BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT PUDUCHERRY
THURSDAY, the 25th day of May, 2017
Revision Petition No.1/2017
Sangeetha Gopalan,
Rep. by Power Agent R.N.Gopalan,
No.6 & 6A, III Floor, Classik Apartments,
4th Cross East Extension, Tagore Nagar,
Lawspet, Puducherry.
………….. Petitioner
Vs.
1. HDFC Bank Limited,
Rep. by its Manager,
1st Floor, Kenton Tower,
Near Kalabhavan Theatre,
Vazhuthacaud, Trivandrum
2. HDFC Bank Limited,
Rep. by its Manager,
No.16, Centigo Building, 100 ft. Road,
Ellapillaichavadi, Puducherry.
…………. Respondents
(On revision against the order passed by the District Forum, Puducherry in in Un-numbered Complaint of 2016, dt.13.01.2017).
Un-Numbered C.C. of 2016
Sangeetha Gopalan,
Rep. by Power Agent R.N.Gopalan,
No.6 & 6A, III Floor, Classik Apartments,
4th Cross East Extension, Tagore Nagar,
Lawspet, Puducherry. ………….. Complainant
Vs.
1. HDFC Bank Limited,
Rep. by its Manager,
1st Floor, Kenton Tower,
Near Kalabhavan Theatre,
Vazhuthacaud, Trivandrum
2. HDFC Bank Limited,
Rep. by its Manager,
No.16, Centigo Building, 100 ft. Road,
Ellapillaichavadi, Puducherry. …………. Opposite Parties
BEFORE:
HON’BLE THIRU JUSTICE K.VENKATARAMAN
PRESIDENT
THIRU S.TIROUGNANASSAMBANDANE,
MEMBER
FOR THE REVISION-PETITIONER:
M/s L.Sathish, S.Ulaganathan, T.Pravin,
S.Velmurugan, V.Veeraragavan & E.Karthik
Advocates, Puducherry.
FOR THE RESPONDENTS:
M/s King & Partridge,
Advocates, Chennai &
Mr.B.Sethuram, Advocate,
Puducherry.
O R D E R
(By Hon'ble Justice President)
This revision is directed against the order made by the District Consumer Disputes Redressal Forum, Puducherry, dated 13.01.2017 in Un-Numbered Consumer Complainant of 2016.
2. The complainant has preferred this revision petition challenging the order of the District Forum in holding that the District Forum at Puducherry has no jurisdiction to decide the complaint filed by the complainant.
3. The short matrix of the matter is set out hereunder:
The complainant is having a Savings Bank Account with the 1st opposite party and her account was linked with her salary since 23.09.2006. She frequently travels Sydney, Australia for her official purpose. On 30.04.2016, she asked her father to withdraw a sum of Rs.20,000/- using her ATM card who, in turn, withdrew the said amount and informed about the closing balance of her account. Thereupon, the complainant to her shock and surprise found that the balance was Rs.3,22,918/- instead of Rs.6,47,918/-. Immediately she contacted the 1st opposite party and informed about the fraudulent withdrawal/transaction and she also mailed 1st opposite party requesting them to block her ATM card and asked to provide a new ATM card. The withdrawal of the amount from her account was not informed to her through the procedure contemplated for the same. She has laid a complaint before the Inspector of Police Mettupalayam P.S., Puducherry. Further pointing out the deficiency in service of the opposite parties, she has filed the complaint before the District Forum, Puducherry.
4. The District Forum after hearing counsel appearing for the complainant on the question of maintainability on the ground of territorial jurisdiction to entertain the matter, ordered return of the complaint to be present before appropriate forum. The District Forum came to the conclusion that District Forum, Puducherry has no territorial jurisdiction to decide the matter and that the complainant has to be laid before the branch where the complainant is having her account.
5. As already stated, the present revision is filed challenging the said order.
6. The learned counsel for the complainant has submitted that though the 1st opposite party is situated at Trivandrum, the ATM card possessed by the complainant was mis-used in the 2nd opposite party branch which situated at Puducherry and hence the complaint filed before the District Forum is absolutely in order. He has also drawn our attention to Section 11 of the Consumer Protection Act. By relying on Section 11 of the Act, learned counsel appearing for the appellant submits that if a part of cause of action has arisen in a particular place, the said District Forum has got jurisdiction. Thus, learned counsel for the complainant submits that District Forum, Puducherry has got jurisdiction to decide the matter.
