Delhi

StateCommission

A/156/2016

UPMANYU SHARMA & ANR. - Complainant(s)

Versus

BOARD OF DIRECTORS M/S SAMIAH INTERNATIONAL BUILDER PVT. LTD. - Opp.Party(s)

02 Sep 2019

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

 

Date of Decision:02.09.2019

 

 

First Appeal No.156/2016

(Arising out of the order dated 14.01.2016 passed in Complaint Case No. 512/2013 by the District Consumer Disputes Redressal Forum (East), Saini Enclave, Delhi)

 

1. Shri Upmanyu Sharma,

R/o 133, Block –H,

Ganga Vihar, Delhi -110094.

 

2. Shri Bhupendra Singh,

S/o Shri Ratan Singh,

R/o C-395, Gokul Puri,

Delhi -110094.

                                                            …..Appellants

 

Versus

 

The Board of Directors,

M/s. Samiah International Builder Pvt. Ltd.,

B-98, Abul Fazal Apartments,

22, Vasundhara Enclave, Delhi -110096.

 

ALSO AT:

 

F-6, DDA Commercial Complex,

Main Drive, Vasundhara Enclave, Delhi.

 

ALSO AT:

 

Samiah House, A-35, Sector -63,

Gautam Budh Nagar, Noida, UP – 201305.

….Respondent

 

CORAM

Ms. Salma Noor, Presiding Member

 

 

1. Whether reporters of local newspaper be allowed to see the judgment?
2. To be referred to the reporter or not?

 

Ms. Salma Noor, Presiding Member

 

1. The present appeal under Section 15 of the Consumer Protection Act, 1986 (in short, the “Act”) impugns the order dated 14.01.2016 passed by the Consumer Disputes Redressal Forum (East), Saini Enclave, Delhi (in short, the “District Forum”) in Complaint Case No.513/2013 whereby the complaint filed by the appellants herein i.e. the complainants has been directed to be returned on the ground of territorial jurisdiction for presentation to proper court or forum having jurisdiction.
2. Compendium of the facts relevant for the disposal of the present appeal are that a complaint under Section 12 of the Act was filed by the appellants herein i.e. the complainants before the District Forum stating therein that appellants/complainants on 28.07.2011 booked a flat measuring 42 sq. mtr in Gulmohar Estate-4, Lake City Rudrapur bearing No.R-2/201/F, First Floor by making payment of Rs.50,000/-. It was stated that respondent/OP had assured that the possession of the flat would be delivered within 12 months from the date of booking. It was stated that upon demand of respondent/OP, appellants/complainant paid Rs.82,065/- to respondent/OP on 18.08.2011. It was stated that again on demand of respondent/OP, appellants/complainant paid a sum of Rs.1,05,652/- on 25.09.2011 and again paid Rs.1,05,652/- on 22.01.2012. It was stated that till January, 2012, appellants/complainant paid Rs.3,45,094/- to the respondent/OP towards the cost of the booked flat. It was stated that in May, 2012 upon visit of the site to know about the progress of construction work, appellants/complainants were shocked to find that only some pillars standing at the project site. Thereafter, they met the officers of respondent/OP but in vain. It was stated that vide email dated 07.05.2012 appellants/complainants asked about the details of site and about delay but no reply was received from respondent/OP.  It was stated that on 12.06.2012 appellants/complainants wrote a reminder letter to respondent/OP and demanded builder buyer agreement, booking letter and work progress but no reply was received from respondent/OP.  It was stated that on 27.06.2012 appellants/complainant again wrote to respondent/OP. it was stated that on 28.06.2012 respondent/OP issued a letter demanding more money without mentioning anything about agreement and progress, which replied by the appellants/complainants stating that ‘there is no logic to pay more amount while construction has not been done’, however, no reply was received. It was stated that on 14.07.2012 appellants/complainants wrote a letter to respondent/OP and demanded builder buyer agreement and work progress but they demanded more amounts through emails.  