Delhi

New Delhi

CC/362/2016

Ashok kumar - Complainant(s)

Versus

Kamal Kumar - Opp.Party(s)

15 Mar 2022

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION­­­-VI,

DISTT.NEW DELHI, M-BLOCK, VIKAS BHAWAN, NEW DELHI-110002.

 

CC No.TC.362/2016/ CC. NO.565/2010

IN THE MATTER OF:

 

ASHOK KUMAR

S/O SH. HARSAWRUP

R/O A-361-362, BUNKAR COLONY,

ASHOK VIHAR, NEW DELHI                                      … COMPLAINANT

VERSUS

1. KAMAL KUMAR

         S/O SHRI MANGAL SINGH

 

2.  AJAY KUMAR

         S/O SHRI MOHAN LAL,

           BOTH RESIDENT OF 6295, GALI GURDWARA WALI,

            NABI KARIM, NEW DELHI-110055                                                                    … OPPOSITE PARTY(IES)

 

CORAM : SH. POONAM CHAUDHRY, PRESIDENT

                  SH. BARIQ AHMAD, MEMBER

                  MS. ADARSH NAIN, MEMBER   

                                                                                                                          Date of Institution: 27.04.2010

                                                                                                                        Date of Order     : 15.03.2022

BARIQ AHMAD, MEMBER

ORDER

Hearing Through Video Conferencing.

1. The complainant has filed the present complaint against the OPs under the Consumer Protection Act, 1986.The facts as alleged in the complaint are that the complainant was desirous to reconstruct his old home. The complainant was approached by OP-1&2 and they introduced himself as government approved builders. Believing the assurance of OP`s the complainant interred into Iqrarnama/agreement with OP`s on 02.04.2007. As per the terms and conditions of agreement the complainant was supposed to pay a total amount of Rs.12,50,000/- to OP`s as per schedule mentioned in the agreement. The OP was supposed to construct the building as per by-laws and was supposed to use the materials mentioned in the agreement. The OP`s requested to the complainant to pay the amount in advance as they have some financial difficulties. The complainant relaying on the quotation of OPs paid the entire amount of Rs.12,50,000/- to OP`s in installments but the OP`s failed to perform his duties. The OP constructed the building with sub-standard materials and left it unfinished and failed to complete the construction even after receiving the full payment of Rs.12,50,000/- in advance. By way of present complaint, complainant seeks directions to OP`s to refund Rs.12,50,000/- along with  compensation on account of mental agony and harassment.
2. Notice was issued but none appeared on behalf of OP`s and OP`s were proceeded against ex-party vide order dated 07.06.2010. On the basis of  unrebutted testimony of the complainant, ex-party order was passed vide order dated 03.06.2010. The OP`s preferred an appeal No.402/2011 before Hon`ble State Commission, New Delhi, vide order dated 04.05.2016, the appeal was accepted, the impugned order was set-aside and matter was remanded  back to this Forum/Commission to decide the case on merits after taking WS of the OPs on record. Court notice was issued to complainant. OPs have  contesting the case and has filed joint written statement.
3. In the joint WS/reply, OPs submitted that the complaint is not maintainable, in view of the provisions of specific clause No.7 in the Iqrarnama/ agreement dated 02.04.2007, as the case barred under the provisions The Arbitration & Conciliation Act.  It is further stated that this Forum has no jurisdiction to entertain and adjudicate upon the disputes involved in the complaint. The present complaint is not covered as consumer dispute under Consumer Protection Act. The complaint may be dismissed on this ground alone. The case is exclusively triable by Model Specimen 63 a civil court/disputes and outside the perview of the CP Act.
4. It is not disputed that both the parties have entered into an Iqrarnama dated 02.04.2007 for construction of plot No.A-361-362, Bunkar Colony, Ashok Vihar, New Delhi, measuring about 80 sq. Yds. for raising construction i.e. ground floor, first floor and second floor consisting three rooms set on each floor fitted with separate electricity and water connection for each floor the complainant was to make  payment of Rs.12,50,000/- (in words Thirteen Lac Seventy Five Thousand Only as written), as per clause (5) and as per specification mentioned in the Iqrarnama dated 02.07.20007. The Ops further stated that during the finishing work the complainant requested the OPs to raise additional floor i.e. third floor and one room on the terrace and further provides same facilities as on the other floors with undertakes to make additional payment to OPs. However, the OPs raised construction of third floor and used the standard material upto the satisfaction of the complainant, under the supervision of the complainant but the complainant had not made additional payment of an amount of Rs.7,50,000/- for extra work. The OP demanded the dues and under the compelling circumstances left with no other alternative except to leave the remaining work on account of non-payment of dues by the complainant. OPs have prayed for dismissal of the complaint.
5. The complainant did not file rejoinder.
6. In order to prove his case the complainant filed his affidavit in evidence and an additional affidavit in evidence of Sh. Nand Kishore S/O Sh. Khushali. The complainant placed on record, copy of Iqrarnama/agreement dated 02.07.2007. On the other hand, OP No.2 Sh. Ajay Kumar filed his affidavit in evidence.
7. Learned Counsel for the parties have filed Written Arguments wherein they have reiterated the allegations made in complaint.
8. We have perused the material on record carefully.
9. This Commission has considered the case of the complainant in the light of evidence of both the parties and documents placed on record by the complainant and OPs. Complainant has not placed any documents on record to show that cause of action arose within the jurisdiction of this Commission.
10. On the point of Territorial Jurisdiction,  Section 11(2) of the CP Act,1986 (in short the Act) relates to the jurisdiction of District Commission. Section 11(2) of the CP Act which is relevant is as under:-

