LIBORD FINANCE LTD vs SHIV SAI CONSTRUCTIONS & ORS

J.M. Malik, Presiding Member

[1] The key controversy pivots around the question, whether, the State Commission had the pecuniary jurisdiction to try these cases before the amendment of the C.P. Act and if not so, what is its impact.

[2] This order shall decide all the three appeals, detailed above, because, these arise out of the same order, rendered by the State Commission, Maharashtra. The State Commission came to the following conclusion :- "Apart from that it is the duty of the Consumer Fora to see whether complaint filed is within the jurisdiction of the Forum where the complaint was filed. It appears that concerned officials and even the Members of this Commission have not noticed that pecuniary jurisdiction of the complaint is more than Rs.20 Lakhs and because of that complaints were registered. However, it is material to note that complainant in each complaint is responsible for that. The reason is that in the complaint, it is specifically mentioned that total claim amount is less than Rs.20 Lakhs. Considering said recital, the concerned officials and even the Members of this Commission would have prima-facie accepted that the complaints are within the pecuniary jurisdiction of this Commission and it is because of that initially this point was not dealt with. It is because of that mistake or mischief committed by the complainant; the complaints were lingering from 2001 to 2015. It is because of this reason also the complaints are to be returned to the complainants as this Commission has no pecuniary jurisdiction to entertain these complaints. Hence, we answer Point No.1, accordingly".

[3] The learned counsel for the Appellants vehemently argued that this is only a technical mistake. The order passed by the State Commission should be set aside, cases be remanded and State Commission should be directed to decide the cases on merits. He submitted that the main complaint was made against the first five OPs, who did not raise any objection in their written versions. Only in the year 2012, OP6 raised the objection, for the first time.

[4] It must be borne in mind that the Complainants, three different companies, incorporated under the Companies Act, 1956, in FA No. 502/2015, FA No. 503/2015 and FA No. 504/2015, filed three separate complaints, wherein each of the complainant has booked four flats, two flats and six flats, respectively. Cost of each flat was priced at Rs.11,50,000/-.

[5] The learned counsel for the Appellants submitted that so far as objection regarding territorial and pecuniary jurisdiction is to be taken, it has to be taken at the earliest possible opportunity, and in any case, at or before settlement of the issues. Again, the law is well settled on that point, that, if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage. He has cited few authorities reported in Civil Appeal No.5721 of 2006, dated 12.12.2006, Hasham Abbas Sayyad Vs. Usman Abbas Sayyad & Ors., CDJ 2009 (Cons) NCDRC, 11.02.2009, Empire Builders Vs. Anthony Xavier Andrade, 1954 AIR(SC) 340 Kiran Singh Vs. Chaman Paswan, 1981 AIR(SC) 1683 Pathumma Vs. Kuntalan Kutty, 1993 AIR(SC) 2094 RSDV Finance Co. (P) Ltd. Vs. Vallabh Glass Works Ltd, CDJ 2013, Mad HC 4417, dated 30.09.2013, Gandhimathi & Ors. Vs. P. Baby & Ors. CDJ 2010 DHC 1042, dated 31.05.2010, Sunita Rajput & Ors., Vs. Yogender Ratawal & Ors. CDJ 2012 Ker HC 967, dated 20.09.2012, G. Soman, Managing Partner, Kottarakkara Vs. M/s. ECE Industries Ltd., New Delhi & Anr., Laws (Chh) 2008-3-15, HC Chhatisgarh, dated 31.03.2008, Tapan Kumar Rai Vs. Ashok Kumar Rai.

[6] Secondly, the counsel for the Appellants contended that if limit of pecuniary jurisdiction is raised, only then, the authority is allowed to pass the order. This view was held in CDJ 2005 SC 537, dated 25.07.2005, National Insurance Co. Ltd. Vs. Harjeet Rice Mills, CDJ 1988 Bom HC 083, dated 26.10.1988, Naraindas Mathuradas Narielwala Vs. Mukesh & Co., CDJ 2003 (Cons) NCDRC Case No. 007, dated 05.05.2003, Amardeep Singh Hira & Ors. Vs. Chandigarh Administration & Ors., Laws (Chh) 2008-3-15, HC Chhattisgarh, dated 31.03.2008, Tapan Kumar Rai Vs. Ashok.

[7] In the alternative, it was argued that the Suit can be amended. It is not necessary to file separate plaint. Learned counsel for the appellants has cited the following authorities. CDJ 2000 SC 1513, dated 04.04.2000, Bijoyo Kumar Pattanaik Vs. Basanta Kumar Patnaik & Ors., 194 AIR(All) 209 dated 22.01.1941, Inder Bahadur Singh Vs. Sitaram & Ors., and Khadar Sahib Vs. Chotibibi (84) 8 Bom. 616.

