BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 12th April 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SMT. LAVANYA M. RAI : HON’BLE MEMBER
ORDERS IN
C.C.No.250/2011
(Admitted on 19.07.2011)
Mr. Randhir Manjeshwar,
Aged 37 years, S/o Late Chandrashekar M,
Residing at Flat No. # 301,
Chalet Apartment,
1st Cross, Lower Bendur,
Near St. Theresas School,
Manglaore 575 002.
….. COMPLAINANT
(Advocate for the Complainant: Sri MSKP)
VERSUS
1. Puruvankara Projects Pvt. Ltd.,
No.130/1, Ulsoor Road, Bangalore 560 042,
Represented by its General Manager,
2. M/s I.C.I.C.I. Bank Ltd,
Bharath Building, G.H.S. Cross Road,
Hampankatta, Mangalore,
Represented by its Manager.
….........OPPOSITE PARTIES
(Advocate for the Opposite Party No.1: Sri AKU)
(Advocate for the Opposite Party No.2: Sri MCB)
ORDER DELIVERED BY HON’BLE PRESIDENT
SRI. VISHWESHWARA BHAT D:
I. 1. The above complaint filed under Section 12 of the Consumer Protection Act by the complainant against opposite parties alleging deficiency in service claiming certain reliefs.
The brief facts of the case are as under:
The complainant claims on various advertisements and representations of opposite party No.1 in different media the complainant on coming to know about the developing multi storeyed apartment building at Kanakapura Road, Bangalore booked a one apartment in project in said Purva Highlands on 31.5.2008 by paying on advance of Rs.1,00,000 of the stated prices of 69556. 17.6.08 he paid Rs.4,46,263/ on the representation of opposite party No.1 as planes approved by opposite party No.2. Complainant entered into applied for loan with opposite party No.2 for Rs.53,11,358/. He further claims due to delay on the ground in completing of the work opposite party has not released the one instalment to opposite party No.1. Subject to the payment of October 2008 till June 2009 opposite party No.1 claim that opposite party NO.2 had released loan instalment of other intending buyers and withhold that of the complainant. Opposite party No.2 then in June July made payment of the pending instalment on demand by the complainant. Complainant claims in view of this delay in the progress of work by opposite party No.2 and delay in the instalment by opposite party No.2 complainant was forced to pay an excess amount of Rs.1,24,080/ as 50% of the interest portions as such seeks reliefs claimed in the complaint directing against opposite parties jointly and severally to pay the said amount with interest to complainant and other reliefs as claimed.
II. Opposite party No.2 in the written version not only denied the liability on his part as claimed in complaint. But even the territorial jurisdiction of this Forum to entertain complaint as opposite party No.2 as nothing to do with transaction and the loan was not sanctioned by the opposite party No.2 at Mangalore. As no part of the contract has taken place within the limits of this Forum claimed. Instalment 4 to 6 were paid to opposite party No.2 with opposite party No.1 they were withheld due to unsatisfactory progress made by opposite party No.1 under the loan facility agreement. Opposite party No.2 was authorized by the loan facility agreement to disburse the loan instalment in accordance with the progress with construction the very same agreement also authorized with the progress in construction was not entitled to stand of opposite party No.2 hence seeks dismissal of the compliant.
2. Opposite party No. 1 also in the written version raised the objection as to the territorial jurisdiction as none of the transaction took place at Mangalore within the jurisdiction of this Forum. He also claims that there is no contractual relationship between whatsoever with opposite party No.1 and opposite party No.2, opposite party No.1 with complainant and opposite party No.2. He also claims opposite party No.2 released loan in respect of other intending purchasers. The complainant defaulted in making payment of the agreement of sale and construction agreement. The complainant and opposite party No.2 on behalf of complainant delayed the payment terms and condition of the contact between the parties. He also claims that unseasonal rain in 2009.10 had to sever clogging making the project site inaccessible for the construction activities. Hence seeks dismissal of the complaint against opposite party No.1.
3. In support of the above complainant Mr. Randhir Manjeshwar filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked at Ex.C1 to C13 as detailed in the annexure here below. On behalf of the opposite parties Mr. Nani R. Choksey (RW1) Private Service and Mr. Prasad Muloor Gopalakrishna (RW2) Manager, ICICI Bank, also filed affidavit evidence and answered the interrogatories served them and produced documents got marked at Ex.R1 to R2 as detailed in the annexure here below.
III. In view of the above said facts, the points for consideration in the case are:
- Whether this Forum has Territorial Jurisdiction to try the case?
- Whether the Complainant is a consumer and the dispute between the parties?
- If so, whether the Complainant is entitled for any of the reliefs claimed?
- What order?
The learned counsels for complainant sides addressed oral arguments. Opposite parties filed notes of arguments. We have considered entire case filed on record including evidence tendered by the parties and notes arguments of the parties. Our findings on the points are as under follows
Point No. (i) : Negative
Point No. (ii) : Does not survive for
& (iii) consideration
Point No. (iv) : As per the final order.
