AI Structured Summary
Not yet generated for this judgment
Judgment
This revision petition has been filed by the petitioner, Manager, Lavanya Project Pvt. Ltd. against the order dated 05.04.2017 of the State Consumer Disputes Redressal Commission, West Bengal, (in short 'the State Commission') passed in FA No.A/979/2015.
Brief facts of the case are that the respondent Nos.1 & 2/complainants booked a flat with the petitioner/opposite party No.2 for total consideration of Rs.36,00,500/-. It is the case of the petitioner that Rs.3,71,176/- was paid on 23.07.2013 and another amount of Rs.5,56,763/- was paid on 08.08.2013. After that several letters and reminders were sent to the respondent Nos.1 & 2/complainants for depositing the remaining amount. However, complainants could not deposit the same and therefore, the petitioner/opposite party No.2 cancelled the allotment on 16.08.2013 and refunded the amount after deducting 5% of the total cost of the apartment to the complainants. Aggrieved with the deduction of 5% amount, complainants filed a consumer complaint case being No.CC/123/2015 before the District Forum. The complaint was resisted by filing the written statement. However, the District Forum vide its order dated 06.08.2015 allowed the complaint and passed the following order:-
"That the complaint be and the same is allowed on contest with cost of Rs.5,000/- each against each of the OPs.
OP No.1 is hereby directed to close and clear the loan account of the complainant and refund Rs.25,000/- out of received process fees and Rs.24,200/- which has been deducted as EMI from the complainant along with compensation of Rs.5,000/- to the complainant within one month from the date of this order.
OP No.2 is hereby directed to refund entire amount of Rs.1,80,025/- and also to pay compensation of Rs.10,000/- to the complainant within one month from the date of this order.
For adopting unfair trade practice and for deceiving the complainant in such a manner and further for cancelling the sale agreement violating the general terms and conditions unilaterally by the OP No.2, OP Nos.1 & 2 shall have to pay penal damages to the extent of Rs.15,000/- to this Forum and it is imposed for the purpose of protecting the interest of the customer form the hands of such deceitful traders and also for controlling unfair trade practice as practiced by the OPs in the present case and in the market jointly.
OPs are directed to comply their respective part of the decree within one month from the date of this order, failing which for non-compliance and disobeyance of the Forum's order, they shall be prosecuted u/s 25/27 of the C.P Act, 1986 and for which further penalty and fine shall be imposed."
Aggrieved by the order dated 06.08.2015 of the District Forum, the opposite party No.2 preferred an appeal being No.A/979/2015 before the State Commission. The State Commission, however, dismissed the appeal and upheld the order of the District Forum.
Hence the present revision petition.
Heard the learned counsel for the parties and perused the record. Learned counsel for the petitioner argued that the total consideration of the flat was Rs.36,00,500/- and therefore, the District Forum did not have the jurisdiction to decide the complaint as per the decision of the larger Bench of this Commission in Consumer Case No.97 of 2016, Ambrish Shukla and Ors. Vs. Ferrous Infrastructure Pvt. Ltd., decided on 07.10.2016 (NC). It was argued that the District Forum was duty bound to see whether it had the pecuniary jurisdiction to try and decide the complaint filed. It was pointed out by the learned counsel in the written statement that the objection was raised with regard to maintainability of the complaint under Section 11 and 12 of the Consumer Protection Act, 1986 as would be clear from the following portion:-
"1. That the application under Sec 11 and 12 of the C.P.Act filed by the complainant herein after referred to as the said petition is neither maintainable in law nor in the facts and circumstances of the present case."
