Between:
Sri Pappu Raghu Kumar, S/o Sri Bhaskara rao, Lecturer Govt.Junior College, Now residing at Vuda Colony, Plot No.316, Babametta,
VIZIANAGARAM.
…Complainant
And
Sri Ch.V.Subramanyam, S/o Raja Setty, Managing Partner,
Sri Rastu Developers, Now situated at Dr.No.80-20-1-B,
1st Floor, Muthoot Finance Block, A.V.Apparao Road,
RAJAHMUNDRY.
…Opposite Party
This complaint is coming on for final hearing before us in the presence of Sri I.Suresh, Advocate for the complainant and OP called absent and no representation and having stood over for consideration, the Forum made the following:-
O R D E R
This complaint is filed Under section-12 of Consumer Protection Act, seeking the reliefs to direct the OP to repay the advance amount of Rs.5,00,000/- (Rupees Five Lakhs Only) paid by him with interest at the rate of 24% per annum from the date of payment till the date of actual repayment and to pay Rs.2,00,000/- (Rupees Two Lakhs Only) towards loss sustained by the complainant and to pay Rs.20,000/- (Rupees Twenty Thousand Only) towards damages for causing mental agony to the complainant on the following averments:-
The complainant approached the OP who is carrying on business in construction in the name and style of Srirastu Developers and has entered into an agreement and the OP has executed a sale agreement on 30.07.2012 and as per its terms the OP agreed to construct an independent house in plot no.155 in an extent of 220 square yards consisting of 1,000 square feet slabbed area house under DTCP approval lay-out No.28/2010 independent house bearing no.155 within specific boundaries in varisan village, Pydibhimavaram Gram Panchayat of Srikakulam District for a total consideration of Rs.14,00,000/- (Rupees Fourteen Lakhs Only) and the complainant paid an advance amount of Rs.3,50,000/- (Rupees Three Lakhs and Fifty Thousand Only) on the date of agreement and agreed to pay the remaining sale consideration of Rs.10,50,000/- (Rupees Ten Lakhs and Fifty Thousand Only) in 35 monthly installments at the rate of 30,000/- per month. The complainant started paying the installments from the month of August, 2012 till December 2012 i.e. a total sum of Rs.1,50,000/- (Rupees One Lakh Fifty Thousand only) by way of cheques drawn on State Bank of India, Kottavalasa and the cheques were honoured by the State Bank. In the month of January, 2013 the complainant went to the office of the O.Ps. to pay the monthly installments for the month of January, 2013 and came to know that the office of the OP as mentioned in the sale agreement at Visakhapatnam is closed and after making due enquiry the complainant came to know that no construction activity was commenced at all and as such the complainant did not pay the monthly installments. It is averred that the complainant came to know that the OP is carrying on the business at Rajahmundry upon which he went to Rajahmundry and met the OP personally and demanded him to pay back the amount of Rs.5,00,000/- (Rupees Five Lakhs Only) with interest at the rate of 24% per annum but of no avail. The complainant issued notice to the OP on dated 23.06.2013 and 16.09.2013 in this regard and the OP having received the said notices did not respond to the same. Since there is deficiency of service on the part of OP in fulfilling the terms of the agreement the complainant was constrained to file complaint seeking the above said reliefs.
Though the notice was served on the OP for his appearance in this Forum he did not come to the Forum to contest the matter. To substantiate the claim of complainant he filed the evidence affidavit and got marked exhibits A1 to A5. The counsel for complainant addressed his arguments.
Now the point for consideration is (Whether the complainant is entitled to get the reliefs prayed for) Whether this Forum is having jurisdiction to entertain this complaint? Having seen the material placed on record it came to light that no part of contract did take place within the jurisdiction of this Forum, as the parties as well as the property in dispute are not situated within the jurisdiction of this Forum. A preliminary issue is framed to know whether this Forum is having jurisdiction to entertain the complaint. As seen from the contents of the complaint, the complainant is a resident of Vizianagaram whereas the OP is the resident of Rajahmundry and the property in dispute is a house situated in varisam village Pydibhimavaram Gram Panchayat, Ranastalam Mandal, Srikakulam District. As seen from the contents of Exhibit A1 zerox copy of sale agreement the same was executed at the office of OP in Visakhapatnam on 30.07.2012. It is averred that the agreement is entered into in the month of July, 2012 and the complainant started paying the installments at the rate of 30,000/- from the month of August, 2012 till December, 2012 by way of cheques drawn on State Bank of India, Kottavalasa and the cheques were honoured by the State Bank of India, Kottavalasa which is in Vizianagaram District. Basing on the said averments, the learned counsel for the complainant has contended that as part of transaction did take place within the jurisdiction of Vizianagaram District this forum is having jurisdiction to entertain the complaint.
