Haryana

Ambala

CC/15/134

Ashwani Kumar Gupta - Complainant(s)

Versus

Era Landmarks LTd. - Opp.Party(s)

R.P.Vig

07 Jun 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

 

              Complaint Case No.    : 134 of 2015

Date of Institution       : 19.05.2015

           Date of Decision         : 07.06.2017

 

 

            Ashwani Kumar Gupta S/o Lt. Sh. Sardari Lal, resident of H.NO.8/1120,      Kartar Nagar, Model Town, Ambala City.                                                                                                

……Complainant.

 

Versus

1. M/s ADEL Landmarks ltd. (formerly Known as ‘Era Landmarks ltd.) Head Office B-24, Sector-3, Noida, 201301 through its authorized signatory.
2. M/s ADEL Landmarks ltd. (formerly known as ‘Era Landmarks Ltd.) the registered office located at B-39, friends colony (west), new Delhi through its authorized signatory.

                                                                                    ……Opposite Parties.

 

 

Complaint Under Section 12 of the Consumer Protection Act

 

 

BEFORE:       SH. D.N. ARORA,  PRESIDENT.

                        SH. PUSHPENDER KUMAR, MEMBER.

                        MS. ANAMIKA GUPTA, MEMBER

                       

Present:          Sh. R.P. Vig, counsel for complainant.

                        Sh. Anil Kumar Kaushik, counsel for OPs.

 

ORDER.

 

                        In nutshell, brief facts of the complaint are that the complainant applied for advance registration of 2 BHK + study measuring 1290 Sq.ft. residential apartment, Sector-86, Gurgaon and deposited amount of Rs.3,50,000 vide cheque No.910768 dated 15.07.2011, Rs. 3,26,863/- vide cheque No.910769 dated 02.09.2011 and Rs.1,95,360 vide cheque No.538326 dated 25.10.2012 to the OPs. Further submitted that from 25.10.2012 to 16.09.2014 although many contacts were made on phone but no response was received by the complainant for all times to come for the reason best know to the Ops. On 16.09.2014, the complainant was taken by surprise, when the OPs addressed letter dated 16.09.2014, and the operative part of which is high-lightened “we would like to inform you that we will not be holding this investment forward and would be returning the amount received from you along with due interest”. But the Ops failed to adhere the terms and conditions of advance registration. Hence the present complaint.

2.                     Upon notice, OPs appeared but did not file any written reply and the defence of the Ops was struck off v.o.d. 11.04.2016.

3.                     To prove his version, counsel for complainant tendered affidavit of complainant as Annexure C-X alongwith documents as Annexures C-1 to C-13 and closed the evidence.

4.                     We have heard learned counsel for the parties and gone through the case file very carefully. At the very outset, the first and foremost question arises before us for consideration is “Whether this Forum has jurisdiction to entertain the complainant or not?.

                        Counsel for OP has vehemently argued that this Forum lacks jurisdiction to entertain and hear the present complaint.  Counsel for OPs argued that the complainant applied for advance registration of 2 BHK + study measuring 1290 Sq.ft. residential apartment, Sector-86, Gurgaon and deposited amount of Rs.6,76,863/- to the OPs as party in the present complaint only to circumvent the jurisdiction of this Forum.  Counsel for OP has further argued that there is no cause of action arises at Ambala.  So, this Forum has no jurisdiction to try and entertain the present complaint. In support of his case, counsel for Ops has placed reliance on a judgment delivered by Hon’ble Apex Court in case titled as Sonic Surgical Vs. National Insurance Company Ltd. The counsel also emphasized on Section 11(2) (a)(b) (c) of Consumer Protection Act.   The observation made by the Hon’ble Supreme Court in Sonic Surgical Vs. National Insurance Company case (supra) is as under:-

