Date of Filing:20.10.2008

Date of Order: 12.03.2009

BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20

Dated: 12th DAY OF MARCH 2009

PRESENT

Sri. Bajentri H.M, B.A, LL.B., President

Smt.C.V. Rajamma, B.Sc., LL.B., PGDPR, Member


COMPLAINT NO. 2252 OF 2008

(1)Mr. Ashok V. Shirol,
S/o. Mr. V.C. Shirol,
Aged about 38 years,

(2)Mr. Avinash V. Shirol,
S/o. Mr. V.C. Shirol,
Aged About 29 Years,

Both are R/at:-
No.344, ‘D’ Road,
Ideal Homes Township,
2nd Stage, Rajarajeshwari Nagar,
BANGALORE-560 098. …. Complainants.

-V/s-

1.Concorde Housing Corporation,
Having its Principal place of business
At:- No.42, Rajani Tower, 27th Cross,
VII B Main, Jayanagar IV Block,
Bangalore-560 011.
Rep. by its Managing Partner
Mr. R. Gopal Reddy.

2.Concorde Shelters Pvt. Ltd.,
Having its registered office at:-
No.42, Rajani Tower, 27th Cross,
VII B Main, Jayanagar IV Block,
Bangalore-560 011.
Rep. by its Managing Director
Mr. R. Gopal Reddy. …. Opposite Parties.

ORDER

After conclusion of the trial once the case was posted for orders on 13.02.2009. But after going through the complaint, particularly the statements in Para - 27 & 28, we felt it necessary to hear further arguments regarding pecuniary jurisdiction of this Forum to entertain the complaint. Accordingly further arguments were heard on 26.02.2009 regarding pecuniary jurisdiction.

2. Briefly stated the case of the complainants is that, the opposite parties offered to sell the converted vacant land bearing No.16 in the layout formed at Survey No.166 of Doddathogur Village known as a ‘Silicon Valley’ measuring North to South 12 meters and East to West 18 meters and the agreement to sell was executed on 27.10.2004 and as per the said agreement the complainants were to pay Rs.14,40,000/- towards the vacant land and on payment of the consideration the sale deed was executed on 10.11.2004. Thereafter the construction agreement dated: 27.10.2004 was entered between the complainants and opposite party No.2 for construction of a Villa for total consideration of Rs.29,78,638/-. According to the complainants till 04.04.2005 they paid a total sum of Rs.12,11,183/- to opposite party No.2 towards construction of the Villa and were due Rs.18,09,165/- whereas the opposite party claimed Rs.27,95,465/- for handing over possession of the Villa. Therefore this complaint is filed for following directions to the opposite parties:-
(a) To forthwith complete all pending works as detailed herein as per the prudent industry practices and to the satisfaction of the complainant.

(b) To produce before this Forum an occupancy certificate from the jurisdictional competent authority certifying that the villa is fit for occupation.

(c) Grant the possession of the villa

(d) Pay a sum of Rs.9,97,153/- as the dues and damages to the complainants.

(e) Pay the cost of this complaint

(f) Pass any other order/s in the interest of justice and equity.

3. Thus if one looks at the prayer column of the complaint it would appear that, because the claim is for Rs.9,97,153/- the subject matter is within the pecuniary jurisdiction of the District Forum. How the complainants have arrived at Rs.9,97,153/- as the damages is worked-out and detailed in Para-27 & 28 of the complaint. The averments in Para-27 of the complaint are as under:-

“27. The illegal, capricious, baseless, unfounded demand by the Second opposite party to remit the escalation in the cost due Rs.27,95,465/- is liable to be quashed in limine. Per contra, the complainants need to be compensated for the costs and damages incurred owing to the following among other things:-

A. Loss of Rental – as the Villa cannot be rented out in the present dismal condition;

Conservatively quantified at Rs.25,000/- per Month aggregating to Rs.9,00,000/- (Rupees Nine Lakh only) (36 months x Rs.25,000/-) as of August-2008, without reckoning the interest.

B. Interest for 42 months on Rs.26,51,183/- being the payment already made @ 13% per annum totals to Rs.12,06,288/- (Rupees Twelve Lakh Six Thousand Two Hundred Eighty Eight Only).

C. Mental agony, tension and headache, loss of executive time having to make numerous visits etc., in not getting any response despite the fact that all correspondences are properly and methodically documented; quantified at Rs.2,00,000/- (Rupees Two Lakh Only)

D. Risk of repairs and the pertinent fiscal risk and exposure because of the deficient quality of construction 5,00,000/-, without prejudice to the contentions that construction quality is much poorer that this quantification and leakage is an difficult to resolve and structurally weakening hazard.

All aggregate to an amount of Rs.28,06,288/- tentatively is reckoned without prejudice to the upward revision likely, which therefore in the humble submission of the complainants is merely conservative or an indicative amount which is liable to be paid by the opposite party to the complainant.”

