Chandigarh

DF-II

CC/343/2016

Sukhwant Singh Saini - Complainant(s)

Versus

Director Unitech House - Opp.Party(s)

In Person

01 Dec 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

 

Consumer Complaint No.	:	343/2016
Date of Institution	:	17.05.2016
Date of Decision	:	01.12.2016

 

                                                

                                                         

Sukhwant Singh Saini s/o Sh.Piara Singh aged 68 years r/o C-60, Sector 48-B, Kendriya Vihar, Chandigarh

                                      ...  Complainant.

Versus

1.       Director, Unitech House L-Block South City-1, 5^th Floor, Gurgram-122001.

 

2.       Branch Manager, Bajaj Capital Ltd., SCO 341-42, First Floor, Sector 35-B, Chandigarh

…. Opposite Parties.

 

BEFORE:      SHRI RAJAN DEWAN, PRESIDENT

SMT.PRITI MALHOTRA, MEMBER

SHRI RAVINDER SINGH, MEMBER

 

Argued by:

Complainant in person.

Sh.Gopal Sharma, Advocate for OP No.2.

OP No.1 exparte.

 

PER RAJAN DEWAN, PRESIDENT

1.           In brief, the case of the complainant is that he deposited a sum of Rs.2 lacs in the fixed deposit scheme of OP No.1 through OP No.2 for three years with date of deposit as 26.12.2012 and date of maturity as 26.12.2015.  The rate of interest was 12.50%.  After the date of maturity, he requested OP No.1 vide letters (Annexures C-3 to C-5) to refund the maturity amount but to no effect. Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of the OPs, the complainant has filed the instant complaint.
2.           Despite due service through registered post, OP No.1 failed to put in appearance and as a result thereof it was ordered to be proceeded against exparte vide order dated 27.06.2016.
3.           OP No.2 in its reply took preliminary objections inter alia that this Forum does not have the territorial jurisdiction to entertain and try the present compliant; that the complaint filed by the complainant qua the agent/broker is not maintainable.  It has been pleaded that the claim of the complainant, if any, is pertaining to a FD Scheme, which acted as a bi-lateral contract, mutually agreed and executed between the complainant and OP No.1 and the answering OP as a broker and separate legal entity is neither a party nor have any privity but a stranger to the said contract.  It has further been pleaded that the complainant is not a consumer qua the answering OP and thus has no locus standi to file the present complaint qua it.  It has further been pleaded that the complainant invested the amount with OP No.1 and it is the obligation of OP No.1 to refund or not to refund the said amount with /without interest back to the complainant and the answering OP is not liable/responsible to perform the said task.  It has been pleaded that the answering OP as a broker always and every time acted under the instructions/direction and/or sweet will/request and upto the satisfaction of the complainant and not otherwise.  It has further been pleaded that the answering OP at the time of investment on 29.12.2012 issued an acknowledgment receipt to the complainant thereby informing and explaining its limited role and liability.  The remaining allegations have been denied.  Pleading that there is no deficiency in service on its part, a prayer of dismissal of the complaint has been filed.
4.           The complainant filed rejoinder to the written reply of the OP No.2 controverting its stand and reiterating his own.  In the rejoinder, it has been stated that he had been investing in mutual funds through OP since 2005-06 and had known Mr.Lalit Malhotra, Branch Manager since then. It has further been stated that the OP No.1 had been doing its business through OP No.2 in Chandigarh and both were making their profits through such FDs.  It has further been stated that since OP No.2 filled and accepted the application on behalf of OP No.1 at Chandigarh so cause of action has arisen to him at Chandigarh.
5.           We have heard the complainant in person and learned Counsel for OP No.2 and have gone through the documents on record.
6.           In view of the specific objection taken by the Counsel for OP No.2 in its written statement as well as the application for dismissal of the complaint, the first and foremost question to be decided in this case is as to whether this Forum has got jurisdiction to entertain and try the present complaint or not.  The Counsel for OP No.2 has contended that the complainant had invested the amount in the FD Scheme of OP No.1 and it is the obligation of OP No.1 to refund or not to refund the said amount with/without interest back to the complainant and OP No.2 is not liable/responsible to perform the said task.  It has been further been contended that that the OP No.2 acted as a broker/agent under the instructions and upto the satisfaction of the complainant and not otherwise. It has further been contended that the cheque issued was deposited in the account of OP No.1 at New Delhi, and the mere fact that the same was given to OP No.2, the territorial jurisdiction of this Forum could not be invoked. He categorically asserted that no cause of action arose to the complainant at Chandigarh, as the Fixed Deposit Receipt was issued from the registered office of OP No.1 at New Delhi; amount was credited to the account of OP No.1, at Delhi, and all the correspondence with OP No.1 was made at Delhi/Gurgaon. In support of his aforesaid submissions, he placed reliance upon the Puran Chand Wadhwa Vs. Hamil Era Textiles Ltd., IV (2003) CPJ 26 (NC); M/s Sakthi Automobiles Vs. Zarina Ahammed & Anr., III (1997) CPJ 474; Ranibai Agnihotri Physical Education College Vs. Sikandarkhan Dadamiya Tanwar & Anr., IV (2005) CPJ 259 and Sonic Surgical Vs. National Insurance Company Ltd., IV (2009) CPJ 40 (SC).
7.                In Puran Chand Wadhwa Vs. Hamil Era Textiles Ltd’s case (supra),  a case decided by a Four Member Bench of the National Commission held in Pars 7 to 9 as under:-