It was stated that builder buyer agreement was given on 26.08.2012 after more than one year from the date of booking. On 06.09.2012, appellants/complainant again wrote to respondent/OP seeking information about construction work but no reply was received. It was stated that appellants/complainant again wrote on 23.09.2012 and an email dated 05.10.2012 was received from respondent/OP wherein it was mentioned that work is going in full swing and foundation work has been completed. It was stated that it was clear that the construction work being done with a speed of a snail because after 15 months only foundation work was done. It was alleged that on 14.10.2012 appellants/complainant met Shri Sageer Khan who assured them delivery of possession of the flat by April, 2013 and this fact was conveyed through email dated 18.10.2012. Thereafter, repeated assurances were given by the respondent/OP for handing over the possession of the flat to them but in vain. Alleging deficiency in service on the part of  respondent/OP, appellants/complainants filed a complaint before the District Forum seeking refund of Rs.3,45,094/- alongwith interest and Rs.2,00,000/- towards compensation.
3. Complaint was opposed by the respondent/OP besides raising other issues, it had raised the plea of territorial jurisdiction stating therein that as property in question lies out of territory of Delhi i.e. Uttrakhand and the whole series of events which gave rise to the complaint have taken place at the office of respondent/OP located at Noida, even the agreement for allotted flat has been executed at Noida. No part of the cause of action has arisen within the territory of Delhi and that registered office of the respondent/OP has been used for the purpose of invoking the jurisdiction of the District Forum.
4. Evidence by way of affidavit was filed by both the parties in support of their respective case.
5. However, Ld. District Forum after hearing the parties held that as no cause of action has arisen within the territory of Delhi, it had no territorial jurisdiction to entertain the complaint and ordered it to be returned to appellants/complainants for presenting the same before proper court/forum.
6. Aggrieved with the aforesaid order present appeal is filed.
7. I have heard the counsel for the appellants/complainants, as counsel for the respondent/OP is not available. Further, perusal of record shows that main counsel for respondent/OP has never appeared in the present case despite giving sufficient opportunities. On the previous date of hearing i.e. 08.07.2019, it was noted that if main counsel for respondent/OP fails to appear on the next date appropriate orders will be passed. Even then, main counsel for respondent/OP has not bothered to appear.
8. Ld. counsel for appellant/complainant has submitted that in clause 41 of the agreement executed between the parties, it is mentioned that ‘the execution of the agreement will be completely only upon its executed through its authorised signatory at the company’s office at Delhi after the copies duly executed by the Allottee  are received by the company. Hence this agreement shall be deemed to have been executed at Delhi, even if the allottee has prior thereto executed this Agreement at any place(s) other than Delhi’. Ld. Counsel has further contended that as in terms of 46 of agreement,  the Courts of Delhi at New Delhi alone shall have the jurisdiction in all matters arising out of/touching and/or concerning the agreement regardless of the place of execution of this Agreement which is deemed to be Delhi. Thus, the Ld. District Forum has erred in not appreciating the clauses of the agreement executed between the parties. 
9. Qua territorial jurisdiction of a District Forum, Section 11 (2) of the Consumer Protection Act, 1986 (in short the Act)  reads as under:-

