Date of filing :21.12.2017

Judgment : Dt.4.12.2018

Mrs. Sashi Kala Basu, President

            This petition of complaint is filed under section 12 of C.P.Act, 1986 by Sri Pradip Kumar Agarwal and Sri Sandip Agarwal alleging deficiency in service on the part of the opposite parties namely (1) Sri Debjit Debnath and (2) Smt. Gita Debnath, (3) Sri Debasish Gangopadhyay and (4) Smt. Swapna Gangopadhyay (Chakraborty) (3 & 4 are Proforma OPs).

            Case of the Complainant, in brief, is that OPs No.1 & 2 being the developers and the Proforma OPs No.3 & 4 the owners, entered into an agreement for sale with the Complainant in respect of a flat on the 2^nd floor at premises No.141/23, Prince Golam Hossain Shah Road, Kolkata under Ward No.93 at a total consideration price of Rs.20,60,000/-. As agreed upon, Complainants paid Rs.14,00,000/- towards part payment of the consideration price. But as the OPs/developer failed to deliver the possession of the flat within the stipulated period, OPs agreed to refund the earnest money of Rs.14,00,000/-, paid by the Complainants. But, they refunded only Rs.5,00,000/- out of Rs.14,00,000/- and have failed to return the remaining Rs.9,00,000/-. Complainants sent a notice through their Ld. Advocate to refund the said amount of Rs.9,00,000/-. But the same was not paid and thus the present complaint has been filed for an order directing the OPs No.1 & 2 to refund the said amount of Rs.9,00,000/-, to pay interest @ 18% and further direction upon the OPs No.1 & 2 to pay Rs.40,000/- as damages.

            OPs No.1 & 2 have filed written version denying the material allegations and have contended that they agreed to refund the said amount of Rs.9,00,000/- after selling the flat in question to any other purchaser as the entire amount has been invested by the OPs in construction of the said flat. Complainants are not entitled to any damages as claimed. On the contrary, due to default on the part of the Complainants regarding non-payment of the balance amount of Rs.6,60,000/- towards consideration price to complete the said transaction relating to the flat, Complainants themselves have violated the agreement. OPs have not rendered any deficiency in service and thus the present complaint is liable to be dismissed.

            Complainants have annexed the documents along with the petition of complaint such as copy of the notice dt.9.11.2017 sent to the developer and a receipt issued by the OPs acknowledging that they are due to pay the amount of Rs.9,00,000/- to the Complainants.

            So the following points require determination:-

1. Whether the present complaint is maintainable in its present form and in law?
2. Whether the Complainants are entitled to the relief as prayed for?

Decision with reasons

            (1)  At the very outset, it may be pertinent to point out that neither party had filed the copy of the agreement entered into between the parties. However, on the date of hearing of the argument, a photocopy of agreement has been filed by the OP, wherefrom it appears that the total consideration price of the flat was Rs.20,60,000/-. It is also apparent from the petition of complaint itself that the OPs No.1 & 2 entered into an agreement to sell the flat at the 2^nd floor of the building at a total consideration price of Rs.20,60,000/-. Complainants in this case have prayed for refund of Rs.9,00,000/- which is due to be paid. But, the question which requires to be considered is whether this Forum can at all allow the said relief? As per Section 11 of the C.P.Act, 1986, District Forum shall have jurisdiction to entertain the complaint where the value of the goods or the services and the compensation, if any, claimed does not exceed Rs.20,00,000/-.

            It has been argued by the Ld. Advocate appearing on behalf of the Complainants that since the relief claimed in this case is only in respect of an amount of Rs.9,00,000/-, the interest of 18% as prayed for and also the compensation of Rs.40,000/- even if added, it will not exceed Rs.20,00,000/-

            According to the Ld. Advocate, while considering the pecuniary jurisdiction of this Forum, the relief actually claimed will only have to take into consideration. It is argued that if the grievance pertains to return of amount of Rs.9,00,000/- and the invest therein, than the total value of the flat will have no bearing while deciding whether this Forum has pecuniary jurisdiction to hear the complaint. But, in this context it may be pertinent to point out that this issue has been put at rest by Hon’ble National Consumer Dispute Redressal Commission in the judgment of Ambrish Shukla vs Ferrous Infrastructure Pvt. Ltd. In the said judgment, the matter came up for consideration before the Hon’ble National Commission, in which along with other issues one of the issue was whether “value of the goods or services and compensation if any claimed” is to be taken as per original value of such goods or services at the time of purchase of such goods or hiring or availing of such services, or such value is to be taken at the time of filing the claim, in question. It has been held by the Hon’ble National Commission in reply to the said issue that “It is evident from a bare perusal of Section 21, 17 and 11 of the Consumer Protection Act that it is 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 the deficiency in the goods purchased or the services 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.”

            So, in view of the said decision of the Hon’ble National Commission, the argument of Ld. Advocate appearing on behalf of the Complainant that actual amount which is claimed by the Complainants along with interest and the amount of compensation, has to be taken into consideration for determination of the pecuniary jurisdiction, cannot be accepted. Thus, as it is apparent from the petition of complaint that the value of the services hired for which the agreement was entered into, was Rs.20,60,000/- which is beyond the pecuniary jurisdiction of this Forum, complaint is not maintainable and as such the same is liable to be returned.

            Thus this point is answered accordingly.

            Point No.2

            In view of the discussion, in point No.1, as the complaint is not maintainable, discussing this point will be redundant.

            Hence ordered

            CC/708/2017 is disposed of as not maintainable. The complaint petition be returned to the Complainants for its presentation before the appropriate Forum.