“7.        Before we go into the question of merits of the case, we would discuss the question of jurisdiction. It is now settled law that while the Consumer Forum has the trappings of a Civil Court but we are not Civil Courts. For ‘substantive’ purpose, Consumer Protection Act is a wholesome and in itself a complete enactment. Section 11 of this Act reads as follows :

“11. Jurisdiction of the District Forum—(1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed [does not exceed Rupees twenty lakhs].

(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

(c)      the cause of action, wholly or in part, arises.”

8.          While one may concede that Section 20 of C.P.C. and Section 11 of C.P.A., 1986 had a common reading - but this was before the amendment made in the Act in June, 1983. By an amendment to the C.P.A., 1986 in June, 1983, words “carries on business or has a branch office or” have been added. In our view legislative intent is clear. The amendment is part of the statute and has not been challenged. Consumer Forums cannot go beyond or behind the provisions of the Act. In our view, it is not in dispute that the respondent neither has any business nor any branch office in Chandigarh. The effort by the petitioner to bring in Punjab and Sind Bank as an Agent of the respondent with a view to fall within Section 11(2)(c), is too naive to be accepted and dealt in by us. Bank is only a facilitator to accept the money at the time of floating of debentures and encash cheques issued by the respondent. This is a limited service being rendered by them for all aspiring investors - by no stretch of imagination can they be called the Agents of the respondent. We see no action wholly or the part taking place in Chandigarh - Debentures were issued from Bombay. Two instalments as interest on Debentures were issued from Bombay payable at Chandigarh; Debentures were to be redeemed from Bombay, no action whatsoever could be said to be performed at Chandigarh. We have seen the judgment of the Hon’ble Supreme Court in the case of Morgan Stanley Mutual Fund v. SEBI & Ors. After going through it we do not find that the present case has anything common with the facts and results of that case as it dealt with situation/cases dealing with injunction. However relying upon the Halsbury’s Laws of England the Supreme Court goes on to state that, ‘As per as Indian is concerned, the residences of the Company is where the registered office is located’. Normally cases should be filed only where the registered office of the Company is situated. The point at issue was more specifically dealt in the context of Companies Act by Hon’ble Supreme Court in the case of H.P. Gupta v. Hira Lal, wherein it was held that the cause of action would arise at the place where registered office of the Company is situated. This view was confirmed/reiterated by the Hon’ble Supreme Court in the case of H.V. Jaya Ram v. ICICI & Ors.,1999 (7) Scale 481. National Commission in the case of GDA v. Smt. Sunita Garg (supra), had held that ‘the very fact that the amount of initial deposit for the flat (in Ghaziabad) was remitted through the Branch of Vijaya Bank at Chandigarh will not entitle the complainant to contend that any part of the cause of action had arisen in Chandigarh. (emphasis supplied). On the point of jurisdiction another point made by the petitioner is that Consumer Protection Act is a piece of beneficial legislation and the poor small investor could not be expected to run to several places in this case to Bombay for recovery of less than Rs. 2,000/-. It also could not be the case of the petitioner that the respondents and similarly placed companies could be facing litigation in thousands of Courts spread over the country. We have also the Hon’ble Supreme Court warning us of the pit falls when it observed in the case of Morgan Stanley Mutual Fund v. SEBI & Ors.

