Order No.32                                                          

Dt. 11-01-2023

Both parties filed hazira through Advocate.

The maintainability issue being same raised by the O.P.s in their respective Written Versions  in all the four cases No. beings C.C.104/2015, C.C.105/2015, C.C.123/2015 and C.C.127/2015 (instant case) are taken up together for hearing.

Heard the Ld Advocate for the O.P.

None was present on behalf of the Complainant to oppose the maintainability issue.

It is a long pending case and the maintainability issue is to be disposed of right now.

The Complainants are different in all the four cases but O.P. is the same. So the maintainability issues are heard together and disposed of hear in by a common order which shall govern all the four cases.

The Complainants in all the four cases has prayed for similar reliefs against the O.P.s on the basis of similar agreement for their deficiency in service in enjoying the logistic support of the franchise to be offered by the O.P.s.

All the Complainants are the permanent resident of Bankura but the O.P.s carry on business within the jurisdiction of Calcutta.

Ld. Advocate appearing for the O.P. vehemently canvassed the maintainability issue mainly on two grounds. The first ground is that this Commission has no territorial jurisdiction to entertain the complaint as no part of cause of action arose within the jurisdiction of Bankura and under the old Consumer Protection Act, 1986 the local limits of jurisdiction of the Complainant does not confer any territorial jurisdiction which is however conferred under the new Consumer Protection Act, 2019.

Her further contention is that the franchise agreement arrived at by and between the parties confers jurisdiction of Calcutta for adjudication of all disputes. 

                                                                                                                                                                                   Contd……..p/2

Page: 2

The jurisdiction point has been set at rest by the Supreme Court in the decision dated: 16-03-2021 in the case between Neena Aneja & Another Vs.Jaiprakash Associates Ltd., in C.A. No.3766-67/20 by holding after analyzing various relevant decisions that the new Consumer Protection Act, 2019 will not affect the pending Consumer cases instituted under the old Consumer Protection Act, 1986 so far as  the jurisdiction is concerned.

Conferment of jurisdiction by way of agreement is not favourably approved by our Court of law on the premises that the parties cannot themselves decide the jurisdiction for adjudication of the dispute. Ld. Advocate appearing for the O.P. has referred to a decision reported in 2004 (5-6) S.B.R. 609 wherein it has been held with reference to the provision of the Civil Procedure Code that the choice of parties regarding conferment of jurisdiction in the agreement is to be honoured. But sorry to say that this decision is not applicable to the Consumer cases as the application of Civil Procedure code has been excluded save and except some limited provisions provided in Consumer Protection Act.

Her next point of contention is that none of the complainants in all the four cases are Consumers within the definition of Consumer in the relevant Consumer Protection Act as the status of Complainants are franchisee to be enjoyed for Commercial purposes even by granting Sub-franchise according to the terms and conditions of the agreement. It is no doubt true that the Consumer who avails of the service for commercial purposes is excluded from the purview of the Consumer Protection Act but the connotation of commercial purpose has been explained to the Proviso of the definition of Consumer Protection Act whereby services availed by the consumer exclusively for the purpose of earning livelihood by means of self employment comes within the purview of Consumer Protection Act.

Ld. Advocate for the O.P. has referred to the material averments in the written version wherein it has been stated that the complainants have other source of income from other businesses and she has also referred to the relevant terms and conditions of the franchise agreement wherein option has been given to the complainant to exercise the right of granting Sub-franchise but there is no material on the record either through the pleadings or through the documents to lend support to the said contention.

                                                                                                                                                                                        Contd…….p/3

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Ld. Advocate for the O.P. has further referred to two decisions of NCDRC of which one is unreported dated: 05-11-2001 between Short Spec Software Pvt. Ltd. Vs. Digital Equipment India Ltd. and another decision is reported in [1994 CPJ 14 (NC)] to show that the complainants are not Consumers but those two cases are in different fields and as such they are not applicable to the present case.

Thus considering the entire facts and circumstances of the case and the submission and contention and available materials on record the Commission is of the view that there is no legal bar to entertain all such cases which are of similar nature for consumer relief.

Accordingly the petition of maintainability issue is rejected fixing 11-04-2023 for argument.

M.A. No. being 34/18 is accordingly disposed.