From the above averments made in the written statement, it was clear that the issue of jurisdiction was raised before the District Forum. The State Commission in its order dated 05.04.2017 has observed that the issue of pecuniary jurisdiction was not raised before the trial forum and therefore, it cannot be raised at the appellate stage and the State Commission relied upon the judgment of the Hon'ble Supreme Court in Harshad Chiman Lal Modi Vs. D.L.F. Universal Ltd. & Anr., (2005) 7 SCC, 791. Learned counsel argued that decision of the larger Bench of this Commission in Ambrish Shukla and Ors. Vs. Ferrous Infrastructure Pvt. Ltd. (supra), was not there at that time and therefore, the specific plea was not taken in the written statement in respect of pecuniary jurisdiction. However, when the matter was pending before the State Commission, the judgment in the matter of Ambrish Shukla and Ors. Vs. Ferrous Infrastructure Pvt. Ltd.,(supra) had come by then and the same was pleaded before the State Commission. The State Commission has not agreed with the pleading of petitioner/appellant in this regard and has given a finding that this judgment is not applicable in the present case. Learned counsel further stated that if an order is passed without jurisdiction, the order becomes nullity. In this regard, learned counsel filed the following judgement to support his arguments:-
Ramesh Kumar Sihan Hans vs. Goyal Eye Institute & Anr. , CC No.135 of 2011, decided on 30.03.2012 (NC). It has been held that:-
"7. There cannot possibly be any quarrel with the above state legal proposition but the crucial question which arises for consideration is as to whether this Commission or for that reason any other consumer fora established under the provisions of Consumer Protection Act, 1986 (in short, the Act) must entertain the complaint simply going by the value of the claim made by the complainant, howsoever, exaggerated or unrealistic it may be or it has a duty to examine whether the complaint falls within or outside its pecuniary jurisdiction. Section 12(3) of the Act provides the procedure to be followed by a District Forum, State Commission or National Commission on receipt of a complaint. It envisages examination of the complaint with a view to find out if going by the averments and allegations made in the complaint, complaint is fit to be admitted and proceeded with. Such examination of the complaint would require consideration of the following aspects:
(i) Whether complainant is a consumer within the meaning of section 2(1) (d) of the Act and is entitled to invoke the original jurisdiction of a consumer forum;
(ii) Whether the complaint raises one or more consumer dispute viz., unfair trade practice or restrictive trade practice, defects in goods or deficiency in service as defined under the Act;
(iii) Whether consumer forum has territorial and pecuniary jurisdiction to entertain the complaint;
(iv) Whether the complaint has been filed within the period of limitation as prescribed by section 24(a) of the Act; and:
(v) Whether complaint is accompanied with such amount of fee as has been prescribed.
Section 11(a), 17(1)(a) and 21(a) of the Act prescribe the limit of pecuniary jurisdiction of District Forum, State Commission and National Commission. Section 11(1) of the Act provides that subject to the other provisions of the Act, the District Forum shall have jurisdiction to entertain complaints where value of goods or services and the compensation, if any, claimed does not exceed Rs.20 lakh. Similarly section 17(1)(a) provides that where value of goods and claim exceeds Rs.20 lakhs but does not exceed Rupees One Crore can be filed before the State Commission. By virtue of Section 21 (a), the National Commission is vested with the original jurisdiction to entertain complaints where the value of goods or services and compensation, if any, exceeds Rupees Once Crore.
In our view, a Consumer Fora whether it is District Forum, State Commission or National Commission must consider the question whether the complaint so filed before it is within its pecuniary jurisdiction besides satisfying itself about the maintainability of the complaint on other parameters."
On the above observation of this Commission, it was submitted by the learned counsel for the petitioner that the trial forum has to examine the complaint and to decide whether the complaint is entertainable before the trial forum on the basis of the pecuniary jurisdiction or not. Clearly in the present case, the total consideration was more than Rs.20,00,000/- and therefore, the District Forum was not authorised to entertain the present complaint as has now been clarified by the larger Bench of this Commission in the matter of Ambrish Shukla and Ors. Vs. Ferrous Infrastructure Pvt. Ltd. (supra).
On merit learned counsel for the petitioner argued that both the fora below have not considered the terms and conditions mentioned in the application form itself and the same was accepted by the complainant. The learned counsel specifically referred to 1 (a) of the following General Terms and Condition:
"1. Applicant(s) may withdraw application at any time as per following procedure:
(b) Before the execution of agreement for sale: @ 5% of the apartment value: plus car parking will be deductible from the payments made till the date of cancellation and balance will be refunded."
