S.C. CASE NO. CC/08/66

DATE OF FILING: 01.12.2008
DATE OF FINAL ORDER: 11.08.2009

COMPLAINANT



Dilip Kumar Sil
Residing at 7426, Royal Dominian Drive Bethesda MD 20817
US and also at No.C-202, 4, D.L. Khan Road
Kolkata – 700 025

OPPOSITE PARTIES

1)The Kolkata Municipal Corporation
Having its office at No.5, S.N. Banerjee, Road
Kolkata – 700 014
2)The Municipal Commissioner
Kolkata Municipal Corporation
Having his office at No.5, S.N. Banerjee Road
Kolkata – 700 014
3)The Manager Mayor In Council (Building)
Kolkata Municipal Corporation
Having his office at No.5, S.N. Banerjee Road
Kolkata – 700 014
4)The Deputy Chief Engineer(s)
Planning and Development of the
Kolkata Municipal Corporation
Having his office at S.S. Hogg Market
PH-II, Top floor, W.BLK 19, Neli Sengupta Sarani
Kolkata – 700 087
5)The Executive Engineer(P)
Planning and Development of the
Kolkata Municipal Corporation
Having his office at S.S. Hogg Market
PH-II, Top floor, W.BLK 19, Neli Sengupta Sarani
Kolkata – 700 087

BEFORE : HON’BLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT
MEMBER : MR. A.K. RAY
MEMBER : MRS. S. MAJUMDER

FOR THE COMPLAINANT : Mr. A.K. Sil, Advocate
FOR THE OPPOSITE PARTIES : Mr. N. Sarkar, Advocate

: O R D E R :

HON’BLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT



This is a complaint filed before this Commission against OPs/Kolkata Municipal Corporation and its Authorities seeking direction upon OPs to remove defects mentioned in paragraph 27 of the complaint, to pay Rs.10 lacs as compensation, to discontinue unfair trade practice of claiming rent from complainant and cost. After the written version was filed by the OPs and the complainant filed his evidence to which OPs filed questionnaire, on behalf of the OPs the Ld. Advocate raised question of maintainability of the present complaint before this Commission on the ground of want of pecuniary jurisdiction of this Commission.


For consideration of the said aspect of pecuniary jurisdiction the scope of the complaint is required to be assessed. The complainant was allotted two flats in a building constructed by the OPs. The complaint paid installments and at times installments were paid late on the instruction of the OPs as the progress of construction was slow. Subsequently, payment of consideration was complete and possession of the flats was delivered to the complainant and the complainant was required to pay rent to the OP1 @ 60 per sq. meter per quarter. The lease deeds were executed and registered. Certain works in the flats were lying incomplete and were not being removed inspite of assurance. The complaint was, therefore, filed indicating the defects in paragraph 27 of the complaint, which were to be removed by the OPs apart from other reliefs.


On behalf of the OPs question has been raised that the pecuniary jurisdiction of this Commission is in respect of complaints “where the value of the goods or services and compensation, if any, claimed exceeds rupees twenty lacs but does not exceed rupees one crore”. In the complaint in paragraph 31 the following statements were made:

“31. The complainant is using the above flats for his residence and not for any other purpose. The value of the flat No.C-202 being Rs.21,42,329/- and the value of the Flat No.C-302 being Rs.21,75,412/- and the compensation claimed being Rs.10,00,000/- the aggregate value of the service and compensation being Rs.53,17,741/- this Commission has the power and pecuniary jurisdiction to entertain the present complaint.”
The argument of the OP is that the value of the two flats are not at all relevant for the purpose of deciding pecuniary jurisdiction as in respect of both the flats possession has been delivered and requisite deeds have been executed and registered. The grievance in respect of the said two flats is not relating purchase or even lease of the flats but is with regard to the service to be rendered by the OPs. Therefore, it is contended for the purpose of valuation of the complaint only the compensation amount of Rs.10 lacs is to be taken into consideration and not the value of the two flats as has been purportedly done by the complainant.


Mr. Sil, the Ld. Advocate for the complainant argued that according to the language used in Section 17 of the C.P. Act the value of the goods and compensation taken together will decide the value of the complaint and, therefore, the value of the flats have been taken into consideration for assessing total value of the complaint for deciding the question of pecuniary jurisdiction of this Commission. In support of his contention Mr. Sil relied on the judgment of the Hon’ble National Commission in the case of Quality Foils India Pvt. Ltd.-vs-Bank of Madura Ltd. reported in 1996(2) CPJ 103 and the judgment of this Commission dated 25.2.09 in case No.SC/33/R/2002 Dr. Amiya Kr. Prodhan-Vs-Smt. Jhuma Nag.


Considering the respective contentions and the materials on record we find from the complaint that in respect of the flats in question possession and execution and registration of deeds of lease have been completed. There is no grievance of the complainant in respect of any of the said items. The main grievance of the complainant is against failure to render service by removing the defects in the flats as mentioned in paragraph 27 of the complaint and against charging rent from the complainant in respect of the said flats. Therefore, the present complaint is not against sale of goods but in respect of service. The complainant is a consumer within Section 2(d)(ii) and not under Section 2(d)(i) of the Consumer Protection Act.

In the above background if Section 17 is considered for finding the law as relating to valuation for ascertaining pecuniary jurisdiction of a Forum/Commission, the value of the service and compensation are to be taken together. Admittedly in the present case the complainant has not assessed any money value for the services and compensation of Rs.10 lacs has been demanded. Even in the case of Quality Foils India Pvt. Ltd. (Supra) we find that consideration in that case was as to whether the value of the goods or of services is to be taken separately from the compensation or the aggregate value of the said two items are to be taken into consideration.

The judgment shows “where a claim of compensation is pleaded in a consumer complaint, then the total value of the goods or services as well as that of compensation would determine the pecuniary limit of jurisdiction. It is the aggregate value of the goods and compensation or the aggregate value of the services as well as that of compensation that determines the pecuniary jurisdiction.” In view of the said law also we are of the opinion that value of the flats are not to be taken into consideration for the purpose of finding pecuniary jurisdiction in respect of the present proceeding. The judgment of this Commission in the case of Dr. Amiya Kr. Prodhan also laid down the same law following the case of Quality Foils India Pvt. Ltd. Therefore, we are of the opinion that the value of the flats are not to be considered for finding out pecuniary jurisdiction of this Commission and on such finding the complaint herein is found not maintainable before this Commission and should be proceeded with before appropriate Forum. The complaint is, therefore, dismissed with liberty to file afresh on the same cause of action before appropriate Forum.




(S. Majumder) (A.K. Ray) (Justice A. Chakrabarti)
MEMBER(L) MEMBER PRESIDENT