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Advocate Ghone for the Complainant
Advocate A P J P Dubey for the Opponent
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Per Hon’ble Shri. V. P. Utpat, President
:- JUDGMENT :-
Date – 17th December 2013
This complaint is filed by consumer against the opponents for deficiency in service u/s 12 of Consumer Protection Act, 1986. Brief facts are as follows-
[1] Complainant is resident of Dapodi, Pune. Opponent is dealing in the profession of service provider for transportation and other services. Complainant is fond of traveling and visiting various cities. Opponent had head office at Hyderabad and branch at various places including Pune. Opponents have assured various facilities and amenities as regards trips. Opponents have assured a holiday package for five times in a year for six nights and seven days. Opponents have assured the utility of community hall for 7-8 times in a year for life time. Opponents have also assured that the party who has reserved the package 10-15 days in advance will get seven days package free of cost. The members of opponents will get 10-15% discount on purchase from big bazaar. These and other many assurances were given to the complainant. Hence, he has deposited Rs.95,000/- and obtained membership for five years from 28/11/2011. Agreement was also executed in writing between the parties. On 3/12/2011 opponents assured that the process of issuance of membership card is going on. Opponents demanded Rs.6,50,000/- for membership. When complainant made inquiry with the head office he came to know that amount of Rs.1,00,000/- is sufficient for membership. Complainant came to know from his friends and others that they suffered lot of trouble. Hence, he has decided to cancel the membership and claimed refund from the opponent. He has issued notice to the opponents on 22/2/2012. But the opponents did not comply with the notice. Hence, he has filed present complaint and claimed Rs.95,000/- alongwith interest @ 18% p.a. and compensation of Rs.50,000/- for mental and physical sufferings and Rs.20,000/- as cost of litigation.
[2] Opponents resisted the claim by filing written version. It has denied the contents of complaint in toto. It is specifically pleaded that it has never caused any deficiency in service. As per the terms and conditions of the agreement the complainant is not entitled for cancellation of membership as it is an irrevocable agreement. It is also contended that complainant is not a consumer of the opponents. It is further contended that, as per the terms of agreement, if there is any dispute between the parties, complainant has to initiate proceeding either in the court of Secundarabad or Hyderabad. Hence, the Consumer Forum has no jurisdiction. Opponents have prayed for dismissal of the complaint.
[3] Considering the pleadings of both parties, scrutinizing the documents, written argument and legal position, following points arise for my determination. The points, findings and reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1 | Whether this Forum has jurisdiction to entertain the complaint filed by the complainants ? | In the negative |
2 | Whether Opponent has caused deficiency in service ? | Does not survive |
3 | What order ? | Complaint is returned to the complainants for presenting the same before proper Forum. |
Reasons
As to the Point Nos. 1 to 3-
[4] The learned Advocate for the Opponents argued that as the complainant has admitted the terms and conditions of the agreement in which it is clearly mentioned that if there is any dispute between the parties, then the proceeding is to be initiated before the court which is situated at Hyderabad or Secundarabad. The learned Advocate for the opponents drew my attention to clause No.11 of the agreement which can be read as under-
“ It is agreed between the Parties herein that in the event of any disputes, claims or differences arising under the present Purchase Agreement, the same shall be referred to ARBITRATION under the provisions of Arbitration and Conciliation act of 1996 and amendments thereof, by Arbitrator to be appointed by the COMPLNY/I PARTY herein and the AWARD passed by the Arbitrator shall be final and binding on all parties herein and that the courts in Hyderabad and Secunderabad alone shall have jurisdiction. “
It reveals from the abovesaid clause that courts in Hyderabad and Secunderabad shall alone have jurisdiction. In order to support the contention of the said clause the learned Advocate for the Opponent strongly relied upon the ruling of Hon’ble Supreme Court of India between ABC Laminart Pvt. Ltd vs. A.P.Agencies, Salem in Civil Appeal No. 2682 of 1982 decided on 13/3/1989. In the said ruling it has been observed by the apex court that,
“where the parties to a contract agreed to submit the dispute arising from it to a particular jurisdiction which would otherwise also be a proper jurisdiction under the law their agreement to the extent they agreed not to submit to other jurisdictions cannot be said to void as being against public policy.”
[5] Similar view is taken by the apex Court in the recent judgment of the Hon’ble Supreme Court in Civil Appeal No.5086 of 2013 between M/s. Swastik Gases P. Ltd. vs. Indian Oil Corp. Ltd., decided on 03/07/2013. It has been observed in this ruling, after discussing various judgments of apex Court that, the parties can agreed upon the place of jurisdiction. The latin maxim expressio unius est exclusio alterius was referred in the said judgment. Further it has been observed that,
“This legal maxim means that expression of one is the exclusion of another. By making a provision that the agreement is subject to the jurisdiction of the Courts at Kolkatta, the parties have impliedly excluded the jurisdiction of other courts. Where the contract specifies the jurisdiction of the courts at a particular place and such courts have jurisdiction to deal with the matter, we think that an inference may be drawn that parties intended to exclude all other courts. A clause like this is not hit by section 23 of the Contract Act at all. Such clause is neither forbidden by law nor it is against the public policy. It does not offend section 28 of the Contract Act in any manner. ”
[6] In the present proceeding the head of the Opponent is situated at Hyderabad and as per section 11 of the Consumer Protection Act, 1986, the places of head office as well as branch of the Opponent are the proper jurisdiction.
[7] In the present proceeding the complainant has waived and excluded their right to initiate the proceeding at branch office and in view of the above noted ruling, that agreement is not against the public policy. After considering the ratio laid down in the above quoted ruling, we held that this Forum has no jurisdiction to try and entertain the present complaint and the complaint should be returned to the complainants for presenting the same in proper Forum. Hence, Forum held that the issue as regards deficiency in service is treated as does not survive. We answer the points accordingly and pass the following order-
:- ORDER :-
1. Complaint is hereby returned to the complainant for presenting the same before appropriate Forum within one month from the date of order.
2. As per peculiar circumstances there is no order as to costs.
3. Both parties are directed to collect the sets which are
provided for the Members within one month from the date of order. Else those will be destroyed.
Copy of order be supplied to both the parties free of cost.
Place – Pune
Date – 17/12/2013
