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Advocate Jayashree Kulkarni for the complainant
Advocate K.R.Maniyar for the Opponents
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Per Hon’ble Shri. V. P. Utpat, President
:- JUDGMENT :-
Date- 21st April, 2014
This complaint is filed by consumer against the Country Vacation for deficiency in service u/s 12 of the Consumer Protection Act, 1986. Brief facts are as follows-
[1] Complainant is resident of Kalas, Pune. Opponent Nos. 1 and 2 are dealing in providing various services such as hotel, resort, holiday home, club facilities etc. Complainant was impressed by the advertisement and approached to the Opponent No.1. She was asked to attend the Seminar on 5/9/2010. She had attended the Seminar along with her husband. At that time, she was convinced for depositing Rs.2,00,000/- for being Member of the club. The installment facility was also given to her. She had paid Rs.1,05,000/- through Bank. Opponents have failed to give the gifts which were assured. They have agreed to refund Rs.1,05,000/- within 45 days. Hence, she had issued notice to the Opponents through Advocate. But as the Opponents failed to comply with the notice, Complainant has filed present complaint and asked for refund of money as well as compensation for mental and physical sufferings and costs of the proceeding. Her total claim is Rs.1,62,000/-.
[2] Opponents have failed to resist the complaint by filing written statement. But they have filed their written notes of argument.
[3] After considering the pleadings of both parties, scrutinizing the documentary evidence, affidavits, and argument, following points arise for the determination of this Forum. The points, findings and reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1 | Whether this Forum has jurisdiction to entertain the present complaint ? | In the negative |
2 | Whether this Forum has jurisdiction to adjudicate the dispute on merit ? | In the negative |
3 | What order ? | Complaint is returned to the complainant for presenting the same before appropriate Forum |
Reasons-
As to the Point Nos. 1 to 3-
[4] After considering the pleadings, it would reveal that the complainant had approached to the Opponents and deposited certain amount for enjoying the facilities which were assured by the Opponents. The complainant had produced office copy of notice, copies of cheuqes, letters issued by the complainant for cancellation of Membership and extract of complainant’s bank account. Complainant has also filed copy of agreement between the parties. Before entering into the merits of the case, it is necessary to verify as to whether this Forum has jurisdiction to entertain the present complaint. The learned Advocate for the Opponents argued before the Forum that, in view of the agreement between the parties, complainant had relinquished jurisdiction of Poona Forum voluntarily. Hence, this Forum has no jurisdiction to entertain the present complaint. Hence, this Forum has no jurisdiction to entertain the present complaint. He drew our attention to clause No.21 of the agreement which laid down as follows-
“21. Only Courts of Secunderabad and Hyderabad will have jurisdiction in case of disputes arising, if any.”
[5] The learned Advocate for the complainant argued before the Forum that as the entire payment was made by the complainant within the jurisdiction of this Forum, the transaction took place at Pune, hence, this Forum has the jurisdiction to entertain the present complaint. The learned Advocate for the Opponents argued that, as the complainant had relinquished the jurisdiction of Pune Forum by entering into an agreement, now the complainant cannot say that, this Forum has the jurisdiction to entertain the present complaint.
[6] It reveals from the abovesaid clause that courts in Hyderabad and Secunderabad shall alone have jurisdiction. In order to support the contention of the said clause the learned Advocate for the Opponent strongly relied upon the ruling of Hon’ble Supreme Court of India between ABC Laminart Pvt. Ltd vs. A.P.Agencies, Salem in Civil Appeal No. 2682 of 1982 decided on 13/3/1989. In the said ruling it has been observed by the apex court that,
“where the parties to a contract agreed to submit the dispute arising from it to a particular jurisdiction which would otherwise also be a proper jurisdiction under the law their agreement to the extent they agreed not to submit to other jurisdictions cannot be said to void as being against public policy.”
[7] Similar view is taken by the apex Court in the recent judgment of the Hon’ble Supreme Court in Civil Appeal No.5086 of 2013 between M/s. Swastik Gases P. Ltd. vs. Indian Oil Corp. Ltd., decided on 03/07/2013. It has been observed in this ruling, after discussing various judgments of apex Court that, the parties can agreed upon the place of jurisdiction. The latin maxim expressio unius est exclusio alterius was referred in the said judgment. Further it has been observed that,
“This legal maxim means that expression of one is the exclusion of another. By making a provision that the agreement is subject to the jurisdiction of the Courts at Kolkatta, the parties have impliedly excluded the jurisdiction of other courts. Where the contract specifies the jurisdiction of the courts at a particular place and such courts have jurisdiction to deal with the matter, we think that an inference may be drawn that parties intended to exclude all other courts. A clause like this is not hit by section 23 of the Contract Act at all. Such clause is neither forbidden by law nor it is against the public policy. It does not offend section 28 of the Contract Act in any manner. ”
[8] In the present proceeding the complainant has waived and excluded their right to initiate the proceeding at branch office and in view of the above noted ruling, that agreement is not against the public policy. After considering the ratio laid down in the above quoted ruling, we held that this Forum has no jurisdiction to try and entertain the present complaint and the complaint should be returned to the complainants for presenting the same in proper Forum. Hence, Forum held that the issue as regards adjudication of the dispute on merit in the negative. We answer the points accordingly and pass the following order-
:- ORDER :-
1. Complaint is hereby returned to the complainant for presenting the same before appropriate Forum within one month from the date of order.
2. As per peculiar circumstances there is no order as to costs.
3. Both parties are directed to collect the sets
which are provided for the Members within one month from the date of order. Else those will be destroyed.
Copy of order be supplied to both the parties free of cost.
