Complainant present in person
Opponent through lrd. Adv. Maniyar
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Per Hon’ble Shri. V. P. Utpat, President
:- JUDGMENT :-
Date – 31st December 2013
This complaint is filed by consumers against Country Club for deficiency in service u/s 12 of the Consumer Protection Act, 1986. Brief facts are as follows-
[1] Complainants are husband and wife. They have filled a card in Big Bazaar, Fatima Nagar, Pune. After some days they have received call from Jyotika, i.e. representative of the opponent and informed that they had won lucky draw and called them to collect their gifts from Pulse Mall, Pune. They reached Pulse Mall on 22/5/2013 and they were informed about the facilities of Country Club. They were pressurized to become member on the same day. They had signed the documents and paid an amount of Rs. 70,000/- by credit card and Rs. 70,000/- by cheque. On 23/5/2013 they have informed that they do not want to become member and asked for the refund of the money. They have visited the office of the Country Club at Koregaon and filed application for refund of money. They have also asked to put on hold the cheque. They have shocked on 29/5/2013, as the cheque was encashed. They have also made enquiry in Hyderabad office and Ahmedabad office of the opponent. But they did not get any response. On 3/6/2013, one e-mail was received and it was informed that the
fee is non refundable. Then they have filed this complaint for refund
of the deposit and claimed compensation for harassment to the tune of Rs. 10,000/-, as the opponents have caused deficiency in service,
[2] The opponent resisted the claim by filing written version. They have denied the contents of the complaint in toto. It is specifically denied that they have caused deficiency n service. It is further contended that the complainants have agreed in the agreement that if there is any dispute arise between the parties, the courts at Hyderabad and Secunderabad will have jurisdiction. Hence, this Forum has no jurisdiction to entertain the present complaint. It is also contended that as per contents of the agreement, the amount which was paid by the complainant was non refundable. The complainants were aware about the terms and conditions of the agreement. Hence, they are not entitled for the refund of the membership fee. The opponent has prayed for the dismissal of the complaint.
[3] Considering the pleadings of both parties, scrutinizing the documents, written argument and legal position, following points arise for my determination. The points, findings and reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1 | Whether this Forum has jurisdiction to entertain the complaint filed by the complainant? | In the negative |
2 | Whether Opponent has caused deficiency in service? | Does not survive |
3 | What order? | Complaint is returned to the complainants for presenting the same before proper Forum. |
REASONS AS TO THE POINT NOS. 1 TO 3 :
[4] The undisputed facts in the present proceeding are that the complainants had entered into an agreement with the Opponent by paying Rs.1,40,000/-. The Opponent has not produced any documentary evidence to show that the membership card was issued in the name of complainants and complainants have availed any of the amenities and facilities which had been referred in the alleged agreement. The complainants argued before me that the transaction took place within the jurisdiction of the present Forum, the agreement was executed within the jurisdiction of this Forum, the Opponent is having branch within the jurisdiction of this Forum, hence, this Forum has the jurisdiction to entertain the present complaint. Per
contra, the learned Advocate for the Opponent argued before me that if the agreement which is executed by the complainants in favour of the Opponent is carefully perused, it would reveal that the complainants had agreed to waive the jurisdiction other than Hyderabad and Secundarabad. He drew my attention to clause No.11 of the said agreement which is as follows-
“ It is agreed between the Parties herein that in the event of any disputes, claims or differences arising under the present Purchase Agreement, the same shall be referred to ARBITRATION under the provisions of Arbitration and Conciliation act of 1996 and amendments thereof, by Arbitrator to be appointed by the COMPLNY/I PARTY herein and the AWARD passed by the Arbitrator shall be final and binding on all parties herein and that the courts in Hyderabad and Secunderabad alone shall have jurisdiction. “
It reveals from the above said clause that courts in Hyderabad and Secunderabad shall alone have jurisdiction. In order to support the contention of the said clause the learned Advocate for the Opponent strongly relied upon the ruling of Hon’ble Supreme Court of India between “ABC Laminart Pvt. Ltd vs. A.P.Agencies, Salem” in Civil
Appeal No. 2682 of 1982 decided on 13/3/1989. In the said ruling it has been observed by the Apex Court 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.”
[5] 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.”
[6] In the present proceeding the head office of the Opponent is situated at Hyderabad and as per section 11 of the Consumer Protection Act, 1986, the places of head office as well as branch of the Opponent, are the proper jurisdiction.
[7] In the present proceeding the complainants have waived and excluded their right to initiate the proceeding at branch office and in view of the above noted ruling, that agreement is not against the public policy. After considering the ratio laid down in the above quoted ruling, I 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.
[8] The complainants argued before me that the Opponent has not issued membership card and that would amount to deficiency in service. Hence, the amount paid for membership and compensation shall be awarded in favour of complainants. Once it is observed that this Forum has no jurisdiction to entertain the present complaint, then the other issues cannot be decided by this Forum. Hence, I held that the issue as regards deficiency in service is treated as does not survive. I answer the points accordingly and pass the following order-
:- ORDER :-
1. Complaint is hereby returned to the complainants 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. Copies of this order be supplied to both the parties
free of cost.
Place – Pune
Date – 31/12/2013