"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 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 complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case 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 cause of action, wholly or in part, arises".

 

10. It is clearly provided that a complaint can be filed before the District Forum, within whose jurisdiction the opposite party(s) resides, or carries on business or has a branch office or personally works for gain. It is further provided that the complaint can be filed in a place, before a Forum, where any of the opposite parties actually and voluntarily resides etc. and personally works for gain. Above filing will be subject to permission granted by the District Forum or consent of the opposite parties, not residing within the jurisdiction of a District Forum, where complaint was filed. Provision also stipulates that the complaint can be filed before a District Forum where cause of action wholly or in part, arises. Similar provision exists qua territorial jurisdiction of the State Consumer Disputes Redressal Commission, as per Section 17 (2) of the Act.
11. It is argued by the Ld. Counsel for appellants/complainants that respondent/OP has its registered office and work for gain within the limits of jurisdiction of the District Forum, where the complaint was instituted, as such the appellants/complainants cannot be precluded from instituting the complaint at District Forum (East) under Clause (a) of Section 11(2), C.P. Act, 1986.
12. It is well neigh settled that contracts can be concluded through telephone, where the parties are placed at distance, without having direct access to each other. In such a situation, contract would be completed at a place, where its acceptance is communicated. Because of advancement & technology and rapid growth of new models of conducting business over the internet, it is possible for an entity to have a virtual presence at a place, which is located at a distance from the place, where it has a physical presence. Furthermore, performance of a contract forms a part of cause of action and grievance can be redressed by filing a suit, qua its breach at a place, where contract should have been performed. It was so said by the Hon'ble Supreme Court of India in A.B.C. Laminart Pvt. Ltd. & Anr. v A.P. Agencies, Salem, 1989 AIR 1239=1989 SCR (2) 1, while interpreting the provisions of Section 20 (c) of the Code of Civil Procedure.
13. The provisions of Section 11 (2) of the CPA 1986 are akin to the provisions of Section 20 (c) of the Code of Civil Procedure. The pronouncement of law, as made by the Hon'ble Supreme Court of India, in the case of   A.B.C. Laminart Pvt. Ltd. and Anr.'s case (supra) would apply in full force to the Consumer Forums, when trying complaints under the CPA 1986. Not only this, the Hon'ble Supreme Court of India in the case of Marine Container Services South v. Go Go Garments (AIR 1999 SC 80)  (Para 4), also held that the Contract Act applies to all litigants, including the litigants under the CPA 1986. In view of above, it can safely be said that for the purpose of consumer complaints, relating to normal contracts for services and/or goods, cause of action arises inter-alia at any of the places, where; (a) the contract is made; and/or (b) where acceptance of the contract is communicated and/or (c) where the contract is performed or is to be performed and/or (d) where money under the contract is either payable or paid and/or (e) where repudiation of the contract is received, if any. Consequently, territorial jurisdiction over a consumer complaint also lies with the Consumer Fora situated at any place, where any of the aforementioned cause of action arises.
14.  In the present case, though the agreement dated 26.08.2012 was made at Noida, however, clause 41 of the said agreement specifically states that ‘the execution of the agreement will be completely only upon its execution through its authorised signatory at the company’s office at Delhi after the copies duly executed by the Allottee  are received by the company. Hence this agreement shall be deemed to have been executed at Delhi, even if the allottee has prior thereto executed this Agreement at any place(s) other than Delhi’. Further, 46 of agreement also states the Courts of Delhi at New Delhi alone shall have the jurisdiction in all matters arising out of/touching and/or concerning the agreement regardless of the place of execution of this Agreement which is deemed to be Delhi.
15. Thus, in terms of above provisions, it can safely be said that the aforesaid agreement was executed at Delhi and the courts of Delhi alone shall have the jurisdiction in all matters arising out of the aforesaid agreement. Since, the respondent/OP has its registered office within the limits of jurisdiction of the Ld. District Forum, the District Forum(East) shall have the jurisdiction to entertain and try the complaint filed by the appellants/complainants. Accordingly, I accept the appeal, set aside the impugned order and restore the complaint to its original number.
16. Before parting with the present case , in my opinion this case, warrants imposition of costs on the respondent/OP in terms of the judgments of the Supreme Court in Ramrameshwari Devi v. Nirmala Devi (2011) 8 SCC 249 and of Hon’ble High Court in Padmawati v. Harijan Sewak Sangh. The respondent/OP is a dishonest litigant, who has raised the frivolous pleas with the hope that it can, with the Court delays, drag the case for years and the other side would succumb to buy peace. If the other side does not so settle in the end, they are hardly compensated and remains a loser.
17. In Ramrameshwari Devi v. Nirmala Devi, (2011) 8 SCC 249, the Hon’ble Supreme Court has held that the Courts have to take into consideration pragmatic realities and have to be realistic in imposing the costs. The relevant paragraphs of the said judgment are reproduced hereunder:-

"45. ........We are clearly of the view that unless we ensure that wrongdoers are denied profit or undue benefit from the frivolous litigation, it would be difficult to control frivolous and uncalled for litigations. In order to curb uncalled for and frivolous litigation, the courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that court's otherwise scarce and valuable time is consumed or more appropriately wasted in a large number of uncalled for cases."

 

"52. The main question which arises for our consideration is whether the prevailing delay in civil litigation can be curbed? In our considered opinion the existing system can be drastically changed or improved if the following steps are taken by the trial courts while dealing with the civil trials."

 

A and B xxx xxx xxx ―C. Imposition of actual, realistic or proper costs and or ordering prosecution would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants. Imposition of heavy costs would also control unnecessary adjournments by the parties. In appropriate cases the courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings.

 

D. The Court must adopt realistic and pragmatic approach in granting mesne profits. The Court must carefully keep in view the ground realities while granting mesne profits."

 

E and F xxx xxx xxx "G. The principle of restitution be fully applied in a pragmatic manner in order to do real and substantial justice."