7. We have perused the entire records and also heard learned counsel appearing for the petitioner as well as the counsel appearing for the respondents. In order to appreciate the matter in issue, it would be useful to refer Section 11 of Consumer Protection Act, 1986, which is reproduced hereunder:
“11. Jurisdiction of the District Forum. – (1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed does not exceed rupees twenty lakhs,
(2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction –
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually or voluntarily resides or carries on business or has a branch office or personally works for gain, or
(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually or voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside or carry on business or have a branch office, or personally work for gain, as the case may be, acquiesce in such institution, or
(c) the case of action, wholly or in part, arises.”
8. The said Section makes it very clear that if a part of cause of action arises in a state or territory, the said District Forum has got jurisdiction to decide the matter.
9. In the present case on hand, though 1st opposite party is situated at Trivandrum, one of the branches of HDFC Bank is in Puducherry. The case of the complainant is two folded. 1) that the 1st opposite party where the complainant is having savings bank account has not sent SMS alert about the transactions made by a person by fraudulently using her ATM and 2) Secondly, when a person fraudulently withdrawn her amount, in 2nd opposite party's ATM at Puducherry, the 2nd opposite party has not taken any action in that regard though she made complaint to the 2nd opposite party. However, the District Forum while returning the complaint has stated that since the complainant having no transaction or maintaining any account or availing any service with the 2nd opposite party within the jurisdiction of District Forum, directed the complainant to file the complaint before appropriate forum overlooking the second ground taken by the complainant in her complaint. Therefore, in our considered view, a combined reading of Section 11 of the Act and the grounds raised by the complainant in her complaint, will establish that the 2nd opposite party which is situated within the jurisdiction of the District Forum in Puducherry has got jurisdiction to decide the matter.
10. The District Forum has relied on the decision of the Hon'ble Apex Court in the case "Sonic Surgicals Vs. National Insurance Company Ltd." and came to the conclusion as stated above.
11. In our considered view, the said judgment cannot be applicable to the facts of the present case on hand. The Hon'ble Apex Court in the said judgment stated "the expression "branch office" in the amended Section 17(2) would mean the branch office where the cause of action has arisen". In the case on hand, as already stated, a part of cause of action has arisen within the jurisdiction of Puducherry where the respondents branch is situated. As already stated the complainant also alleged deficiency in service on the part of 2nd opposite party.
12. We had an occasion to deal with the present matter in issue in F.A.24/2016, dated 27.04.2017. In the said order we also relied on the judgment rendered by the State Commission, Punjab in the case “Seema @ Seema Saini, widow of late Ravinder Pal, Pathankot, Punjab Vs. National Insurance Company Ltd. Ghaziabad”. Para 12 of the said judgment reads as follows:
“(12). It has not been disputed by the opposite parties that the insured died in his village itself, which was within the local limits of jurisdiction of the said District Forum. It was held by Chhattisgarh State Consumer Disputes Redressal Commission, Raipur in Oriental Insurance Company Ltd. Vs. Neelam Singh and others (I(2007) CPJ 365) that the District Forum of the place where the death of the insured takes place has also the territorial jurisdiction to entertain the complaint regarding the payment of claim regarding death. “
The same view was taken in First Appeal No.7/2007 (Karnataka State Commission) para 23 to 25 are useful to be extracted hereunder:
“23. We shall also bear in mind that the Hon’ble Supreme Court held in Para 17 in Dr.V.N.Shrikhande Vs. Anita Sena Fernandez (AIR 2011 SC 212) that where the term cause of action has not been defined in an Act, the same has to be interpreted keeping in view the context in which it has been used and object of the legislation. Again, explaining the term cause of action it observed in paras 16 & 17 of Rajasthan High Court Advocates Association Vs. Union of India (AIR 2001 SC 416) that it would be open to a litigant who is the dominus litus to have his forum conveniens and he has the right to go to a court where part of his cause of action arises. Further that, it has to be left to be determined in each individual case as to where the cause of action arises.
