Rs.40,00,000/-. Therefore, the Ld. District Forum without addressing the issue of pecuniary jurisdiction should not have entered into the merit of the case. On that ground alone, the complaint should have been rejected.
Since it appears that the Ld. District Forum had no pecuniary jurisdiction to entertain the complaint and further the Ld. District Forum did not consider the point as to pecuniary jurisdiction at the time of admission of complaint, the appeal should be disposed of with an observation that the Ld. District Forum lacks pecuniary jurisdiction to entertain the complaint.
For the reasons aforesaid, we do not find any reason to enter into merits of the case.
In view of the above, the appeal is disposed of with an observation that the complaint being CC/534/2016 being not amenable before the Ld. District Forum is rejected. However, there will be no order as to costs.
It is made clear that the appellant/complainant shall have liberty to approach the appropriate Forum in accordance with the scheme of the Act and the authority referred above.
The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit -III for information.
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. Dipa Sen ( Maity )] MEMBER