Per Shri A.Z.Khwaja, Hon’ble Judicial Member.
1) Petitioner Capital Heights has preferred the present revision petition feeling aggrieved by the impugned order dated 29/07/2019 passed by the learned District Consumer Commission Nagpur in Consumer Complaint No.380/2018 whereby the preliminary objection raised by the petitioner regarding lack of pecuniary jurisdiction came to be rejected. (Petitioner and respondent shall be referred by their original nomenclature).
2) Short facts leading to the filing of the revision petition may be narrated as under.
3) Complainant had booked the flat bearing No.603 on 6th floor in the tower No.4 in the project of the petitioner on 26/12/2014 for consideration of Rs.1,03,75,808/-. Complainant also paid booking amount of Rs.5,00,000/- and was supposed to pay 20% of the total consideration within 3 months of the date of booking. Complainant did not pay 20% of the balance amount as per agreed schedule but paid an amount of Rs.5,00,000/- by two cheques after three months. Complainant has alleged that though the respondent had accepted the amount of Rs.10,00,000/- after booking the flat, the construction was not completed and no allotment was made as per the terms of the agreement. Complainant thereafter informed the respondent that since the respondent had not completed the construction and had also not handed over the possession there was deficiency in service. Complainant has therefore filed the Consumer Complaint for refund of the amount alongwith interest and also for compensation towards mental and physical harassment.
4) During the pendancy of the complainant, the respondent/O.P. preferred an application contending that since the consideration value of the flat booked by the complainant was for an amount of Rs.1,03,75,808/- and the same was beyond the pecuniary jurisdiction of the District Consumer Commission, the complaint will have to be filed before the Hon’ble National Commission as the Hon’ble National Commission has pecuniary jurisdiction to try the Consumer Complaint and not the District Consumer Commission. Respondent/O.P. therefore prayed that the complaint filed by the complainant be returned for want of pecuniary jurisdiction.
5) Complainant/respondent has filed reply strongly resisting the application. Complainant has taken a plea that though the value of the flat booked by him was above one crore but the complainant had paid only Rs.10,00,000/- at the time of booking of the flat and since the O.P. did not complete the construction he has only prayed for refund of the amount of Rs.10,00,000/-. Complainant has also contended that the O.P. had already cancelled the allotment as per letter dated 31/03/2018. Complainant has further contended that the application filed by the O.P./Petitioner was misconceived and the District Consumer Commission alone had pecuniary jurisdiction to try the complaint and not the Hon’ble National Commission.
6) The learned District Consumer Commission Nagpur thereafter heard the learned advocate for the petitioner as well as respondent on the question of Preliminary objection and thereafter rejected the preliminary objection by passing the order Dated 29/07/2019 which is challenged in the present revision petition.
7) We have heard learned advocate Shri Puranik for the petitioner and Shri A.T.Sawal learned advocate for respondent. One short question which has arisen for our determination is whether the learned District Consumer Commission had pecuniary jurisdiction to try the complaint filed by the present complainant/respondent. Shri Puranik learned advocate for the petitioner has submitted that the learned District Consumer Commission Nagpur has not properly appreciated the facts on record and also not taken into consideration the ratio laid down in the case of Ambrish Kumar Shukla…..V/s…..Ferrous Infrastructural Ltd., decided by the Hon’ble National Commission on 07 October 2016, (reported in 2016 LawSuit(CO) 1522), wherein it has been observed that the pecuniary jurisdiction of the District Consumer Commission has to be determined on the basis of sale consideration paid or agreed to be paid by the consumer. We have also heard Shri Sawal learned advocate for the respondent and he has supported the order Dated 29/07/2019 passed by the District Consumer Commission Nagpur. Prior to dealing with the landmark judgment in the case of Ambrish Kumar Shukla…..V/s….Ferrous Infrastructural Ltd.(cited supra), it is necessary to deal with the facts of the present complaint. Admittedly the complainant had booked flat No.603 in tower No.4 of the project floated by the petitioner/company. Complainant has himself pleaded in the complaint that he had booked flat for total consideration of Rs.1,03,75,808/- and had also paid sum of Rs.1,00,000/- as booking amount and thereafter had also paid another sum of Rs.5,00,000/-. Complainant has thereafter alleged in the complainant that the O.P. had assured to complete the construction and handover the possession of the flat by December 2015 but did not complete the construction as promised and did not handover the possession. On the contrary the O.P. had sold the flat at lower rate to other Consumer. Complainant has alleged that since the O.P. had not completed the construction, the complainant informed that they had terminated the agreement and they were interested