24. To our mind the celebrated judgment of the Hon’ble Supreme Court viz. “ABC Laminart Pvt. Ltd. Vs. A.P.Agencies, Salem (AIR 1989 SC 1239) read along with the provisions of the Information Technology Act, 2000 which we shall discuss later, is of vital value and relevance to decide this matter which is not as complicated as it appears to be at first glance. What the Hon’ble Apex Court held here in paras 13 to 15 is required to be quoted below expansively (underlining ours)
(13) Under Section 20(c) of the Code of Civil Procedure subject to the limitation stated theretofore, every suit shall be instituted in a court within the local limits of whose jurisdiction the cause of action, wholly or in part arises. It may be remembered that earlier section 7 of the Act 7 of 1888 added explanation III as under
Explanation III In suits arising out of contract the cause of action arises within the meaning of this section at any of the following places, namely
(1) the place where the contract was made
(2) the place where the contract was to be performed or performance thereof completed
(3) the place where in performance of the contract any money to which the suit relates was expressly or impliedly payable.
(14) The above Explanation III has now been omitted but nevertheless it may serve a guide. There must be a connecting factor.
(15) In the matter of a contract there may arise causes of action of various kinds. In a suit for damages for breach of contract the cause of action consists of the making of the contract, and of its breach, so that the suit may be filed either at the place where the contract was made or at the place where it should have been performed and the breach occurred. The making of the contract is part of the cause of action. A suit on a contract, therefore, can be filed at the place where it was made. The determination of the place where the contract was made is part of the Law of Contract. But making of an offer on a particular place does not form cause of action in a suit for damages for breach of contract. Ordinarily, acceptance of an offer and its intimation result in a contract and hence a suit can be filed in a court within whose jurisdiction the acceptance was communicated. The performance of a contract is part of cause of action and in a suit in respect of the breach can always be filed at the place where the contract should (been) performed or its performance completed. If the contract is to be performed at the place where it is made, the suit on the contract is to be filed there and nowhere else. In suits for agency actions the cause of action arises at the place where the contract of agency was made or the place where actions are to be rendered and payment is to be made by the agent. Part of cause of action arises where money is expressly or impliedly payable under a contract. In cases of repudiation of a contract, the place where repudiation is received is the place where the suit would lie. If a contract is pleaded as part of the cause of action giving jurisdiction to the Court where the suit is filed and that contract is found to be invalid, such part of cause of the action disappears. The above are some of the connecting factors.
25. The ratio of this extremely relevant and landmark judgment of the Hon’ble Supreme Court, as we can understand, is that, in contractual matters, besides other places, cause of action arises at any of the places where (a) a contract is made or (b) where acceptance of a contract is communicated or (c) where a contract is performed or is to be performed or (d) where money under the contract is either payable or paid; or € where repudiation of a contract is received. Section 11(2) of the C.P.Act being akin to Section 20 C.P.., this clear pronouncement of the law relating to territorial jurisdiction would apply with full force to the Consumer Fora and is thus instrumental in helping us resolve the issue with which we are confronted.”
The said judgments will squarely applicable to the facts of the case on hand.
13. Thus, we are inclined to hold that the complaint laid by the complainant before the District Forum, Puducherry is absolutely in order and it has got jurisdiction to decide the matter. Unfortunately, the District Forum has held that it has no jurisdiction to entertain the complaint since no cause of action has arisen within the territorial jurisdiction of the District Forum, Puducherry.
14. Therefore, we are inclined to set aside the order of the District Forum made on 13.01.2017 in un-numbered complaint of 2016 and direct the District Forum to take up the matter on its file and order notice to other side and also direct the opposite parties to file reply version and shall dispose of the matter as early as possible, in any event within six months from the date of receipt of this Order.
Dated this the 25th day of May, 2017.
(Justice K.VENKATARAMAN)
PRESIDENT
(S.TIROUGNANASSAMBANDANE)
MEMBER