[8] This is an admitted fact that if, in case, the complaint is filed today, it will become difficult to hold that the complainant is a consumer, in view of the amendment of the C.P.Act, 1986, dated 15.03.2003. The learned counsel for the Appellants argued that the ''commercial purpose amendment'' is prospective and not retrospective, as was held by this Commission in Tata Iron & Steel Co. Ltd. Vs. Biswanath, NCDRC, decided on 23.04.2013 and in Birla VCL Ltd. Vs. National Insurance Co. Ltd., NCDRC, dated 29.05.2003.

[9] The last submission made by the counsel for the Appellants was that delay in completing the case will go a long way to defeat the object of the Act. In order to buttress his argument, the counsel for the appellants, has cited an authority in Charan Singh Vs. Healing Touch Hospital & Ors., 2010 SC (Civil) Appeal No. 767 of 2000, dated 20.09.2010.

[10] We find it difficult to countenance the arguments urged by the counsel for the Appellants. It must be borne in mind that the consumer courts have to work within the frame-work of the C.P.Act, 1986. The CPC or the Rules applicable therein have no application to the facts of this case. The Hon''ble Supreme Court in the case of Rajeev Hitendra Pathak & Ors., Vs. Achyut Kashinath Karekar & Another, Civil Appeal No. 4307 of 2007, decided on 19.08.2011, placed reliance on other authorities in Para No.23 of its judgment, as under : "23. Learned senior counsel for the appellants also relied on M/s Eureka Estates (P) Ltd. v. A.P. State Consumer Disputes Redressal Commission and Others, 2005 AIR(AP) 118 in which the Court observed that the District Forums and the State Commissions are entitled to exercise only such powers which are specifically vested in them under the Act and the Rules".

and the finding was given at Para Nos. 36 and 37 of its judgment, which are reproduced here, as under :-

"36. On careful analysis of the provisions of the Act, it is abundantly clear that the Tribunals are creatures of the Statute and derive their power from the express provisions of the Statute. The District Forums and the State Commissions have not been given any power to set aside ex parte orders and power of review and the powers which have not been expressly given by the Statute cannot be exercised.

The legislature chose to give the National Commission power to review its ex parte orders. Before amendment, against dismissal of any case by the Commission, the consumer had to rush to this Court. The amendment in Section 22 and introduction of Section 22-A were done for the convenience of the consumers. We have carefully

ascertained the legislative intention and interpreted the law accordingly".

[11] In the case of Civil Appeal No. 5476 of 2013 (SLP (C ) No. 11381 of 2012), decided on 11.07.2013, titled as Dr.Jag Mittar Sain Bhagat Vs. Director, Health Services, Haryana & Ors., the Hon''ble Apex Court has held, as under :- "7. Indisputably, it is a settled legal proposition that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior Court, and if the Court passes a decree having no jurisdiction over the matter, it would amount to nullity as the matter goes to the roots of the cause. Such an issue can be raised at any stage of the proceedings. The finding of a Court or Tribunal becomes irrelevant and unenforceable/ inexecutable once the forum is found to have no jurisdiction. Similarly, if a Court/Tribunal inherently lacks jurisdiction, acquiescence of party equally should not be permitted to perpetuate and perpetrate, defeating the legislative animation. The Court cannot derive jurisdiction apart from the Statute. In such eventuality the doctrine of waiver also does not apply. (Vide: United Commercial Bank Ltd. v. Their Workmen, 1951 AIR(SC) 230 Smt. Nai Bahu v. Lal Ramnarayan & Ors., 1978 AIR(SC) 22 Natraj Studios (P) Ltd. v. Navrang Studios & Anr., 1981 AIR(SC) 537 and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar & Ors., 1999 AIR(SC) 2213.

In Sushil Kumar Mehta v. Gobind Ram Bohra (Dead), 1990 1 SCC 193, this Court, after placing reliance on large number of its earlier judgments particularly in Premier Automobiles Ltd. v. K.S. Wadke & Ors., 1976 1 SCC 496; Kiran Singh v. Chaman Paswan, 1954 AIR(SC) 340 and Chandrika Misir & Anr. v. Bhaiyalal, 1973 AIR(SC) 2391 held, that a decree without jurisdiction is a nullity. It is a coram non judice; when a special statute gives a right and also provides for a forum for adjudication of rights, remedy has to be sought only under the provisions of that Act and the Common Law Court has no jurisdiction; where an Act creates an obligation and enforces the performance in specified manner, "performance cannot be forced in any other manner".

