Advocate Likhit Gandhi for the Complainant
Advocate A P J P Dubey for the Opponent
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Per Hon’ble Shri. V. P. Utpat, President
:- JUDGMENT :-
Date – 4th December 2013
This complaint is filed by consumers against Country Vacations for deficiency in service u/s 12 of the Consumer Protection Act, 1986. Brief facts are as follows-
[1] Complainant is resident of Vishrantwadi, Pune 411 015. Opponent is a company who is dealing in the business of Holiday Club and selling o the lands to various customers. Complainant had obtained membership by paying Rs.95,000/-. Agreement was executed between the parties on 16/2/2011. As per the said agreement Opponent agreed to provide facilities like clubs, resorts, Gym, Spa, massage centre, restaurant, etc. throughout India, which are approved by the Opponent. Opponent did not provide any of the facility as per the agreement. Hence, complainant has filed this complaint for refund of amount of Rs.95,000/- alongwith interest @ 18% p.a. from 16/1/2011. Complainant has prayed for damages of Rs.50,000/- and costs.
[2] Opponent resisted the claim by filing written version and denied the contents of complaint in toto. It has flatly denied that there is deficiency in service on the part of the Opponent. It is the case of the Opponent that the complainant had executed an agreement and agreed that if the dispute arise between the parties, Secundarabad and Hyderabad courts alone have the jurisdiction to entertain the dispute between the parties. The so-called membership is an irrevocable membership and that cannot be cancelled and complainants are not entitled for refund of money which was paid by them. It is further contended that the complainants are not consumers and this Forum has no jurisdiction to try and entertain the present complaint. It is further contended that another aggrieved person Smt. Harjit Kaur Bindra who had signed the agreement had not filed any complaint. Hence, this complaint is not maintainable. The Opponent has prayed for dismissal of the complaint.
[3] Considering the pleadings of both parties, scrutinizing the documents, written argument and legal position, following points arise for my determination. The points, findings and reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1 | Whether this Forum has jurisdiction to entertain the complaint filed by the complainants ? | In the negative |
2 | Whether Opponent has caused deficiency in service ? | Does not survive |
3 | What order ? | Complaint is returned to the complainant for presenting the same before proper Forum. |
Reasons
As to the Point Nos. 1 to 3-
[4] The undisputed facts in the present proceeding are that the complainant had entered into an agreement with the Opponent by paying Rs.95,000/-. The Opponent has not produced any documentary evidence to show that the membership card was issued in the name of complainants and complainants have availed any of the amenities and facilities which had been referred in the alleged agreement. The learned Advocate for the complainants argued before me that the transaction took place within the jurisdiction of the present Forum, the agreement was executed within the jurisdiction of this Forum, the Opponent is having branch within the jurisdiction of this Forum, hence, this Forum has the jurisdiction to entertain the present complaint. Per contra, the learned Advocate for the Opponent argued before me that if the agreement which is executed by the complainants in favour of the Opponent is carefully perused, it would reveal that the complainants had agreed to waive the jurisdiction other than Hyderabad and Secundarabad. He drew my attention to clause No.11 of the said agreement which is as follows-
“ It is agreed between the Parties herein that in the event of any disputes, claims or differences arising under the present Purchase Agreement, the same shall be referred to ARBITRATION under the provisions of Arbitration and Conciliation act of 1996 and amendments thereof, by Arbitrator to be appointed by the COMPLNY/I PARTY herein and the AWARD passed by the Arbitrator shall be final and binding on all parties herein and that the courts in Hyderabad and Secunderabad alone shall have jurisdiction. “
[5] 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.”
[6] 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 expression unius est exclusion 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. ”
[7] In the present proceeding the head office of the Opponent is situated at Hyderabad and as per section 11 of the Consumer Protection Act, 1986, the places of head office as well as branch of the Opponent are having the proper jurisdiction.
[8] In the present proceeding it should be presumed that the complainants have 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, I 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.
[9] The learned Advocate for the complainant argued before me that parties cannot by agreement confer jurisdiction on Court not possessed by it under the Code. But agreement that one of the Courts having such jurisdiction alone shall try dispute is not contrary to public policy. In that context, complainant has relied upon ruling AIR 1971 Supreme Court, page 740 in case of Hakam Singh vs. M/s. Gammon (India) Ltd. In the said ruling it has been observed that,
“It is not open to the parties by agreement to confer by their agreement jurisdiction on a Court which it doesnot possess under the Code, But where two courts or more have under the Code of Civil Procedure jurisdiction to try a suit or proceeding an agreement between the parties that the dispute between them shall be tried in one of such courts is not contrary to public policy. Such an agreement does not contravene S. 28 of the Contract Act. “
[10] In the present proceeding the head office of the Opponent is situated at Hyderabad and branch is situated at Pune. When two Forums are available, the parties have restricted their right to adjudicate the dispute by executing the agreement and that is not against the public policy.
[11] The learned Advocate for the complainant argued before me that the Opponent has not issued membership card and that would amount to deficiency in service. Hence, the amount paid for membership and compensation shall be awarded in favour of complainants. Once it is observed that this Forum has no jurisdiction to entertain the present complaint, the other issues cannot be decided by this Forum. Hence, I held that the issue as regards deficiency in service is treated as does not survive. I 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.
Place – Pune
Date – 04/12/2013
