EMPIRE BUILDERS vs Anthony Xavier Andrade

THE petitioner and complainant had entered into an agreement dated 25.4.1994 for construction and sale of bungalow for consideration of Rs. 6,20,000. After construction of the bungalow, possession of the same was taken over by the complainant on 25.2.1998. However, certain deficiencies/incomplete works were noted in the bungalow and the complainant incurred expenditure for removing the said deficiencies/incomplete works. According to the complainant, he spent more than Rs. 1,50,000 for rectifying the deficiencies/incomplete works. The complainant also asked the petitioner to execute the Coveyance Deed of the bungalow in his favour. The petitioner did not reimburse the amount spent by the complainant, nor executed the Deed of Conveyance in his favour. Accordingly, the complainant approached District Forum for direction to the petitioner/opposite party to reimburse Rs. 1,50,000 as also direction to execute Conveyance Deed of part of the property where bungalow was situated.

THE opposite party had raised various preliminary objections including that the complaint was filed beyond statutory period of 2 years; complaint being for recovery of money, Forum had no jurisdiction; in view of the caluse of arbitration in the agreement, the jurisdiction of the Forum could not be invoked, etc. The matter was also contested by the opposite party on merits.

THE District Forum did not find any merit in the preliminary objections raised by the opposite party. On merits, it was held that the complainant had produced receipts amounting to Rs. 32,376 only and as such he was entitled to reimbursement of the said amount spent to complete the bungalow. The District Forum also gave directions to execute Deed of Conveyance of the bungalow along with proportionate undivided share in the land in favour of the complainant. In addition, a compensation of Rs. 10,000 was ordered to be paid by the opposite party to the complainant. The petitioner filed appeal before the State Commission. The State Commission found that the complainant had produced documents issued between 17.2.1997 to 18.2.1998 or to say before delivery of possession on 25.2.1998. The State Commission found that the complainant had not produced any evidence to support his claim for completing the incomplete works after taking possession of the said bungalow and accordingly set aside the order of the District Forum directing payment of Rs. 32,736. However, directions were given for execution of sale deed, as directed by the Consumer Forum. The compensation of Rs. 10,000 granted by the District Forum was held to be adequate to compensate the complainant for non -execution of the Conveyance Deed. The order of the District Forum was accordingly modified.

THE order of the State Commission is challenged in revision. Learned Counsel for the petitioner was heard in the matter. He urged before us that in terms of Agreement of Sale dated 25.4.1994, the Sale Deed is required to be executed by the builder in favour of the cooperative society or organization which was required to be formed and as such, the directions given by the Fora below to execute the Sale Deed in favour of the complainant cannot be sustained. He also raised the question of pecuniary jurisdiction and submitted that the District Forum could not have entertained the complaint as it did not have pecuniary jurisdiction inasmuch as the value of the bungalow in respect of which directions have been given to execute the Sale Deed is Rs. 6.20 lakh and besides that the complainant had claimed relief of Rs. 1,50,000 in respect of the expenses incurred on repairs.

WHEN the learned Counsel for the petitioner was asked as to whether the Cooperative Society has been formed, he submited before us that he has no instructions. The State Commission had dealt with this issue in Para 9 of its judgment, which reads as under: "The appellant -original party has contended that the agreement between the parties does not envisage execution of Sale Deed with individual purchasers and that conveyance would be executed in favour of the Cooperative Society after sale of all the premises in the project. We do not accept this contention of the opposite party. The agreement was executed in the year 1994 and possession of the suit bungalow was taken in Feburuary, 1998. It is now over seven years that the complainant has taken possession. The complainant cannot be expected to wait in perpetuity for the opposite party to sell all the bungalows in the project and then to form the Cooperative Society and then to have a Conveyance Deed executed in favour of the Society. There is no dispute that the complainant has paid the entire consideration of his bungalow. As such the complainant is entitled to have the title of the bungalow and land appurtenant as demarcated conveyed in his favour within a reasonable time after taking possession. It is also pertinent to note that Clause 7 of the agreement does not impose any obligation on the opposite party to form the Cooperative Society and it merely says that the opposite party shall cooperate with the purchasers in formation of such society and that too after all the buyers have made the full payments. In our considered opinion, the complainant would severally prejudiced and would be unable to properly utilize his asset without a proper title."

THE findings of the State Commission are just, reasonable and equitable and there is no reason for us to interfere with the same.

IN respect of the argument relating to pecuniary jurisdiction, it is pertinent to note that though the petitioners had taken a large number of preliminary objection, yet no objection was raised as to the pecuniary jurisdiction of the District Forum. Objection relating to jurisdiction is required to be taken in the Fora in the first instance at the earliest possible opportunity and principles analogous to Section 21, CPC would be applicable. We have already pointed out that the petitioner did not raise any objection to the pecuniary jurisdiction of the District Forum even though several other objections were taken. The Apex Court in Kiran Singh v. Chaman Paswan, AIR 1954 SC 340, while dealing with objections as to jurisdiction, both territorial and pecuniary jurisdiction, has laid down as under: "The policy underlying Sections 21 and 99, CPC 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 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."

[Emphasis supplied)

THE Apex Court in Pathumma v. Kuntalan Kutty, AIR 1981 SC 1683 (1684) and R.S.D.V. Finance Co. (P) Ltd. v. Vallabh Glass Works Ltd., AIR 1993 SC 2094, has laid down that following 3 conditions must be fulfilled in order to entertain objection(s) as to the place of suing, namely: (i) The objection was taken in the Court of first instance;

(ii) It was taken at the earliest possible opportunity and in cases where issues are settled at or before settlement of issues; and

(iii) There has been a consequent failure of justice.

THE principles laid down by the Apex Court will apply with equal force in the matters before the Consumer Forums. These principles would also apply to objections relating to the pecuniary jurisdiction.

THE petitioner had raised issue relating to pecuniary jurisdiction before the State Commission. However, since the same was not raised at the earliest opportunity available namely in the written statement filed by the petitioner, the same could not obviously be entertained by the State Commission at the appellate stage. Even otherwise, we are of the opinion that nominal notional value in relation to the prayer for execution of the Sale Deed could be taken inasmuch as the possession of the bungalow had already been handed over to the complainant much prior to the filing of the complaint before the Consumer Forum. The State has awarded compensation of Rs. 10,000 on account of non -execution of the Conveyance Deed.

IN the light of the above, the objection raised by the petitioner regarding pecuniary jurisdiction has no merit. The Fora below were justified in the facts and circumstances of the case in directing the petitioner to execute the Sale Deed of the bungalow in favour of the complainant as also directions to pay compensation of Rs. 10,000 for non -execution of the same.

FOR the aforesaid reasons, we do not find any merit in this petition nor any reason or justification to interfere in exercise of revisional jurisdiction under Clause (b) of Section 21 of the Consumer Protection Act, 1986. The revision is accordingly dismissed with no order as to costs. R.P. dismissed.