Record is taken up for passing order in respect of petition filed by the Opposite party  on 7.2.2019  & complainant filed the written objection 9.4.2019 against the petition of the opposite party which was filed on 7.2.2019 and both the petitions heard on 9.4.2019.  In this petition the opposite party stated that the complainant has wrongly arrayed the opposite party as ‘Proprietor of G.K. Sports’.  G.K. Sports is a registered partnership firm.  The present complaint is therefore not maintainable against Proprietor of G.K. Sports.  This Ld. Forum has no territorial jurisdiction to decide the present dispute. The invoice issued by the G.K. Sports (Partnership Firm) specifically provide that all the disputes arising from sale of goods sold by the GK Sports from its shop at 30, Jawaharlal Nehru Rd., Kolkata, West Bengal-700 016 are ‘subject to Kolkata Jurisdiction’.  The G.K. Sports issued a warranty card to the complainant in which at serial No.26 provides that all claims shall be instituted only before the Courts having jurisdiction in Kolkata.  The said terms of the invoice as also the warranty card have been duly accepted by the complainant.  The opposite party further states that the present complaint is barred by law of limitation.  The cause of action for the filing of the present complaint as per the allegation of the complainant arose in the year 2014 upon the opposite party to repair the MCB and to replace the lost MCB.  However, the present complaint has been filed in the year 2018 after nearly four years and the same deserves to be dismissed for this reason alone.  Hence, the opposite party prayed before this Forum to dismiss the complaint petition.

The complainant filed written objection on 9.4.2019 against the petition filed by the opposite party on 7.2.2019.  In this objection the complainant stated that the opposite party filed this petition only for complicity of this proceeding and to give mental agony to this complainant.  This complainant further stated that at present it is not the prime determination that the G.K. Sports is a proprietorship business or it is a partnership firm.  All the documents which had been served by the opposite party to the complainant signed by the manager or the authorized person in their documents and no where it is found that in the cash invoice, warranty card issued by any of the partner of the G.K. Sports nor the documents there any seal which revealed that the G.K. Sports is a partnership firm.   The liability over the G.K. Sports in respect of the dispute in question should not denied.  The complainant further stated that in respect of territorial jurisdiction the present complainant submits that the service man of G.K. Sports  took the MCB of the Crazy Massager on 29.5.2014 from the house of the complainant situated at Tarakeswar Pally, P.S.- Bhadreswar, Dist.-Hooghly, which is well in the jurisdiction of this Ld. Forum and the status clearly speaks that ‘in respect of the jurisdiction of the District Forum that the opposite party at the time of the institution of the complaint, actually or voluntarily resides or personally works for gain’, so it is quite clear that the opposite party just to harass the complainant to file such petition.  That in respect of the limitation states that the dispute regarding the machine arose in the year 2014 with the opposite party which is still continue.  Prior filing of this case conversation was going on between the parties time to time over telephone and through mail and opposite party always given reply or communicated to the complainant.  Be it mentioned here that on various date like 9.7.2014, 10.3.2016……………………………….19.2.2018 and lastly on 5.3.2018 the complainant made phone call or sent the emails to the opposite party, so the cause of action in respect of the suit after arose in the year 2014 is still continued.

On perusal the instant petition and original case record of the complainant it transpires that complainant is a senior citizen. The complainant after retirement to lead his life in luxury brought a ‘Crazy Massager’ on 19.9.2009 by the opposite party, G.K. Sports.  Suddenly on May, 2014 the crazy massager stopped its functioning for which the complainant informed the matter to the opposite party on 14.5.2014. The opposite party sent their representative/service man on 29.5.2014 before the complainant.  The representative of the opposite party opined that crazy massager was damaged.  That after a considerable period the complainant made call  to the opposite party and asked for repairing of MCB and also the crazy massager. As per the discussion with the G.K. Sports service representative, it was leant that the MCB has been lost at their end and which could not be acquired from any means but it will take time.  The complainant made call to the opposite party on 9.7.2014,10.3.2016, 27.4.2016 and 15.6.2016  but there was no result comes out.  The complainant also mailed to the opposite party several times.  The complainant visited the shop of the opposite party on 31.7.2017 and discussed the matter with the proprietor but no solution was made.  The complainant never received the MCB in question and the opposite party never repair the Crazy Massager’ of the complainant for which the complainant suffered from a tremendous mental agony and also deprived for such.  Finding no other alternative the complainant knocked the door of this Forum.

To support his case the complainant has filed photocopies of receipt, acknowledgement, warranty registration card, phone call statement, printed email copy, photocopy of letter sent by the opposite party to the complainant.

Upon a careful consideration & from the above discussion this Forum is in the opinion that opposite party’s shop situated at 30, Jawaharlal Nehru Road, Kolkata, Pin-700 016 wherefrom the complainant purchased the Crazy Massager., which is beyond jurisdiction of this Forum.   No cause of action took place within the territorial jurisdiction of this Forum. The address of the opposite party does not fall within the Section-11(2) of the Consumer Protection Act, 1986.  So, this case is not maintainable in this Forum due to lack of jurisdiction.  Hence, it is

Ordered

that petition dated 7.2.2019 filed by the opposite party on the point of non-maintainability of complaint petition, is allowed.  So, C.C. No.126/2018 be and the same is dismissed due to non- maintainability.

Let the copy of this order be supplied to the parties free of cost.