“(2) A complaint shall be instituted in a District Commission 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, ordinarily 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 the permission of the District Commission is given; or

(c) the cause of action, wholly or in part, arises; or (d) the complainant resides or personally works for gain.”

5.       In this regard it has been held by Hon’ble National Commission in Revision Petition No. 575/18, titled Prem Joshi Vs. Jurasik Park Inn decided on 01.03.2018, as under:-

“In terms of Section 11 of the Consumer Protection Act, a complaint can be instituted inter-alia in a District Forum within the local limits of whose jurisdiction the cause of action only or in part arises.  The case of the complainant is that the ticket for visiting the amusement park was purchased by him online in his office in Karol Bagh and it is the District Forum at Tis Hazari has territorial jurisdiction over the mattes in which cause of action arises in Karol Bagh.  The cause of action is bundle of facts which a person will have to prove in order to succeed in the Lis.  Therefore, in order to succeed in the consumer complaint, the complainant will necessarily have to prove the purchase of the ticket in entering amusement park situated at Sonepat.  Since the tickets was allegedly purchased at the office of the complainant situated in Karol Bagh, the District Forum having territorial jurisdiction over Karol Bagh area would have the requisite jurisdiction to entertain the consumer complaint”.

6.       We are thus of the view that this Commission does not has territorial jurisdiction to entertain and adjudicate the present complaint, as no cause of action arose within the jurisdiction of this Commission.

7.       The complaint is accordingly returned to the Complainant along with the documents for presenting it before the concerned District Commission in accordance with law. A copy of the complaint and document be placed on record for record purpose.

8.       The particulars of the complaint are as under:

1. Date of Presentation of complaint     :        27.04.2010
2. Date of transfer of complaint            :        02.06.2016
3. Date of return                                 :        15.03.2022
4. Name of the Complainant                 :        Sh. Ashok Kumar
5. Court fee paid                                 :        Rs.100/-

Copy of the order be given to the Complainant free of cost.

The order be uploaded on the website of this Commission.

File be consigned to record room.

Announced in open Commission on this 15^th  day  of March, 2022.

 

 

MS.POONAM CHAUDHRY

(PRESIDENT)

 

 

BARIQ AHMAD                                                                 MS. ADARSH NAIN    

MEMBER                                                                                  MEMBER