Delhi

North East

CC/178/2018

Shashank Jain - Complainant(s)

Versus

Bona Vita Technologies Pvt. Ltd. & Ors. - Opp.Party(s)

30 Oct 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: N-E

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Case No. 178/18

 

Shashank Jain                                                                                        Complainant

 

Vs

 

Bona Vita Technologies Pvt Ltd.                                                      Opposite party

 

 

                                                                          ORDER PASSED ON:- 30.10.2018

 

Order passed by Ms. Sonica Mehrotra (Member)

The complainant has argued that the present complaint is maintainable on grounds of territorial jurisdiction on grounds that he had booked a foreign package from OP from his residential address falling within the territorial jurisdiction of this Forum and had made part payment for the package online and the remaining payment through his account holding bank HDFC located at Shahdara, Delhi and has also filed police complaint against the OP with P.S. Shahdara in support his contention. The complainant has filed the HDFC Bank counter foil dated 13.02.2018 of payment of Rs. 31,750/- paid to OP1 and judgment of Hon’ble NCDRC in Spice Jet Ltd Vs Ranju Aery I (2017) CPJ 546 (NC) in support of his argument of maintainability of complaint on grounds of territorial jurisdiction for booking of travel through internet from his place of residence.

We have heard the arguments on maintainability of the complaint on grounds of territorial jurisdiction addressed by the counsel of the complainant and have perused the complaint and documents filed therewith.

Section 11(2) (a),(b),(c) of the CPA governs the determination of territorial jurisdiction of the District Forum for entertaining a complaint and leaves no ambiguity for admission of complaint to be instituted in a District Forum within the local limits of whose jurisdiction the opposite party (ies) or any of the opposite parties at the time of institution of complaint actually and voluntarily resides or carries on business or has a branch office or personally works for gain and in case of several opposite parties, complaint to be filed only at one particular place on the choice of the complainant subject to the condition that

1. the District Forum, where the complaint has been instituted has given permission to the complainant to institute his complaint in that Forum despite the fact that some of the opposite parties are not residing or not having branch, or are not carrying on business or are not working for gain within the local limits of the jurisdiction of such District Forum; or
2. the opposite parties not so residing, or not having branch office or not carrying on business or not personally working for gain within such territorial limits, acquiesce in such institution.

Clause b of sub section 2 of section 11 has not provided any criteria or guideline on basis of which the complainant can ensure that the District Forum would, in all probability grant such permission; this therefore is a matter within the discretion of the District Forum.

The Hon’ble SCDRC in an iconic recent judgment dated 01.11.2017 in the case of Prem Joshi Vs Jurasik Park Inn passed in FA No. 488 of 2017 has dealt with similar issue of territorial jurisdiction in which judgment the Hon’ble State Commission has pertinently observed that vide notification dated 20.04.1999, the Hon’ble Lt. Governor of NCTD divided Delhi in ten Districts defining their respective area and this notification was issued for being complied with instead of being flouted. Obviously, therefore, the purpose of defining jurisdiction was to regularize and distribute the work to bring certainty instead of creating chaos. If all the litigants prefer to chose one Forum, that Forum would be overburdened and remaining nine Forums would become idle.

The Hon’ble SCDRC further observed that appellant of FA 216/12 namely Mahesh Ram Nath preferred Revision Petition in National Commission which was registered as No. 2816/2016. The said petition came up for hearing on 17.08.2012. National Commission called for report from President of Hon’ble State Commission as to whether there was any demarcation of territorial jurisdiction and if so whether the same being followed or not and if not for what reasons. On 27.09.2012 it was observed that territorial jurisdiction of various district Forums of Delhi was a matter of great public importance. Therefore, Secretary & Commissioner, Deptt of Consumer Affairs, Govt. of NCT of Delhi was directed to appear in person on notification. Mr. Shakti Bangar, Asstt. Director assured the Hon’ble National Commission to communicate directions of National Commission to officers concerned for compliance. Hon’ble National Commission was informed by some advocate that notification relating to distribution of jurisdiction in various consumer for a functioning in Delhi was not being followed in its letter and spirit. Therefore Deptt of Consumer Affairs was directed by Hon’ble NCDRC to furnish reports from all the District Forums as to whether they were strictly following the notification and if not, they were to give the number of cases which have been entertained / decided contrary to the stipulation contained in notification. Mahesh Ramnath revision petition was dismissed by Hon’ble NCDRC on 09.09.2014. However irrespective of such dismissal, question of territorial jurisdiction already stood decided before that by Hon’ble NCDRC by orders dated 27.09.2001 itself. Further directions of Hon’ble NCDRC dated 05.11.2012 apprised the Ld. Commissioner Cum-Secretary Department of Consumer, Food and Civil Supplies Government of NCT of Delhi about its concern with regard to exercise their territorial jurisdiction by ten consumer Fora for which the Ld. Commissioner had assured the Hon’ble NCDRC that various Distt Fora  working in NCTD shall exercise its jurisdiction and power strictly and accordance with the demarcation of their respective jurisdiction in terms of Government of Delhi, Director of Consumer Affair, Gazette Extra Ordinary (part IV) notification No. F.50(47)46/F&S (CA) dated 20.04.1999. According to Hon’ble NCDRC this is otherwise necessary to avoid Forum shopping and thereby has over ruled the view taken by Hon’ble SCDRC in Mahesh Ram Nath case and impliedly over ruled other such decision of Hon’ble SCDRC including Sarwan Singh case, Sardar Swaranjeet Singh case, Holy Family Hospital etc. On perusal of the above said notification it is clear that by virtue of this said notification, Hon’ble Lt. Governor of Delhi has made specific provision in general for allocation of business amongst various District Forums ear marking and specified the territories falling under different police station to each District Forum. The cause of action, residence of the OP, head office or branch office or area corporation of OP shall determine the territorial jurisdiction of each district Forum in consonance with the area specified in the said notification of Hon’ble LG of Delhi. Moreover, both the branch office and cause of action partly or wholly should coexist within the territorial jurisdiction of the district Forum to attract of its jurisdiction in view of Sonic Surgical’s case. In Sonic Surgicals Vs National Insurance Co. Ltd, the Hon’ble Supreme Court on 20.10.2009 has sealed the issue of territorial jurisdiction leaving no ambiguity with respect thereto.  

