Delhi

StateCommission

CC/1377/2017

DHEERENDRA SHARMA & ANR. - Complainant(s)

Versus

GAURSONS & ANR. - Opp.Party(s)

ANUJ CHAUHAN

04 Sep 2017

ORDER

IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL, COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments :04.09.2017

Date of Decision :07.09.2017

Complaint No.1377/2017

IN THE MATTER OF:

 

1. Mr. Dheerendra Sharma,

S/o. Shri Ganesh Sharma,

Flat No.E-1303, Proview Laboni,

Crossing Republic, Ghaziabad,

Utter Pradesh-201016.                                                                  ……Complainant No.1

 

2. Mrs. Shefalika Sharma,

W/o. Mr. Dheerendra Sharma,

Both Resident of Flat No.E-1303,

Proview Laboni,

Crossing Republic, Ghaziabad,

Utter Pradesh-201016.                                                                  ……Complainant No.2

 

 

                                                                        Versus

1. M/s. Gaursons Realty Pvt. Ltd.,

Corporate Office at:

Gaur Biz Park, Plot No.1 & 2,

Abhaykhand II,

Indirapuram, Ghaziabad,

Uttar Pradesh.                                                                                ….Opposite Party No.1

 

2. HDFC Bank Ltd.,

The Capital Court,

Olof Palme Marg,

Outer Ring Road,

Munirka, New Delhi-110067.

 

Also at:

Ramon House, H.T. Parekh Marg,

169, Backbay Reclamation,

Churchgate, Mumbai-400020.                                                     ….Opposite Party No.2

 

 

 

HON’BLE SH. O.P.GUPTA, MEMBER(JUDICIAL)

HON’BLE SH. ANIL SRIVASTAVA, MEMBER

1.     Whether reporters of local newspaper be allowed to see the judgment?                    Yes/No

2.      To be referred to the reporter or not?                                                                     Yes/No

 

Present:        Shri Rohit Aggarwal, counsel for complainant.

                        None for the respondent.

 

PER  : SHRI ANIL SRIVASTAVA, MEMBER

 

          The point for consideration and adjudication in this complaint filed before this Commission by Shri Dheerender Sharma and Smt. Shefalika Sharma, husband and wife, resident of Ghaziabad, Utter Pradesh, for short complainant no.1 and 2 respectively, under Section 17 of the Consumer Protection Act, 1986 against M/s. Gaursons Realty Pvt. Ltd., having their corporate office at Ghaziabad, and HDFC, having their Head Office at Mumbai and Branch office at Munirka, New Delhi, hereinafter referred to as Opposite Party no.1 and 2, respectively, is whether the complainants are entitled to the refund claimed  and, if so, whether this Commission can issue a direction to the Opposite Parties who have their registered office at a  place other than Delhi.

          Facts of the case necessary for the disposal of the complaint are these.

          The complainants led by the advertisements and representatives of the Opposite Party no.1 had applied for purchasing a flat in their project, namely,  Gaur Saundaryam and as a consequence thereof they were allotted an apartment no.1126 on 111^th Floor, SHARON in the said project situated at GH-05, Sec-Techzone IV, Greater Noida, Uttar Pradesh on the cost price of Rs.80,22,670/-  plus Service Tax, which  allotment was made under subvention scheme which meant no EMI was to be charged from the complainants till the possession of the said project. It was stipulated in the allotment letter that the construction in the project would be complete by 30.04.2016, keeping three months as fit out period.

          The complainants thereafter paid an amount of Rs.8,27,057/-  to the OP-1 and also availed of the loan facility to the extent of Rs.65,00,000/- from OP no.2 on 21.03.2015 . Tripartite agreement among both  the opposite parties and the complainants, laying down the terms and conditions and the obligations they had to meet, was executed on 25.05.2015. It was agreed between the parties that

“Till the commencement of EMI, the borrower shall pay the EMI which is the simple interest on the loan amount disbursed calculated at the rate of interest as mentioned in the respective loan agreement of the borrower”

“Besides no EMI till possession of the said properly and that the pre-EMI interest, if any would be borne by the OP-1”

“That the first party will be responsible to pay the amount of  interest up to offer of possession only”.

          It may also be emphasized  that the agreement was executed at NOIDA. The Head Office of the OP is a Ghaziabad, Uttar Pradesh. The Head Office of the OP-2 is at Mumbai having its branch office at different places of the country including the one at Munirka, New Delhi. The complainants are also residing at Ghaziabad.

          The complainants thereafter tried to find out about the progress in the project but no intimation or reply was sent. Completion of project was not done by 30.04.2016, as agreed to but the OP-2  started deducting pre  interest to the tune of Rs.50,000/- from the account of the complainants. On the complainants confronting the OP-1 that  till the possession of the flat the  pre EMI payment is their responsibility, they refunded a part of what was deducted. This was found to be upsetting and disappointing by the complainants as, according to them, their act amounts to unfair trade practice. The complainants having regard to these facts sought for the cancellation of the agreement and refund of the amount.  No response was found to be forthcoming from the opposite party no.1. No solution could emerged during the course of the meeting between them. Infact the complainants were threatened by the OP-1 and their officials.