4. Thus in Para-27 of the complaint the complainants claim that the opposite party is liable to pay Rs.28,06,288/- under different heads as narrated in the above paragraph and have stated in Para-28 of the complaint as under:-

“28. Without prejudice and carving leave to refute the same at the appropriate juncture, the Petitioner submits that the illegal claim made by the opposite party for a sum of Rs.27,95,465/- is totally baseless. Even for assumption sake, the said sum need not be reckoned, for being totally capricious and untenable. Therefore, purely for the sake computation of pecuniary jurisdiction, the complainants, crave the leave to reckon dues, alleged to have been due from the complainant standing at Rs.18,09,135/-.

As against this sum, the total compensation and damages claimed by the complainant stands at Rs.28,06,288/-. By setting off one against the other (Rs.28,06,288/- minus Rs.18,09,135/-), as aforesaid, sum of Rs.9,97,153/- (Rupees Nine Lakh Ninety Seven Thousand One Hundred Fifty Three Only) is deduced, which is being claimed by the complainants against the Second opposite party. Since the total claim made by the Petitioner after setting off the claims made Second opposite party stands at of Rs.9,97,153/- the consumer complaint is well within the pecuniary jurisdiction of this Honorable Forum.”

5. From what is stated in Para- 27 & 28 of the complaint it is clear that in the first instance the complainants claim that the opposite parties are liable to pay Rs.28,06,288/- and out of that amount they propose to deduct Rs.18,09,135/- payable by them to the opposite parties towards construction of the Villa and arrive at the balance of Rs.9,97,153/- and state that the claim is within the pecuniary jurisdiction of this Forum namely the District Consumer Disputes Redressal Forum. But the claim for Rs.28,06,288/- is not the ascertained amount. It is unascertained claim subject to proof. In that event when the claim of the complainants is for Rs.28,06,288/- the same is beyond the pecuniary jurisdiction of the District Consumer Disputes Redressal Forum. If that is so, the complainants have to file the complaint before the State Commission for claiming a sum of Rs.28,06,288/- and they cannot be heard to say that after setting-off the amount due by them to the opposite parties the claim for Rs.9,97,153/- is within the pecuniary jurisdiction of this Forum. This contention holds good if the claim was in respect of ascertained amount. It is not the case of the complainants that there was an agreement between them and the opposite parties to pay the amounts claimed under different heads in Para-27 of the complaint and therefore the claim for Rs.28,06,288/- is definite and ascertained. When this claim for Rs.28,06,288/- is required to be proved and is subject to the decision of the appropriate authority the complainants are not entitled to give set-off to the amount payable by them to the opposite parties and arrive at the sum so as to bring the complaint within the pecuniary jurisdiction of this Forum. Therefore in our opinion, when in fact the claim of the complainants is for Rs.28,06,288/-, the same is beyond the pecuniary jurisdiction of this Forum and as such, the complaint cannot be entertained by this Forum. In Para-3 of the additional written arguments filed on 26.02.2009 the learned counsel for the complainant has stated that, in normal course, in a money suit, the creditor has to narrate the amounts due from the debtor as also has to narrate such amounts, if any, which the creditor owes to the debtor and after setting-off the amounts due from each other the final claim is to be ascertained and that becomes the basis for deciding the pecuniary jurisdiction of the Courts. That argument holds good if the claim pertains to ascertained and definite amount and it will not hold good in respect of unascertained amounts. In the case on hand as stated earlier the claim made in Para-27 of the complaint under different heads is in respect of unascertained amounts and the same is subject to decision of the competent authority. In such cases for the purpose of deciding the pecuniary jurisdiction, the total claim has to be taken into consideration. If that is done since the total claim of the complainants is for Rs.28,06,288/- the same is beyond the pecuniary jurisdiction of this Forum. No doubt the opposite parties have not raised any objection with regard to the pecuniary jurisdiction of this Forum to entertain the complaint and thereby it appears as if the opposite parties have submitted or consented to the jurisdiction of this Forum to entertain the complaint. But even with consent of the parties a subject matter which is beyond the pecuniary jurisdiction of this Forum cannot be entertained. In other words pecuniary jurisdiction cannot be conferred by consent of the parties. In this view of the matter since the total claim made by the complainants is beyond the pecuniary jurisdiction of this Forum, the complaint is liable to be retuned for presentation before the proper Forum. In the result, we pass the following:-

ORDER

6. Return the complaint to the complainants for presentation before the proper or appropriate Forum.

7. Send a copy of this order to both the parties free of costs immediately.

8. Pronounced in the Open Forum on this the 12th Day of MARCH 2009.

-Sd/- -Sd/-
MEMBER PRESIDENT