only in the refund of the amount of Rs.10,00,000/-, but the same was not paid and so since there was deficiency in service the complainant filed the Consumer Complaint. Shri Puranik learned advocate for the petitioner has contended before us that the learned District Consumer Commission has not properly considered the facts and law laid down and has erroneously come to the conclusion that the complainant had only sought refund of Rs.10,00,000/- and has therefore held that the ratio laid down in the case of Ambrish Kumar Shukla…..V/s….. Ferrous Infrastructural Ltd. (cited supra), will not be applicable. We have also heard Shri Sawal learned advocate for the respondent. In view of this submission, we have also gone through the impugned order dated 29/07/2019 passed by the learned District Consumer Commission Nagpur. If we go through the said order, the learned District Consumer Commission Nagpur had also taken this view that since the complainant had filed the Consumer Complaint seeking only refund of not more than Rs.10,00,000/- the District Consumer Commission will have pecuniary jurisdiction to deal with the complaint and ratio laid down in the case of Ambrish Kumar Shukla…..V/s….. Ferrous Infrastructural Ltd. (cited supra), will not be applicable. As such it has become necessary to examine the said facts in the light of observations made by the Hon’ble National Commission in the case of Ambrish Kumar Shukla …...V/s….. Ferrous Infrastructural Ltd. (cited supra). We have carefully gone through the landmark judgment decision in the case of Ambrish Kumar Shukla …...V/s….. Ferrous Infrastructural Ltd. (cited supra), in the light of aforesaid facts. In the case of Ambrish Kumar Shukla …...V/s….. Ferrous Infrastructural Ltd. (cited supra), the Hon’ble National Commission has elaborately dealt with all the aspects and has settled the law on this aspect by observing that the value of goods and services as mentioned in Section 12(1)( c ) shall be determined by the market price of the goods or services as the case may be when added to the amount of compensation. The Hon’ble National Commission has further observed that the sale consideration agreed to be paid by the consumer shall be taken as value of goods or services. Further the Hon’ble National Commission has observed that the amount of compensation as claimed in the complaint will be added to the agreed consideration and the aggregate of the consideration and the compensation claimed in the complaint would determine the pecuniary jurisdiction of the Consumer Commission. Shri Puranik learned advocate of the petitioner has submitted that in the present case the admitted consideration of the flat booked by the complainant was Rs.1,03,75,808/- and this amount will determine the pecuniary jurisdiction of the Consumer Commission and not the amount claimed by way of refund, as contended by the learned advocate for the respondent.
8) On considering the ratio laid down in the case of Ambrish Kumar Shukla …...V/s….. Ferrous Infrastructural Ltd. (cited supra), also it is clear that the sale consideration alongwith the amount of compensation claimed would determine the pecuniary jurisdiction of the Consumer Commission. Admittedly in the present case though the complainant had claimed refund of Rs.12,00,000/- but the complainant had specifically pleaded in para No.1 that he had booked flat for consideration of Rs.1,03,75,808/- and had paid Rs.5,00,000/- each on two occasions towards sale consideration but thereafter he cancelled the booking. On this aspect Shri Puranik learned advocate has also relied upon one judgment in Misc.Application No.MA/18/288, Mr.R.K.Rarnani…..V/s…… Godrej Landmark Redevelopers Pvt.Ltd. delivered on 16/04/2019 by the State Consumer Commission Mumbai in CC No.18/685. In that case also similar question had arisen before the State Commission at Mumbai and it was observed by the learned Judicial Member that even though the complaint under the Consumer Protection Act was filed for the refund of Rs.45,15,844/- but total sale consideration of the flat will have to be taken into consideration for deciding the pecuniary jurisdiction of the Commission. In that matter also the State Commission had returned the complaint and had also also made reference of several other decisions and it is not necessary to deal with the same in view of the law laid down by the Hon’ble National Commission in the case of Ambrish Kumar Shukla …...V/s….. Ferrous Infrastructural Ltd. (cited supra). As such we hold that the learned District Consumer Commission Nagpur will not have pecuniary jurisdiction to deal with the present complaint and so the order passed by the learned District Consumer Commission Nagpur Dated 29/07/2019 will have to be set aside and the complaint will have to be presented to the appropriate Forum/namely State Commission having jurisdiction for being tried in accordance with law.
// ORDER //
- Revision petition is hereby allowed.
2) Orders passed by the learned District Consumer Forum Nagpur in Consumer Complaint No.380/2018 Dt.29/07/1019 is hereby set aside and the complaint be returned to complainant for being presented to appropriate Forum/Commission for being tried in accordance with law.
- Petitioners and respondents shall bear their own cost.
- Copy of this order be supplied to both parties free of cost.
