Advocate Aundhekar S.V. for the complainant
Advocate Ghone for the Opponents
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Per Hon’ble Shri. V. P. Utpat, President
Order on the point of Jurisdiction
Date- 28th March 2014
This complaint is filed by consumer against the service provider and machinery supplier for deficiency in service and defect in goods u/s 12 of the Consumer Protection Act, 1986. Brief facts are as follows-
[1] Complainant is doing the business of printing at Maharshi Nagar, Pune. Opponents are doing their business at Delhi. Complainant has placed order of printing machinery with the Opponents. The total price of the machine was Rs.15,90,000/-. Complainant paid booking amount of Rs.51,000/- to the Opponents in cash. The Opponents have issued quotation on 8/3/2006 in the name of complainant as regards Multijet Six Colour Digital Printer Model No.3212(S). Complainant has made loan proposal to the Pune Peoples Co-Op. Bank Ltd., Shanipar Branch, Pune. Relying on the said quotation Bank has disbursed amount of Rs.16,00,000/- to the complainant. It is the case of the complainant that the machine which was supplied by the Opponents was not as per the order. Hence, he could not start his business. He had lost his reputation. It is the case of the complainant that non supply of the machine with proper description, amounts to unfair trade practice as well as deficiency in service. Hence, he has filed present complaint and claimed Rs.15,90,000/- alongwith interest @ 24% p.a. from the Opponents.
[2] The Opponents have resisted the claim by filing written version and they have denied the contents of the complaint in toto. It is the case of the Opponents that the complainant is doing the commertial business hence Consumer Forum has no jurisdiction to entertain the present complaint. The Opponents are doing their business at Delhi and as per the agreement between the parties the Courts of Delhi alone have jurisdiction to entertain the dispute. It is flatly denied by the Opponents that the machine which was supplied to the complainant was not as per the order placed by him. According to them there is no deficiency in service or defects in goods. Opponents have prayed for dismissal of the complaint.
[3] After considering the pleading of both parties and scrutinizing the documentary evidence as well as hearing the argument of both counsel following points arise for the determination of the 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 can give finding on merit in the present complaint ? | In the negative |
3 | What order ? | Complaint is returned to the complainant for presenting the same in proper Forum. |
Reasons-
As to the Point Nos. 1 to 3-
[4] The learned Advocate for the Opponents argued before this Forum that this Forum has no jurisdiction to entertain the present complaint on two grounds. Firstly the transaction between the parties is of printing machine for his business. He is not earning his livelihood but he is earning huge profit by doing the said business. The relations between the parties are not consumer or trader and service provider but his relations are seller and purchaser. Hence complainant has to file civil suit and complaint under the Consumer Protection Act, 1986 is not maintainable. In that regard it has been pointed out that, complainant is doing business of printing for earning his livelihood and he has no any other business. Eventhough the complainant is doing commercial business of printing, it cannot be said that he is earning huge profit and at this juncture the Opponents have not produced any documentary evidence to establish that the complainant is doing the commercial activities. Moreover complainant has filed this complaint in his individual name. He is not running any company or firm. In this circumstances, this Forum is of the opinion that the transaction between the parties is not commercial transaction but it is a consumer transaction.
[5] The learned Advocate for the Opponents argued that, this Forum has no territorial jurisdiction to entertain the complaint as parties have agreed in writing that if there is any dispute then the Courts at Delhi have jurisdiction alone. The learned Advocate for the Opponents drew my attention to the agreement dated 8/3/2006 between the parties. It reveals from the same that this agreement is bearing signature of both parties and as per clause No.22 of the said agreement, if there are differences and disputes if any, shall be subject to the territorial jurisdiction of Delhi court without any reservation.
[6] The complainant has placed reliance upon the ruling of the Hon’ble Supreme Court of India between Sonic Surgical v/s National Insurance Co. Ltd. reported in 2009 DGLS (Soft.) 1192. As per the facts of the said ruling the complainant had filed complaint before the Consumer Commission of the Union Territory, Chandigarh and as no part of cause of action arose at Chandigarh, the complaint was dismissed. In that proceeding the insurance policy was purchased at Ambala. In that circumstances it has been observed that as the cause of action arose at Ambala, State Consumer Disputes Redressal Commission, Haryana alone has the jurisdiction to entertain the complaint.
[7] If the facts of the present case are considered, it reveals that the complainant has placed order from Pune to the Opponents who are doing business at Delhi. There is an agreement in writing between both the parties in which both have agreed that, if there is any difference or dispute then that should be resolved b the Court which is situated at Delhi. In this circumstances, this Forum is of the opinion that, the complainant has waived the jurisdiction of Pune and admitted the jurisdiction of Delhi. Now he cannot take somersault and claim that the Pune District Consumer Disputes Redressal Forum has jurisdiction to entertain the complaint.
[8] In Civil Appeal No. 2682 of 1982 between ABC Laminart Pvt. Ltd vs. A.P.Agencies, Salem, decided on 13/3/1989, Hon’ble Supreme Court of India has observed 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.”
[9] 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. ”
[10] In the present proceeding the head of the Opponent is situated at Delhi 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.
[11] 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 deficiency in service cannot be decided on merit. 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.
Place – Pune
Date – 28/03/2014