REASONS
IV. POINTS No. (i): As seen from the complainant allegation it is not the case of the complainant that any portion of transaction pertaining to the apartment being developed by opposite party No.1 at Bangalore and complainant having entered to the agreement on the said purchase and loan complainant entered into agreement for loan of finance and that part took place at Bangalore. As such it was contended for opposite parties that this Forum has not territorial jurisdiction to try the case.
2. Section 11 (2) of CP Act reads thus:
11. Jurisdiction of the District Forum
(1) ..
(2) A complainant 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 and 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 compliant, actually and voluntarily resides, 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 cause of action, wholly or in part, arises
3. In Ms. Melanie Das vs Royal Sundram Alliance Insurance Company Ltd. in FA No.225/2013 of the National Commission wherein reference to 17(2) observation in order dated 13.1.2014 while considering scope of this provision as while relying on an earlier reported case of Sonic Surgical’s Case it was observed:
Explaining the scope of said provision, which was not in the Act when complaint in Sonic Surgical’s case was filed, the Honble Supreme Court has been pleased to observe that although the interpretation placed by them would be a departure from the plain and literal words of Section 17(2) of the Act, but in order to avoid absurd consequences, the expression branch office, as appearing in the newly inserted provision would mean the branch where the cause of action has arise. Thus, the Court opined that mere existence of a branch office of a company would not ipso facto be determinative of the territorial jurisdiction of the State Commission. The cause of action must also arise at that place. Pithily stated, both the said conditions have been held to the cumulative and not independent of each other.
It was further pointed out in the reported case thus:
In our opinion, an interpretation has to be given to the amended Section 17(2) (b) of the Act, which does not lead to an absurd consequence. If the contention of the learned counsel for the appellant is accepted, it will mean that even if a cause of action has arisen in Ambala, then too the complainant can file a claim petition even in Tamil Nadu or Gauhati or anywhere in India where a branch office of the insurance company is situated. We cannot agree with this contention. It will lead to absurd consequences and lead to bench hunting. In our opinion, the expression ‘branch office’ in the amended Section 17(2) would mean the branch office where the cause of action has arisen. No doubt this would be departing from the plain and literal words of Section 17(2) (b) of the Act but such departure is sometimes necessary (as it is in this case) to avoid absurdity. (vide G.P. Singhs Principles of Statutory Interpretation, Ninth Edition, 2004 P.79)
4. In the reported case National Commission was dealing with section of pertaining to territorial jurisdiction to State Commission section 17 (2) of C P Act which akin to section 11 of C P Act dealing with territorial jurisdiction of the District Forum. As such the law laid down in the reported case is aptly applicable to the fact on hand. In the circumstances we are of the view that none of the transactions alleged by the complainant took within the jurisdiction of this Forum. Hence we are of the view that this Forum has no territorial jurisdiction to try the case. Hence we answer point No.1 in the Negative.
Points No. (ii) & (iii): In view finding point against complainant these points does not survive for consideration.
POINTS No. (iii): The complaint shall be return to the complainant to present before the Forum of appropriate jurisdiction. Wherefore the following
ORDER
This Forum has no territorial jurisdiction hence return the complaint to complainant to present before the Forum of appropriate jurisdiction.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 9 directly typed by steno on computer system to the dictation of President revised and pronounced in the open court on this the 12th April 2017)
MEMBER PRESIDENT
(LAVANYA M. RAI) (VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Mangalore. Mangalore.
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 Mr. Randhir Manjeshwar
Documents marked on behalf of the Complainant:
Ex.C1: Office copy of lawyers notice to the Opposite party Dated 26.03.2011
Ex.C2: Original reply letter of first opposite party to complainant Advocate 10.05.2011
Ex.C3: Office copy of reminder of complainants advocate to the Opposite party dated 10.05.2011
Ex.C4: Construction agreement executed between complainant and opposite party No.1 dated 17.06.2008
Ex.C5: Agreement for sale entered between the complainant and Opposite party No.1 17.06.2008
Ex.C6: Copy of email by opposite party No.1 to complainant Dated 04.12.2010
Ex.C7: Statement of account dated 17.06.2008 to 15.06.2010
Ex.C8: Copy of the agreement entered between opposite party No.2 and complainant
Ex.C9: Copy of the email dated 05.05.2010, 06.05.2010, 26.04.2010, 21.04.2010, 17.04.2010, 08.03.2010,16.02.2010, 19.2.2009
Ex.C10: Letter from Randhir Manjeshwara to Praveen Kiran dated 23.03.2013
Ex.C11: Declaration-cum-undertaking dated 23.03.2013
Ex.C12: Possession of apartment No HH.705, Puravankara dated 23.03.2013
Ex.C13: Puravankara receipt dated 23.03.2013
Witnesses examined on behalf of the Opposite Parties:
RW1 Mr. Nani R. Choksey, Private Service
RW2 Mr. Prasad Muloor Gopalakrishna, Manager, ICICI Bank,
Documents marked on behalf of the Opposite Parties:
Ex.R1: Purva Highlands, customer who have availed housing Loan from ICICI Bank for whom bank has disbursedPayments between October 2008 June 2009
Ex.R2: Puravankara Statement of account
Dated: 12.4.2017 PRESIDENT