As per section-11 of C.P.Act a complaint shall be instituted in a District Forum within the local limits of whose jurisdiction the OP or each of the O.Ps and 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 the branch office) or personally works for gain or the cause of action wholly or in part arises. Coming to case on hand It is manifest that the OP did not reside or carry business within the jurisdiction of this Forum. Similarly no cause of action did arise within the jurisdiction of this Forum as the property in dispute is situated within the jurisdiction of Srikakulam and OP did his business by staying at Visakhapatnam. In a decision in III (2013) CPJ 38B (CN) in between commercial motors Vs Vijay Prakash Joshi it is held:-
Appellant does not actually and voluntarily resides or carries on business or has branch office or personally works for gain in the territorial jurisdiction of District Forum pithoragarh. Merely because finance for purchase of vehicle was provided to complainant by Bank situated at pithoragarh, District Forum pithoragarh had no territorial jurisdiction in the matter.
In another decision in I (2014) CPJ 210 Punjab State Consumer Disputes Redressal Commission Chandigarh, Hemanth Goyal Motors Private Ltd Vs Varun Bharathi F.A.No.1485 of 2011 decided on 11.12.2013.
In order to make out the case that a part of the cause of action had arisen at Barnala, the complainant tried to project in the complaint that the Sales Executive of the opposite parties visited him and assured that they were in a position to deliver the vehicle at Barnala provided the payment was made in advance and he made the payment accordingly by means of the bank draft. However, he himself averred in the complainant at Patiala, which caused inconvenience to him and that the amount of the draft was also payable at patiala. From the averments made in the complaint, it cannot be held that any part of the cause of action had arisen at Barnala. The Sales Executive of the O.Ps. might have persuaded the complainant to enter into a contract with them but ultimately the contract was entered at Patiala. Mere assurance regarding the delivery of the car is not a part of the cause of action. Cause of action means a bundle of facts, which a party is required to prove in order to have decision in his favour. The facts to be proved by the complainant were that he entered into a contract to purchase the car for which the amount was paid and that the said amount was received by the O.Ps. in excess and that instead of model of 2011, model of 2010 was delivered to him. All these facts occurred at Patiala and as such, only the District Forum at patiala had the jurisdiction to entertain and decide the complaint. The same could not have been entertained and decided by the District Forum at Barnala as no part of the cause of action had arisen at that place.
As seen from the principles laid down in the decisions cited supra the mere insistence made by the men of OP to enter into a contract or payment of consideration amount through a bank situated within the jurisdiction of a particular district where the OP did not reside and disputed property does not situate the Forum situated in the said District does not have territorial jurisdiction to entertain the complaint.
As we have already stated supra the property in dispute situates in Srikakulam District and the office of the OP situated at Visakhapatnam where exhibit A1 agreement was entered into between the parties. As seen from the contents of complaint at present the OP is residing at Rajahmundry hence the consumer Forums at Srikakulam within whose jurisdiction the property situates, or Visakhapatnam where part of cause of action has arisen by entering into exhibit A1 transaction or at Rajahmundry where the OP presently resides gets jurisdiction to entertain this complaint. Mere sending of installments through cheques drawn on State Bank of India, Kottavalasa towards part payment the consumer Forum situated in Vizianagaram does not get territorial jurisdiction to entertain this complaint.
Hence the complaint petition be returned to the complainant for filing it in the District Consumer Forum at Srikakulam within five days from the date of this order.
Dictated to the Typist, transcribed by her, corrected by me and pronounced by us in the open Forum, this the 10th day of September, 2014.
Member President
C.C.No.74 of 2013
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For complainant:- For opposite parties:-
PW 1. RW 1.
DOCUMENTS MARKED
For complainant:-
Ex.A-1 Xerox copy of the Sale Agreement, dt.30.07.2012.
Ex.A-2 Xerox copy of the pass bearing No.11622911675, through S.B.I
Kothavalasa.
Ex.A-3 Letter addressed by the complainant to the Opposite Party,
dt.23.06.2013.
Ex.A-4 Receipts issued by Srirastu Developers and SBI statement of
Complainant, dt.22.04.2012.
Ex.A-5 Registered Lawyer’s Notice, dt.16.09.2013.
For O.Ps. :- – NIL –
President
