Per Justice Sham Sunder , President This appeal is directed against the order dated 23.3.2011, rendered by the District Consumer Disputes Redressal Forum-I, U.T. Chandigarh (hereinafter to be referred as the District Forum only), vide which it accepted the complaint and directed the OPs(now appellants), as under ; “The OPs are directed to refund to the complainant Rs.10,47,641.25 /- with interest @12% p.a. since the respective dates of its deposit with OP Nos.1&2 alongwith compensation of Rs.20,000/- for causing him mental agony and harassment, besides litigation costs of Rs.5,000/-. The order shall be complied with by the OP Nos.1&2 within 30 days from the date of receipt of a copy of the order, failing which, OP NOs.1 & 2 shall be liable to pay the interest @18% p.a. instead of 12% p.a. on the above said amount of Rs.10,47,641.25 from the respective dates of deposit, till the payment is actually made to the complainant, besides payment of compensation and litigation costs. Since, all the payments were made by the complainant to OP Nos 1 & 2; the flat buyer agreement was executed between the complainant and the OP Nos 1 & 2 on 19.1.2007; there was no privity of contract between the complainant and OP-3 and, thus, he was not their consumer, therefore, the complaint qua OP-3 is dismissed.” 2. The complainant booked a three bedrooms residential flat, in the project of OP Nos. 1 & 2, total cost of which was Rs.69,84,275/-. He deposited a sum of Rs.5,00,000/- vide cheque dated 5.4.2006 alongwith the application form. The balance amount was to be deposited as per the construction linked payment plan i.e. in instalments. The complainant was allotted flat bearing No.T1-C-02 on the ground floor, Block No.T1 having approx. built up area of 1780 sq. ft. He again paid a sum of Rs.5,47,641.25p, vide cheque dated 9.12.2006 drawn on Bank of India, Panchkula Branch, Haryana . In this manner, the complainant paid a sum of Rs.10,47,641.25p in all. A flat buyer agreement was executed between the complainant and OP No.1 on 19.1.2007. The construction of the flat was to be completed within 36 months from 10.6.2006.. When the complainant visited the spot, in January 2010, he found that the OPs had not even laid the foundation, at the site and, as such, there was no development. The complainant visited the office of OP No.1, and requested for refund, but the same was not given. Despite service of legal notice dated 28.4.2010 refund was not even made by the OPs. It was stated that the aforesaid acts of the OPs, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986(hereinafter to be called as the Act only) was filed by him. 3. OP Nos.1 & 2, in their written reply, took the objection that the District Forum, at Chandigarh, had no territorial jurisdiction, to entertain and decide the complaint. It was admitted that the complainant booked a flat. It was also admitted that he paid a sum of Rs.10,47,641.25p in all. It was stated that the construction activity slowed down, on account of global economic meltdown, and connected circumstances, which were beyond the control of the OPs. It was further stated that as per clause 5(a) of the agreement, timely payment of the instalments/ amounts due was the essence of the agreement, and if the payment was not made, within the stipulated period, or the buyer committed breach of the terms and conditions, then the agreement was liable to be cancelled, and, in that eventuality, earnest money being 15% of the basic price, was to be forfeited, and the balance, if any, was to be refunded, without interest. It was denied that there was any deficiency, in rendering service, on the part of the OPs, or they indulged into unfair trade practice. The remaining allegations, were denied, being wrong. 4. OP NO.3, in its written statement, stated that the flat buyer agreement was executed between the complainant and OP No.1 on 19.1.2007. It was further stated that there was no privity of contract between OP No.3, and the complainant and, as such, it was not liable to pay any amount. The remaining allegations, were denied, being wrong. 5. The parties led evidence, in support of their case. 6. After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order. 7. Feeling aggrieved, the instant appeal, was filed by the appellants/ OP NOs.1 & 2. 7A. The service of respondent No.2 was dispensed with as it was ex- parte in the District Forum. 