Judicial Analysis Court Copy Headnote Facts Arguments Court observation

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Prem Narain, Presiding Member
Treaty Constructions and Anr. —Appellant
versus
Ruby Tower Co-Op. HSG.
Society Ltd. and Ors. —Respondents
First Appeal No.109 of 2015
(Against the Order dated 17/12/2014 in Complaint No. 120/2005 of the State Commission Maharashtra)
Decided on 7.3.2018

Counsel for the Parties:
For the Appellant:Shri Zaid Ansari, Advocate
For the Respondent No.1:Shri Uday B. Wavikar and Shri Vikas Nautiyal, Advocates
For the Respondent Nos.2 to 12: Ex parte
For the Respondent No.13: Ex parte

IMPORTANT POINT
Technical objection of pecuniary jurisdiction cannot be raised after adjudication of matter on merits.

Headnote:(A) Consumer Protection Act, 1986—Sections 17, 19 and 21—Real estate—Purchase of flats by members of society—Occupancy certificate not obtained by OP-1/appellant, even after a decade of construction of building—Complaint partly allowed by State Commission—There is no proof that money has been paid to appellant—State Commission has ordered only on presumption—OP/appellant herein cannot be saddled with responsibility to refund amount of Rs.26,25,000/- to complainant as loan repayment—However, appellant has admitted that he had agreed to pay Rs.25 lakhs to complainant for deficiency in service—This amount has not been paid by OP to complainant—Appellant No.1 is liable to pay Rs.25 lakhs to complainant as per his own admission—Besides, possession should not have been handed over to members of complainant society without obtaining occupancy certificate and this is a clear unfair trade practice—Not obtaining occupancy certificate is deficiency on part of OP/ appellant—There has to be a reasonable time for execution of conveyance deed in favour of Society—As purchasers have paid full consideration of flats, they are entitled to have legal possession and legal right and title—Impugned award modified. (Paras 10 to 13 and 15)
       (B) Jurisdiction—Territorial and Pecuniary Jurisdiction—Objection to such jurisdiction has to be taken at earliest possible opportunity and in any case at or before settlement of issues—If such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage—As matter has now been decided by State Commission on merits, technical objection of pecuniary jurisdiction cannot be raised at this stage. (Para 14)
       Result: Appeal disposed of.

ORDER

This first appeal has been filed by the appellants, M/s. Treaty Constructions & Anr. against the order dated 17.12.2014 passed by the State Consumer Disputes Redressal Commission, Maharashtra, Mumbai (for short, ‘State Commission’) in C.C. No.05/120 which was filed by the complainant /respondent no.1 herein.

2. Brief facts of the case are that the members of Respondent no.1 Society purchased flats having been constructed by appellants who completed the project on their land. The members purchased flats by executing sale deeds from 1994 to 2002. The possession was given to the members even though interior of the flats were not complete. The society took up the matter with the OPs as Appellant no.1 did not complete the works and could not get the completion certificate as well as occupancy certificate. The Society collected amounts from members and spent about Rupees one crore in completing the left over works of the flats. The society was demanding the reimbursement of the spent money from appellant no.1. In a meeting held on 17.3.2003 the appellant no.1/OP-1 agreed to reimburse Rs.25 lakhs to the society. However, this promise did not materialize. The occupancy certificate was not obtained by OP-1/appellant, even after a decade of construction of the building. Therefore, the complainant society/respondent no.1 herein filed a consumer complaint before the State Commission.

3. The complaint was resisted by the OP-1/appellant. However, the State Commission partly accepted the complaint and allowed the same vide its order dated 17.12.2014, which reads as under:

Order

1. Complaint is partly allowed.

2. Opponents, jointly and severally, are directed execute Deed of Conveyance, by obtaining completion certificate and occupation certificate for transferring rights, interest and title of building and piece of land bearing Survey No.22, Hissa No.7, and bearing C.T.S.Nos.99, (1 to 16) and assessed by Municipal Corporation of Greater Bombay in Ward No.KN 150512-00 No.K-5125 (1-2) 89A, 90, K-5125 (3) 898, K-5126 (1), 88 and K-5126 (3) 8890, in favour of complainant society within period of 90 days from date of the this order, failing which opponent shall pay Rs.1,000/- per day to the complainant society from the date of this order till compliance.

3. Opponents, jointly and severally, are directed to pay Rs.26,25,000/- [amount illegally collected for handing over the possession of the flats] along with interest @ 9%p.a. effective from the date of filing of complaint i.e. 04/10/2005 within period of 90 days from the date of this order, failing which the rate of interest shall be payable @12% p.a. from 04/10/2005 till its realization.

4. Opponents shall bear their own costs and pay costs of Rs.50,000/- to the complainant society within period of 90 days from the date of this order.

5. Certified copies of this order be furnished to the parties.

4. Hence, the present appeal.

5. Heard the learned counsel for the appellants as well as of the respondent no.1 and perused the record. Respondents No.2 to 12 did not appear despite service of notice and they were proceeded ex parte vide order dated 18.10.2016 of this Commission. Similarly respondent No.13 was proceeded ex-parte vide order dated 3.3.2016.

6. The learned counsel for the appellant no.1 stated that the State Commission has ordered for refund of Rs.26,25,000/- treating it as loan taken from the members of the society, whereas the fact is that no money was received by the appellant builder. All the receipts are signed by the President of the society. The learned counsel further mentioned that Mohd. Hanif Latif Menon, President of the society was made a party i.e. OP-17 in the complaint case, however, his name was deleted on the request of the complainant. The complainant has alleged that the President was hand-in-gloves with the builder. If this was the case, the name of the President from the array of parties should not have been deleted by the complainant. It clearly means that t

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Judicial Analysis

SupremeToday

IMPORTANT POINTTechnical objection of pecuniary jurisdiction cannot be raised after adjudication of matter on merits.

Judicial Analysis

IMPORTANT POINT
Technical objection of pecuniary jurisdiction cannot be raised after adjudication of matter on merits.