On the basis of the above condition, the learned counsel pointed out that after the cancellation, the opposite party No.2/petitioner was entitled to deduct 5% of the apartment cost and no illegality has been committed by the petitioner. Terms and Conditions of the application are binding on both the parties and consumer cannot change the nature of the agreement. Both the fora below have not appreciated this aspect.
On the other hand, learned counsel for the respondent Nos.1 & 2/complainants stated that the condition 1(a) of the application form is applicable only when complainant/applicant withdraws his application, whereas in the present case, the complainant has not withdrawn his application rather the opposite party No.2/petitioner has cancelled the allotment in order to sell same property to a third party at a higher price. The learned counsel for the complainant mentioned that a loan of Rs.25,00,000/- were sanctioned by respondent No.3. However, the disbursement was not possible for the full amount as the flat was not complete due to deficiency on the part of the petitioner. Hence, the loan was not disbursed to the opposite party No.2. Had the building been complete, the total amount of Rs.25,00,000/- would have been disbursed to the opposite party No.2. Thus, it is not a fact that complainant defaulted in making payment rather opposite party No.2 defaulted in completing the building and respondent No.3 did not disburse the loan only on the structure that was present at that time. In nutshell, the main argument of the learned counsel for the complainant was that condition 1(a) is not applicable in the present case.
Learned counsel further stated that respondent No.3, who was to finance the loan to the complainant, has also submitted their written statement before the District Forum that the loan was to be disbursed as per the progress made in the construction and there was no sufficient work progress in the construction. Petitioner/opposite party No.2 cannot charge more than the progress made in the construction as per the payment plan and therefore petitioner/opposite party No.2 was not authorised to cancel the allotment of the complainant.
Learned counsel for the complainant further stated that the complaint was filed only for Rs.1,80,025/- and the same was well within the pecuniary jurisdiction of the District Forum. Though the argument based on the decision of the larger Bench in Ambrish Shukla and Ors. Vs. Ferrous Infrastructure Pvt. Ltd. (supra) was raised before the State Commission by the petitioner, however, the State Commission has not found merit in that argument and has relied upon the judgment of Hon'ble Supreme Court in Harshad Chiman Lal Modi Vs. D.L.F. Universal Ltd. & Anr. (2005) 7 SCC 791 that the objection relating to jurisdiction should have been taken before the trial forum. It is clear from the written statement filed by the opposite party No.2/petitioner that no such objection was raised before the District Forum and therefore, District Forum decided the complaint.
Learned counsel for the respondent No.3 stated that the District Forum has passed order against respondent No.3 as well. However, they complied with the order just to avoid further litigation. District Forum has clearly recorded the version of the respondent No.3/opposite party No.1 as follows:-
"OP No.1 also stated that as per terms and conditions of the loan agreement, the loan was disbursed by taking into consideration the progress of work of the project as there was no sufficient work progress on the date of property inspection, so, the disbursement was processed on the basis of percentage of work progress and not as per demand raised by the developer."
From the above, learned counsel for the respondent No.3 stated that due to slow progress in construction, the loan amount could not be disbursed as per the demand raised by the developer and for that deficiency on the part of the petitioner, opposite party No.1 has also suffered along with the complainant as opposite party No.1 had to make payment as per the order passed by the District Forum.
I have given a thoughtful consideration to the arguments advanced by the learned counsel for the parties and have examined the material on record. First of all, it is seen that no plea was taken by the petitioner in the written statement filed before the District Forum specifically objecting to the pecuniary jurisdiction of the District Forum to entertain the present complaint. The mention of question of maintainability in the written statement as pointed out by learned counsel for the petitioner does not amount to raising an objection on the issue of pecuniary jurisdiction. The Hon'ble Supreme Court in the matter of Chitturi Subbanna Vs. Kudapa Subbanna & Ors. 1965 AIR 1323, has held:-
'This point now raised before us is not one purely of law but a mixed question of fact and law. No specific ground has even been taken in the petition made by the appellant before the High Court for grant of a certificate on the ground that the suit was barred by time. In the circumstances, we decline leave to the appellant to raise the point of limitation before us."