“There is an increasing tendency on the part of litigants to indulge in speculative and vexatious litigation and adventurism which the Fora seem reality to oblige. We think such a tendency should be curbed....”

9.       In our view this appears to be the case at the District Forum level. We wish to reiterate that it is admittedly a beneficial legislation, but Forum shall not go out of the boundaries of law provided under the Act to satisfy the desires of anyone. Hence we see no merits in the issue - Consumer Forum at Chandigarh clearly had no jurisdiction under the law to entertain the complaint. The order of the State Commission is as per settled law on the subject.”

8.           In Puran Chand Wadhwa Vs. Hamil Era Textiles Ltd’s case (supra), the Bank was only the facilitator to accept the money at the time of floating of debentures and encash cheques issued by the respondent, which was a limited service being rendered by it to all aspiring investors. The National Commission held that by no stretch of imagination could it (Bank) be called the Agent of the respondent. In Puran Chand Wadhwa Vs. Hamil Era Textiles Ltd.’s case (supra), the debentures were issued from Bombay; even the two instalments as interest on debentures were issued from Bombay payable at Chandigarh; debentures were to be redeemed from Bombay; and, as such, no action whatsoever could be said to have been performed at Chandigarh. Under these circumstances, the National Commission held that the District Forum at Chandigarh had no territorial jurisdiction to entertain and decide the complaint.
9.           In the instant case, OP No.2 i.e. Bajaj Capital Ltd. acted as a facilitator only by transmitting the application for fixed deposit and cheque to OP No.1 at Delhi and that too on the request of the complainant.  Even the FDR was issued from the Registered Office of OP No.1 at New Delhi; the entire correspondence was exchanged by the complainant with OP No.1.    Moreover, the complainant has failed to prove on record that OP No.1 is having its any Branch Office at Chandigarh or is working for gain at Chandigarh. Thus, no cause of action, whatsoever, could be said to have arisen to the complainant, within the territorial limits of Chandigarh. The grievance of the complainant is mainly against OP No.1 and not against OP No.2. It seems that the complainant impleaded OP No.2, in order to bring the dispute within the territorial jurisdiction of this Forum. Thus, the proposition of law    settled in Puran Chand Wadhwa Vs. Hamil Era Textiles Ltd’s case (supra), is fully applicable to the instant case. In our considered opinion, this Forum has no territorial jurisdiction to entertain and decide the instant complaint.  Here our view is further fortified by the judgment of our own Hon’ble State Commission passed C.C. No.178/2014 titled as Mrs.Renu Kapur Vs. Lalit Malhotra, Zonal Manager, Bajaj Capital and others, decided on 01.04.2015.
10.           For the reasons recorded above, the complaint is dismissed for want of territorial jurisdiction with no order as to costs. However, the complainant is at liberty to file the same before the appropriate Forum, having territorial Jurisdiction, to entertain and decide the same. He may take advantage of the ruling of the Hon’ble Supreme Court in Laxmi Engineering Works Vs. PSG Industrial Institute, (1995) 3 SCC 583, to seek exclusion of time spent before this Forum. 
11.           Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

01/12/2016

Sd/-

(RAJAN DEWAN)

PRESIDENT

Sd/-

(PRITI MALHOTRA)

MEMBER

Sd/-

 (RAVINDER SINGH)

MEMBER