“Incidence of fire in the appellant’s godown at Ambala-complaint claiming compensation from the respondent allowed by the State Commission, Union Territory, Chandigarh-National Commission set aside the said order accepting the  appeal of the respondent on the ground that the State Commission, Union Territory had no jurisdiction to entertain and adjudicate the complaint-Hence, the present appeal-Admittedly no cause of action arose at Chandigarh-Insurance Policy taken at Ambala, Fire broke out in the godown at Ambala and the claim for compensation also made at Ambala-Cause of action arose in1999 and the complaint regarding the same filed in 2000- Amendement to Section 17(2) not to apply as the amended Section came into force with effect from 15.03.2003- Contention that the respondent-insurance company having a branch office at Chandigarh, the complaint could have been filed in Chandigarh under the amended Section 17(2) rejected as unacceptable-It would have led to absurd consequences of bench hunting, meaning thereby that even if a cause of action has arisen in Ambala, then too the complainant can file a complaint in Tamil Nadu or Guwahati or anywhere in India- cause of action having arisen at Ambala, the State Commission, Haryana alone to have jurisdiction to entertain the complaint-impugned  order of the National Commission agreed with-Appeal dismissed.

                        On the other hand, counsel for complainant has argued that the complainant is residing of District Ambala as such, this Hon’ble Forum has very much jurisdiction to entertain & try the present complaint and sent the total amount of Rs.6,76,863/- through different cheques and same has been received by the OPs in Gurgaon. In support of their contention, counsel for complainant has placed reliance on case laws delivered by Hon’ble Haryana State Consumer Disputes Redressasl Commission, Chandigarh tilted Kurukshetra University & Ors. Vs. Vinay Parkash Verma reported in II(1993) CPJ-647 Pg. 647 wherein held that : “The objection to territorial jurisdiction is a threshold  question which if not seriously pressed is deemed to be waived. It bears repetition and the record is witness thereto, that though fully represented by counsel, the appellant-university did not press the territorial jurisdiction at the threshold before entering into the merits of the lis. Apart from taking the plea in its pleadings, the university-appellants did not seek the determination of the question from the District Forum at the very portals  of the consumer jurisdiction as a preliminary one. As the order under appeal indicates the question seems to have been  raised only at the stage of concluding arguments and it has been so noticed expressly in para 9 thereof. It appears to us that they willingly participated in the trial of the summary consumer lis and it would be  inappropriate that the  order under appeal should be set aside on this ground after it has turned against the appellants on merits” and has placed reliance on case laws delivered by Hon’ble Supreme Court of India, Delhi in case title Laxman Prasad Vs. Progigy Electronics Ltd. & anr. 2008(1) CCC 512 (S.C.).

5.                     After hearing learned counsel for the parties and going through the record, it is established that the complainant applied for advance registration residential apartment at Sector-86, Gurgaon and deposited requisite amount to the Ops as per Annexure C-1. Mere, residing of the complainant at Ambala does not create any jurisdiction and amount has been sent to the OPs from Ambala through different cheques of his banker and same has been received by the OP in Gurgoan. Perusal of the file shows that there is no office of OP situated at Ambala for doing business or for gain any profit. Even then, there is no agent or representative of OPs has been received the amount of the complainant at Ambala. So, there is no cause of action arises within the territorial jurisdiction of Forum at Ambala.

                               We have gone through the judgment delivered by Hon’ble Supreme Court in case titled Sonic Surgical (supra) and same is fully covered the present case. So, we are of considered view that this Forum have no territorial jurisdiction to adjudicate the present complaint, thus we have no option except to dismiss the same. Accordingly, the complaint is dismissed with no order as to costs. However, complainant is at liberty to file his complaint before the competent court of law having jurisdiction if so advised provided the complainant may approach to the Court of competent jurisdiction within 60 days from the date of receipt of copy of the order.  The period during which the present complaint remained pending before this Forum is exempted for the purpose of limitation in terms of the judgment of Hon’ble Supreme Court of India in case titled as Luxmi Engineering Works Vs. PSG Industrial Institute reported in 1995(3) SCC Pg.583. The complainant can obtain all the original documents, if any, relied upon in this case and Assistant is also directed to handover the same, if any attached with the complaint after retaining photocopy of the same on the file. Copies of the order be supplied to the parties concerned, as per rules. File be consigned to record room after due compliance.

ANNOUNCED ON:  07.06.2017                                              (D.N. ARORA)

                                 PRESIDENT                

 

 

(PUSHPENDER KUMAR)

                                                                                                            MEMBER

 

                                                           

         (ANAMIKA GUPTA)

                                                                                                            MEMBER