[12] First of all, it is the duty of the State Commission to find out, whether, it has got the jurisdiction or not. When the appeal is obviously and apparently depicting that the jurisdiction does not lie with the State Commission, it was the duty of the Registrar to point out these questions before the President. It is unfortunate that the State of Maharashtra does not care for the facilities of the President, Staff as well as the District Forum. The State Government itself is responsible for the same. It is unfortunate that the State Government does not have full staff in the state of Maharashtra or has staff in intervals. It is the duty of the State Commission to find out, whether, the State Commission has got the pecuniary jurisdiction or not. Due to deficiency on the part of the State Government, this case stood procrastinated for a period, for as many as 14 years. This shows the negligence, inaction and passivity on the part of the State Government. If the staff is not provided what is the use of such benevolent legislation. It appears that the people are taken for a ride.

[13] Succinctly stated, this is due to lack of staff that the main point was taken before the President in such a laggardly manner. At the same time, it also shows the smartness on the part of the complainant. The appellant/complainant is caught in pincer of its own making. One is required to approach the Commission with clean hands. The attempt to pull the wool in the eyes of law mostly fails.

[14] The OP 3 took the specific objection in para 14 of the written statement. The same was filed on 21.03.2011 before the case was decided. Same objection was taken by the OP4 in its para No.3. OP5 also took the same objection in its para No.3. Consequently, the arguments canvassed by the counsel for the appellant/complainant that the other OPs did not set up this plea, pales into insignificance. Mr. Vivek Jain, Partner/Manager of OP1, sworn an affidavit, which clearly, specifically and unequivocally stated that the complainant had booked a number of flats and the price of each flat was Rs.11,50,000/-.

[15] The argument advanced by the counsel for the Caveator/ Respondents, that the OPs had gone before the State Commission in respect of interim order but those appeals were dismissed and this Commission did not point out that it was a case of higher pecuniary jurisdiction, is bereft of merit.

[16] We see no force in this argument. This was not the question in issue, before this Commission. This Commission had no occasion to apply its mind regarding this question. No arguments were raised before it. That matter was never adjudicated by this Commission. Consequently, this argument has to be eschewed out of consideration.

[17] The counsel for the appellants has invited our attention towards the following judgments of this Commission, wherein, due to lack of jurisdiction, the complaint was returned. M/s. Omaxe Ltd. Vs. Ms. Iqbal Begum, FA 887/2013, pronounced on 16.05.2014, authored by Hon''ble Mr. Justice K.S.Chaudhary, Mr. Somendar Gautam Vs. Ansal Housing & Construction Ltd., Consumer Complaint No.111 of 2007, pronounced on 16.12.2014, authored by Hon''ble Mr. Justice V.K.Jain. The facts of the said authorities are wee bit similar to the facts of the present case. In CC 111/2007, at para No.9, of the judgment, it was held as under :- "The aforesaid decision, in our view, is of no help to the complainant considering that even after adding the gross compensation claimed by him, to the market value as determined, on the basis of the circle rates, this Commission would not have jurisdiction to entertain the present complaint. The complainant has to blame only himself for creating a situation, where the complaint filed by him has to be returned, after seven years. He ought to have filed it before the State Commission, in the first instance, itself".

[18] Similar view was taken in Country Colonisers Pvt. Ltd. Vs. Priti Kapur & 2 Ors., RP 885/2012, authored by Hon''ble Mr. Justice R.C.Jain, dated 13.07.2012, Gurbax Singh Bains Vs. M/s. Omaxe Chandigarh Extension Developers Pvt. Ltd. & Anr., authored by Hon''ble Mr.Justice V.K.Jain, dated 13.10.2014, Kumari Lama Vs. The General Manager, ICICI Bank, RP No.3755 of 2014, authored by Hon''ble Dr.B.C.Gupta, pronounced on 05.11.2014, Quality Foils India Pvt. Ltd., Vs. Bank of Madura Ltd. & Anr., FA 653 of 1993, decided on 30.05.1996, etc.

[19] As per Rules of Proprietary, we are bound by the ratio laid down in these authorities, despite the fact that there might be a contrary view, here and there. In order to maintain the judicial discipline and decorum, we find it mandatory to follow these authorities.

[20] In the result, we hereby order that the State Commission had no jurisdiction to try the cases, at that time. The order of the State Commission cannot be faulted. The Appellants will be at liberty to file fresh complaint/Suit before that court which has got the pecuniary jurisdiction or appropriate forum/court, "at this stage", as per law.