          Being pushed to the wall a complaint was filed by the complainants praying for the relief as under:

a)      Pass an order in favour of the complainants and against the OPs thereby directing the OP no.1 to immediately  cancel the allotment agreement dated 3^rd February, 2015 as ell as the builder agreement and the Tripartite Agreement.

b)      Pass an order in favour of the complainants and against the OPhereby directing the OP no.1 to refund the amount of Rs.8,27,057/- which was paid initially by the complainants and an amount of Rs.3,68,000/- which was paid by the complainants after 30^th of April, 2016 towards the interest.

c)      Pass an order in favour of the complainants and against the OPs thereby directing the OP no.2 to close the loan account no.614762342, and to recover the outstanding, if any against the said loan, from the OP no.1.

d)      Pass an order directing the OPs to pay a sum of Rs.1,00,000/- towards cost of litigation.

e)      Pass such other or further orders as this Hon’ble Commission may deem fit in the facts and circumstances of the present case.

          The complaint so filed was listed before us for admission hearing on 04.09.2017 when the ld counsel for the complainant advanced his arguments. We  have perused the records of the case.

          In the first instance, prima facie, we felt that the agreement having  been executed at NOIDA and the Head office of the opposite party being at Ghaziabad, this Commission lacks the territorial jurisdiction to hear and dispose of this complaint being barred  under the provisions of Section 17 (2) of the Consumer Protection Act, 1986. The said provision of law posits as under:-

Section 17(2)

(2) A complaint shall be instituted in a State Commission within the limits of whose jurisdiction,-

(a)     the opposite party or each of the OPs, 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 Ops 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 State Commission is given or the Ops who do not reside or carry on business or have a branch office or personally works for gain, as the case  may be, acquiesce in such institution; or

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

          On a plain reading of the aforesaid statute it would be clear that the cause of action in a matter decides and determines the territorial jurisdiction of the Commission. Secondly, the place where the opposite party resides also accounts for the decision regarding territorial jurisdiction.

          In the given case the Head Office of the OP-1 is at Ghaziabad. Agreement  having been executed in Uttar Pradesh, the fact which is in disputed, cause of action would be deemed to have arisen in Uttar Pradesh.

          The Hon’ble Supreme Court of India in the matter of Soni Surgical Vs. National Insurance Company – IV  (2009) CPJ 40 (SC) – has held

“The ld. Counsel for the appellant submitted that the Insurance Company has a branch office at Chandigarh and hence under the amended Section 17(2) the complainant could have been filed at Chandigarh. We regret we cannot agree with the ld. Counsel. In out opinion an interpretation has to be given to the amended Section 17(2)(b) of the Act, which does not lead to an absurd consequences. If the contention of the ld. Counsel is accepted, it will mean that even if a cause of action  has arisen  at Ambala, then too the complainant can file a claim/ petition even in Tamil Nadu/ Gujrat / or anywhere in India where branch office of the company is situated. We cannot agree with this contention. In our opinion therefore Branch office would mean office where the cause of action arose……

          The Hon’ble NCDRC in the matter of Srei Equipment  Finance Pvt. Ltd. Vs. S. Natrajan – III(2016) CPJ 389 (NC) – has held –

“Merely because OP has a branch at Salem, complainant does not get jurisdiction to file a complaint at Salem. Complaint can be filed only at Kolkatta where cause of action arose.”

          In yet another case the Hon’ble NCDRC in the matter of New India Assurance Co. Ltd. Vs. Lasa Footwear – IV (2012) CPJ 821 BC held:-

“Expression branch office in the amended Section 17(2)(b) would mean the branch office, where cause of action has arisen.”

          Having regard to the discussion above we reach to an inescapable conclusion that the place where the cause of action arose is the place where the complaint can be filed. In the given case the cause of action having arisen at Ghaziabad where the Head office of the OP-1 is situated or at NOIDA where the agreement was executed, this Commission, enjoying the jurisdiction only in the vicinity of Delhi, lacks the territorial jurisdiction to hear or to entertain the complaint. If that be the case we are handicapped hearing this case and accordingly order to return the complaint to file it before the appropriate Fora for the redressal of his grievances.

          We order accordingly.

The ld. Counsel for the complainant advanced his arguments that the OP-2, the Bank, being at Munirka, New Delhi, this Commission is augmented with the territorial jurisdiction. We cannot  accept this argument, keeping in view the orders passed by the Hon’ble NCDRC in CC 1722/16 passed on 04.11.2016 in the matter of Amardeep Bajpai & anr vs. M/s. Jaypee Infratech Limited & 2 ors. Holding as under:-

“Issue notice to OPs namely, M/s. Jayee Infratech Ltd. and M/s. Sai Prakash  Associates Ltd………” OP-3, ICICI Bank Ltd.  is neither a necessary for a proper party to the complaint. The name of OP no3. Is therefore, deleted from the array  of parties……”

          This takes us to a conclusion that the Bank in matters of the kind is neither a necessary nor a proper party and therefore no advantage can be derived by the fact that the branch of OP-2 is at New Delhi and therefore the jurisdiction cannot be invoked on this account also.

          We order accordingly, order be sent to the parties free of cost as statutorily required.

          File be consigned to records.

           

 

(ANIL SRIVASTAVA)                                                  (O.P.GUPTA)

MEMBER                                                                     MEMBER (JUDICIAL)