The Hon'ble Supreme Court further in Bahrein Petroleum Co. Ltd V. P.J. Pappu and another, 1966 AIR 634 has held the following:-
"The policy underlying sections 21 and 99 of the Civil Procedure Code and section 11 of the Suits Valuation Act is the same, namely, that when a case had been tried by a Court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in a failure of justice, and the policy of the Legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate Court, unless there has been a prejudice on the merits."
The State Commission has relied upon the judgment of the Hon'ble Supreme Court in Harshad Chiman Lal Modi Vs. DLF Universal and Anr., AIR 2005 SC 4446, wherein the Hon'ble Apex Court has held as follows:-
"So far as territorial and pecuniary jurisdictions are concerned, objection to such jurisdiction has to be taken at the earliest possible opportunity and in any case at or before settlement of issues. The law is well settled on the point that if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage".
On the basis of the above judgments of the Hon'ble Supreme Court, it is clear that the issues relating to pecuniary jurisdiction has to be raised before the trial forum and if the matter is decided by the trial forum on merits, then the decision cannot be set aside on the basis of any irregularity in the exercise of pecuniary jurisdiction. Thus, the State Commission was right in dismissing the plea of pecuniary jurisdiction as the same was not specifically pleaded by the petitioner/opposite party No.2 before the District Forum and the order has been passed by the District Forum on merits. As the decision of the larger bench of this Commission in Ambrish Shukla and Ors. Vs. Ferrous Infrastructure Pvt. Ltd. (supra) was not there when the matter was proceeding before the District Forum, obviously there was no question of raising the plea of pecuniary jurisdiction before the District Forum and obviously the District Forum was fully competent to exercise the pecuniary jurisdiction as the value of relief sought was Rs.1,80,000/-.
On the basis of the above examination and relying on the authoritative judgements of the Hon'ble Supreme Court in Chitturi Subbanna Vs. Kudapa Subbanna & Ors (supra) and Bahrein Petroleum Co. Ltd V. P.J. Pappu and another (supra), I am of the view that the State Commission has rightly dismissed plea of the petitioner in respect of the pecuniary jurisdiction.
Coming to the merits of the case, it is seen that the condition 1(a) of the terms and conditions of the application form seems to be implying that if the applicant withdraws his application then this condition will become applicable. A question was specifically put to the learned counsel for the petitioner, if there is any other condition which entitles the opposite party to deduct any amount if the allotment is cancelled by the opposite party without any application from the complainant, it was replied by the learned counsel that there was no such provision. Thus, if any eventuality is not mentioned in the agreement, then the trial forum or the appellate forum would be competent to take decision on merits and the same has happened in the present case. Both the fora below have given concurrent finding on facts and the facts cannot be reassessed at the level of this Commission in revision petition as held by Hon'ble Supreme Court in Lourdes Society Snehanjali Girls Hostel and Ors. Vs. H&R Johnson (India) Ltd. and others, (2016) 8 Supreme Court Cases 286, wherein, the Hon'ble Supreme Court has observed the following:
"23. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons."
The only legal question raised by the petitioner is in respect of condition No.1(a) of the terms and conditions of the application form. On examination above, it has been found that this condition would not be applicable in the present case. The cancellation was done suo moto by the opposite party and not on any application from the complainant.
On the basis of above examination, I find that the plea of the petitioner in respect of pecuniary jurisdiction of the District Forum is not tenable. On merits, the claim of the petitioner for deducting 5% of the apartment cost is not found justified. Accordingly, I do not find any illegality, material irregularity or jurisdictional error in the order dated 05.04.2017 of the State Commission, which calls for any interference from this Commission. Consequently, RP No.1411 of 2017 is dismissed.