 

54. While imposing costs we have to take into consideration pragmatic realities and be realistic what the Defendants or the Respondents had to actually incur in contesting the litigation before different courts. We have to also broadly take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses which have to be incurred towards drafting and filing of the counter affidavit, miscellaneous charges towards typing, photocopying, court fee etc.

 

55. The other factor which should not be forgotten while imposing costs is for how long the Defendants or Respondents were compelled to contest and defend the litigation in various courts. The Appellants in the instant case have harassed the Respondents to the hilt for four decades in a totally frivolous and dishonest litigation in various courts. The Appellants have also wasted judicial time of the various courts for the last 40 years.

 

56. On consideration of totality of the facts and circumstances of this case, we do not find any infirmity in the well reasoned impugned order/judgment. These appeals are consequently dismissed with costs, which we quantify as Rs. 2,00,000/- (Rupees Two Lakhs only). We are imposing the costs not out of anguish but by following the fundamental principle that wrongdoers should not get benefit out of frivolous litigation."

 

18. In Padmawati v. Harijan Sewak Sangh, 154 (2008) DLT 411, the Hon’ble High Court imposed costs of  Rs.15.1 lakhs and noted as under:

 

"6. The case at hand shows that frivolous defences and frivolous litigation is a calculated venture involving no risks situation. You have only to engage professionals to prolong the litigation so as to deprive the rights of a person and enjoy the fruits of illegalities. I consider that in such cases where Court finds that using the Courts as a tool, a litigant has perpetuated illegalities or has perpetuated an illegal possession, the Court must impose costs on such litigants which should be equal to the benefits derived by the litigant and harm and deprivation suffered by the rightful person so as to check the frivolous litigation and prevent the people from reaping a rich harvest of illegal acts through the Courts. One of the aim of every judicial system has to be to discourage unjust enrichment using Courts as a tool. The costs imposed by the Courts must in all cases should be the real costs equal to deprivation suffered by the rightful person."

 

19. It is an admitted fact that respondent/OP after getting a sum of Rs. Rs.3,45,094/- as early in January, 2012, has been enjoying that money and interestingly, he is also in possession of the flat in question. Respondent/builder in the present case wants to have the cake and eat it too, as admittedly he has received substantial amount of the flat. Thus, Respondent/OP being the builder is enjoying the possession of the flat as well as substantial amount of consideration paid by the appellants/complainants. On the other hand, appellants/complainants after having paid substantial amount of consideration are still waiting possession of the flat.
20. Further, Respondent/OP in the present case has raised sham defence before the District Forum and in order to escape from justice and to deprive the appellants/complainants did not come to assist this Commission in disposal of the present appeal and has taken adjournments after adjournment on one ground or the other. As stated above, the main counsel for the respondent/OP has never appeared before this Commission and even did not bother to appear despite directions.
21. False claims and defences are serious problems with real estate litigation, predominantly because of ever escalating prices of the real estate. Litigation pertaining to valuable real estate properties is dragged on by unscrupulous litigants in the hope that the other party will tire out and ultimately would settle with them by paying a huge amount. It is a matter of common experience that Court's otherwise scarce time is consumed or more appropriately, wasted in a large number of uncalled for cases.
22. It is the duty of the Courts to see that such wrong doers are discouraged at every step and even if they succeed in prolonging the litigation, ultimately they must suffer the costs of all these years long litigation. Imposition of actual, realistic or proper costs and/or ordering prosecution in appropriate cases would go a long way in controlling the tendency of filing false cases.
23. On consideration of totality of the facts and circumstances of this case, I find it appropriate that respondent/OP is liable to pay costs to the appellants/complainants for raising sham defence and for delaying the matter by taking adjournment after adjournment, which I quantify as Rs.50,000/- (Rupees Fifty Thousand only). I am imposing the costs not out of anguish but by following the fundamental principle that wrongdoers should not get benefit and keeping in view the peculiar facts and circumstances of the case and the conduct of respondent/OP in delaying the matter thereby depriving the appellants/complainants from their valuable rights.
24. Parties are directed to appear before the District Forum(East) on 26.11.2019. On the said, respondent/OP shall pay the cost to appellants/complainants, failing which they shall also be liable to pay interest @ 9% p.a., till realization. Thereafter, the Ld. District Forum shall proceed further in the matter in accordance with law.
25. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum for information.

Thereafter, the file be consigned to record room.

 

 

(Salma Noor)

Presiding Member