The Director, Consumer Affairs, issued a circular No. F50(21)/2003/F&S/CA/1053-1054 dated 07.11.2012 conveying the feelings of National Commission regarding not following the notification in its letter and spirit. It was also conveyed that National Commission took a very serious view and stated that inspite of notification promulgated by Govt. of NCT of Delhi on 20.04.1999 clearly demarcating jurisdiction district wise, District Forums were violating the order. On the basis of said letter Registrar of Hon’ble SCDRC wrote a letter No. F1. (Misc)/SC/2012/5045 dated 08.11.2012 advising President, District Forums to strictly comply with the directions i.e. the above mentioned notification/circular. National Commission took a serious view about not following the notification defining territorial jurisdiction.

In view of forgoing observations made by the Hon’ble SCDRC and the notification dated 07.11.2012 issued by the Director Consumer Affairs, there is no ambiguity pertaining to the territorial jurisdiction in view of clear directions by the Hon’ble NCDRC to follow the said notification in letter and spirit.

In so far as the contention raised by the complainant of having booked the travel tickets online specific query was raised by this Forum for placing on record the documentary evidence in proof / support thereof that the part payments to OP were made online but the same are not on record and not in possession of the complainant by way of any credit card / debit card statement showing money transfer to the OP. Therefore the judgment placed on record / relied upon by complainant cannot come to his rescue.

 With respect to his second argument of the maintainability of the complaint in terms of payment made to OP through HDFC Bank Shahdara falling within the jurisdiction of this Forum as part cause of action under Section 11 (2) (c), the Hon’ble National Commission in the judgment of Puran Chand Wadhwa Vs Hamil Era Textiles Ltd (2003) 48 SCL 59 (NCDRC) was faced with an argument that section 11 (2) (c) of CPA and Section 20 (c) of CPC be read as same and in similar position for the purpose of Territorial jurisdiction under section 11 (2) (a) and (c) of CPA. The Hon’ble National Commission that both the aforementioned Sections had a common reading, stress that consumer Forums cannot go beyond or behind the provision of the Act and held that bank is only a facilitator to accept the money and to encash cheques. This is limited service being rendered by them. Further the Hon’ble National Commission in its decision in HUDA Vs Vipin Kumar Kohli 1995 (I) 235 CPJ (NC) held that no part of cause of action can arise at a place from where the bank draft was obtained to file a complaint as was also held in its later judgment of Anup Kumar Bhattacharya Vs Kundu Tirtha Special 2004 (I) CPR 76 (NC). The Hon’ble National Commission in its judgment of Ram Agency Vs Ashok Chandmal Bora 1995 (I) CPJ 36 (NC) had reversed/set aside of the decision of Hon’ble State Commission and held that mere purchase of bank draft from a branch at Ahmad Nagar by the complainant for sending part of the price money shall not entitle him to institute the complainant before District Forum Ahmad Nagar.   

In the present case none of the conditions laid down for admissibility of complaint under section 11 sub clause (a) (b) (c) is getting fulfilled in terms of the arraignment of opposite party (ies) in as much as it is neither residing nor carrying on business nor has a branch office nor is personally working for gain and lastly no cause of action wholly or in part has arisen within the jurisdiction of this Forum.  The complainant has failed to place on record any documentary proof of online payment made to OP towards booking of Holiday package with OP and mere money transfer through bank shall not accord any cause of action in part as already settled in the judgments afore cited. The Hon’ble Supreme Court in State of Madraas Vs C.P. Agencies AIR 1960 SC 1309 had held that “cause of action” is taken to mean every fact which if traversed, it would be necessary for the plantiff to prove in order to support his right to the judgment of court. Therefore the entire plaint has to be taken in to consideration to ascertain the bundle of facts which gave rise to cause of action and to determine whether any one or more of such facts accrue within the territorial jurisdiction of the court. The expression “wholly or in part arises” as per 11 (2) (c) means that some act on the part of defendant must be a part of cause of action.  

In light of the settled proposition of law with respect to the territorial jurisdiction, the above mentioned complaint is hereby dismissed in limine due to erroneous jurisdiction which does not accord or vest in this Forum power to entertain and adjudicate the present complaint. Let the present complaint therefore be returned to the complainant with liberty to the complainant to file the same before the appropriate Forum at South West Delhi as per section 11(2) of the Consumer Protection Act.  Let the copy of this be sent to the complainant free of cost. 

File be consigned to Record Room.

(N.K. Sharma)             President

(Sonica Mehrotra) Member