8. We have heard the Counsel for the parties, and have gone through the evidence, and record of the case, carefully. 9. The Counsel for the appellants, submitted that, the District Forum at Chandigarh had no jurisdiction, whatsoever, to entertain and decide the complaint, as no cause of action accrued to the complainant, within the territorial jurisdiction of Chandigarh. 10. On the other hand, the Counsel for the respondent/complainant, submitted that, since the offices of OP NOs.1 & 3, are located at Chandigarh, the District Forum at Chandigarh, had territorial jurisdiction to entertain and decide the complaint. 11. Annexure C1 is a copy of the receipt, which was issued by the authorized signatory, on behalf of M/s Prasvnath Developers Ltd., on receipt of advance against the flat, in question, through cheque, which was drawn by the complainant, on Bank of India, Branch Panchkula(Haryana). The address of the Registered and Corporate office of M/s Parsvnath Developers Limited mentioned, in this copy of the receipt is 6th floor, Arunachal Building, 19, Barakhamba Road, New Delhi. C3 is a copy of the cheque dated 9.12.2006 of Rs.5,47,641.25, which was payable to Parsvnath Developers Ltd. drawn on Bank of India, Panchkula, Haryana, and was issued by the complainant towards part payment. C3/A is a copy of the receipt, of this cheque which is signed by a duly authorized signatory of M/s Parsvnath Developers Ltd. In this receipt also the aforesaid address is mentioned. These documents do not show that the payment was made at Chandigarh. Even the flat buyer agreement dated 19.1.2007, which was executed, between the parties, on the top of it, carries the words “Parsvnath Royale Panchkula, Haryana” . It means that the agreement was executed at Panchkula(Haryna) and not at Chandigarh. The project, in which, the flat was booked by the complainant, is admittedly located at Panchkula. No doubt, OP No.1 was arrayed as ‘Parsvnath Developers Limited, through its Director, office at SCO No.1, First floor, Madhya Marg,Sector-26, Chandigarh. It is not proved from the array of the OPs/respondents, as to whether, Parsvnath Developers Limited has its Registered Office or Head Office at Chandigarh. OP No.3/respondents NO.2 did not have any connection, whatsoever, with the matter, in dispute. Since, neither the payment was made by the complainant, at Chandigarh, nor the property, in question, is situated at Chandigarh ; nor the Head Office or the Registered Office of M/s Parsvnath Developers Limited is at Chandigarh ; nor any receipt regarding the payment of amount was issued at Chandigarh, it could be very well said that no cause of action accrued, within the territorial jurisdiction of Chandigarh and, as such, the District Forum, at Chandigarh, had no jurisdiction, whatsoever, to entertain and decide the complaint. At the time of arguments, no doubt, the Counsel for the respondent/complainant, submitted that the payment was made at Chandigarh, to the authorized signatory of M/s Parsvnath Developers Limited. However, in the absence of any proof, with regard to the same, having been produced, on record, the submission of the Counsel for the complainant/respondent, is without substance. Though, a specific objection was taken by OP Nos.1 & 2, in their written reply, that the District Forum, at Chandigarh, had no territorial jurisdiction, to entertain and decide the complaint, yet the District Forum did not take cognizance thereof, nor decided this question. Since, the District Forum, at Chandigarh, had no territorial jurisdiction, to entertain and decide the complaint, it could not touch the same on merits. Similar principle of law was laid down, by the Hon’ble Apex Court in Sonic Surgical Vs National Insurnace Company Ltd. 2010(1)Consumer Law Today 252. The submission of the Counsel for the appellants, carries substance, and the same stands accepted. 12. The order of the District Forum, being without jurisdiction, is illegal, and the same is liable to be set aside. 13. For the reasons recorded above, the appeal is accepted, with no order as to costs. The impugned order is set aside, and the complaint is ordered to be returned to the complainant, for presentation thereof, before the appropriate forum. 14. Certified Copies of this order be sent to the parties, free of charge. 15. The file be consigned to the Record Room.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | , | |
