DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (CENTRAL)ISBT KASHMERE GATE DELHI

COMPLAINT CASE NO. 433/2016

Coram:       Ms. Rekha Rani, President

                    Shri Vyas Muni Rai, Member

ORDER

Ms. Rekha Rani, President

1. Sh. Raman Kumar Sharma (in short the complainant) filed the instant complaint under section 12(a) of the Consumer Protection Act, 1986 pleading therein that M/s Carnation Developers Pvt. Ltd. (in short OP) is a builder.  He approached the OP for booking of a residential flat in its newly introduced project, namely, ‘Krish City Heights’.  Complainant paid booking amount of Rs. 15,000/- and Rs. 1,21,594/- on 25.12.2013 and 10.01.2014 respectively.  He further paid Rs. 1,36,594/- to OP on 02.05.2014.  Complainant is allowed Unit No. A/1310 on 13^th Floor having separate built area of 485 Sq. feet vide allotment letter dated 11.07.2014.  As per agreement, OP promised to hand over possession of the flat after 36 months from the date of start of the construction of the particular tower. Complainant has been waiting for possession of his flat but OP has not even started construction. Complainant then sent cancellation request on 08.01.2016 for refund of paid amount with interest. OP replied that cancellation cannot be processed as per clause 11 of the application form. Hence, the instant complaint was filed seeking refund of the paid amount of Rs. 2,76,560/- with interest at the rate of 18% P.A. from the date of booking, Rs. 1,00,000/- as compensation for deficiency in service.

2. OP has filed reply and has strongly objected to the territorial jurisdiction of this Commission to proceed with the matter.  We have pursued the case file and heard Adv. Sumit Srivastav for the complainant and Ms. Komal for the OP.

3. In Narender Chopra vs. Jai Prakash Associates in CA No. 3258/2017 order dated 16.03.2021 it was observed by National Consumer Disputes Redressal Commission that Consumer Protection Act 2019 does not have retrospective operation and that complaint filed before coming into force of the Act of 2019 shall be adjudicated by the District Forum/ Commission as per Section 11 of the Consumer Protection Act-1986. 
4. The instant complaint was filed on 15.12.2016 so Section 11(2) of the Consumer Protection Act-1986 applies which reads as follows:

“11 (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 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 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

3.    the cause of action, wholly or in part, arises.”

5. Although complainant is resident of Delhi, the complaint does not lie here because it is governed by the old Act having been filed prior to coming into force of the New Act.
6. Our State Commission in Ms. Sunita Sehgal and Mr. Varun Sehal vs. Ireo Grace Realtech Private Limited in Complaint No. 1497/2016 held vide order dated 09.02.2017 as under:-

“2. We have heard counsel for the complainant at the stage of admission.  The project is located at Gurgaon.  The copy of receipts show that payment was made by cheque drawn at SBI.The name of branch is conspicuously missing.  Counsel for the complainant did not want to disclose the name of the branch.  He did not agree to file copy of cheque book or pass book to ascertain in which branch the complainant has account.  So the plea that complainant did not retain copy of cheque appears to be an attempt to keep this Commission in dark.  Counsel for complainant stressed that regd. Office of OP is in Delhi and so this Commission has the jurisdiction.  He relied upon decision of High Court of Kerala in HCL Info Systems Ltd. Vs. Anil Kumar ILR 2007 (3) Kerala 40 to make out that defendant company is to be deemed to carry on business at New Delhi where it has its regd. Office. Firstly that is the decision regarding civil court in CPC and not in consumer court governed by consumer protection Act. Section 20 CPC contains an explanation that company shall be deemed to carry on its business at its sole and principal office in India.  There is no similar explanation in consumer protection Act.  Hence the cited judgement is not applicable to the case in hand.

3. Similar question reached Hon'ble Supreme Court in Sonic Surgical vs. National Insurance Company Ltd, IV (2009) CPJ 40. In the said judgement Hon'ble Supreme Court held that it could not agree with counsel of the appellant. It was held that interpretation has to be given to amended section 17(2) (b) of the Act which does not lead to absurd consequence. If contention of counsel for appellant is accepted, it would mean that even if cause of action has arisen in Ambala, then too the complainant can file complaint even in Tamil Nadu or Gauhati or any where in India where branch office of insurance company is situated.  That would lead to absurd consequence and lead to bench hunting.  The expression on branch office would mean branch office where cause of action has arisen.  No doubt said interpretation would be departing from plain and literal word of section 17 (2) (b) of the Act but such departure is sometime necessary (as it is in this case) to avoid absurdity.

4.        If branch office in clause 17 (2)(b) has to read alongwith cause of action, the same interpretation should apply to section 17(1)(a) so  as to mean "OP voluntarily resides or carries on business..........." alongwith cause of action.”

7. Question of territorial jurisdiction is now settled by Apex Court in the case of Sonic Surgical Vs. National Insurance Company Ltd (IV) 2009 CPJ 40. Wherein it was held that amended section 17 (2) (b) of the Consumer Protection Act has to be interpreted in such a way which does not lead to absurd consequences and bench hunting.

8. Ld. Counsel for the OP has stated that Clause No. 27 of the Application Form of the OP duly agreed and signed by the complainant at the time of booking of the unit clearly provides the Court having original jurisdiction in the Tehsil of Tijara/ Alwar alone shall have the jurisdiction in all matters relating to or arising out of this transaction.

9. Ld. Counsel for the OP further stated that reference may also be made to the receipts of payment placed on record by the complainant whether the project is clearly shown at Alwar Road.

10. Ld. Counsel for the OP also stated that even the allotment agreement dated 24.07.2015 between the complainant and the OP was made at Bhiwadi and the Stamp paper was purchased at Rajasthan.
11. Ld. Counsel for the OP has relied on judgement of our predecessor Bench in No. DF/ Central/ 2015 /3863 to 3868 “Ankur Bhatia vs M/s Carnation Developers Pvt. Ltd.” vide order dated 19.08.2015 it was observed that- 

“In the case of A.B.C.leminart V/s A.P. Agencies (1989) 2 SCC 163, the Hon’ble Supreme Court had held that any clause which ousts the jurisdiction of all courts having jurisdiction and conferring jurisdiction on a court not otherwise having jurisdiction would be invalid.The court further held that the parties cannot by an agreement confer jurisdiction on a court which does not have jurisdiction.It also held that only where two or more courts have the jurisdiction to try a suit or proceeding, an agreement that the disputes shall be tried in one of such courts is not contrary to public policy.It was held that the ouster of jurisdiction of some courts is permissible as long as the court on which exclusive jurisdiction is conferred has jurisdiction.”

In the case before us, the complainants had booked a residential flat with the OPs in their project “Krish City II” situated at village Tapukara, Tehsil Tijara District Alwar (Rajasthan).The complainant in their complaint have alleged that this forum has jurisdiction to try this compliant as the registered office of OP1 is situated in Delhi.The OP, however, has taken refuge behind clause no. 27 of the agreement signed between the parties which reads as under :-

         “that the court having original jurisdiction in the tehsil of Tijara/ Alwar alone shall have the jurisdiction in all matters relating to or arising out of this transaction.”

It has been contended on behalf of the OP that in view of above ouster clause in the agreement signed between the parties, parties had agreed to limit the jurisdiction of the courts in Tejara/ Alwar in respect of any matter arising out of the contract.It has been contended that the Courts/ Fora in Delhi has no jurisdiction to entertain and try the present complaint.

12. Ld. Counsel for the complainant, on the other hand, has referred to judgement of National Commission in Housing Board Haryana vs. Inderjit Garg, Revision Petition No. 3263 of 2011 in which it was observed that under Section 11 of the Consumer Protection Act, 1986, a complaint can be filed where the opposite party or each of the opposite party resides or where the cause of action or a part of cause of action arises. 
13. We find substance in submissions made on behalf of the OP.  The immoveable property in question is situated at Rajasthan (Bhiwadi).  The site of the OP is also there Merely because registered office of the OP is at Delhi it does not confer jurisdiction with this forum in view of the judgement of Hon’ble Apex Court in ‘Sonic Surgical (Supra).  Clause 27 of the agreement between the parties also ousted jurisdiction of any other court except the Court at Tijara/ Alwar.
14. The complaint be accordingly returned to the complainant for its presentation before Court / Forum of competent jurisdiction.
15. File be consigned to record room.

16. Copy of this order be sent to the parties as per rules.

Announced on this 29^th Marchof 2022.