PER SHRI. S.M. RATNAKAR – HON’BLE PRESIDENT
1) The facts giving rise to the present complaint in short are as under -
The Complainant is carrying on its business as a manufacturer, wholesale suppliers, distributor and exporters of house ware products across the global. It flagship brands Milton, Treo, Claro and Hamilton Food service are quality products. The complaint is filed by Suresh K. Mehta – Legal Executive who is well aware of the transaction taken place between the Complainant and the Opposite Parties. He is also authorized to represent the present complaint.
2) It is alleged that the Opposite Party No.1 as a builder is in construction activities of shopping malls carrying on business at the address give in the title of Opposite Party No.1. The Opposite Party No.2 to 6, are the Directors of Opposite Party No.1 and they are responsible for day-to-day activities of the business of Opposite Party No.1.
3) According to the Complainant, the Opposite Party approached with the proposal of developing shopping malls known as ‘Himalaya Mall’ at final Plot No.186, located at Drive-in-Road, Memnagar, Ahmedabad. In view of the representation of the Opposite Parties, the Complainant expressed desire to take on lease Unit No.403, Himalaya Mall, area 1010 Sq.ft. approx. chargeable and 673 Sq.Ft., carpet area, on 2nd floor for operating ‘I-Homes’ chain of Milton/Treo store (referred to as the said premises). For that the Opposite Parties persuaded the Complainant to give security deposit of Rs.2,70,000/- and entered into letter of intend dtd.22/11/2006. The Complainant accordingly handed over a cheque No.0116501, dtd.13/11/06 for Rs.2,70,000/- drawn on UTI Bank Ltd, Rajashree Bldg., 1st Floor, Station Road, Mira Road (E), Dist.–Thane which is marked as Exh.‘A’. Letter of intend dtd.22/11/06 is marked as Exh.‘B’.
4) It is alleged that as the said premises could not be completed in time and kept the Complainant waited for near around five months since Dec., 2006 till April, 2007 and also due to unavoidable circumstances. The Complainant had to drop the proposal of taking on lease the said premises. The Complainant therefore, by letter dtd.20/06/07 and 19/10/07 requested to the Opposite Parties to cancel the booking of the said premises and to refund the security deposit of Rs.2,70,000/-. The Complainant made correspondence through various e-mail in that regard to the Opposite Party. The Opposite Parties however, instead of refunding the security deposit of Rs.2,70,000/- to the Complainant by its reply dtd.27/11/07 threatened to foreifit the amount of security deposit. The said letter is marked at Exh.‘C1’. The another letter dtd.20/06/2007 is marked as Exh. ‘C2’. The letter issued by the Complainant to the Opposite Parties dtd.19/10/07 and reply of Opposite Party dtd.27/11/07 is at Exh.‘D’.
5) The Complainant has alleged that as per the letter of intend dtd.22/11/06, the Opposite Parties are not entitled to deduct any amount from the security deposit of Rs.2,70,000/-. The Complainant through Advocate issued notice dtd.12/03/2009 to the Opposite Parties and claimed security deposit of Rs.2,70,000/-alongwith interest @ 18% for negligence on the part of the Opposite Parties to refund the same till the date of actual realization. The said notice was returned as ‘Not claimed’ which is marked at Exh.‘E’. The advocate notice dtd.12/03/2009 is Exh.‘F1’. The other postal correspondence in that regard is marked at Exh.‘F2’.
6) It is alleged that the Opposite Parties are liable for deficiency in service of willful negligence and unfair trade practice by not refunding the security deposit of Rs.2,70,000/- to the Complainant. It is submitted that the Complainant being a consumer within the meaning and definition of consumer and the Opposite Parties are dealing in construction activities of commercial complex have threatened to forfeit the amount of security deposit is highly unprofessional and unfair trade practice followed by the Opposite Parties. The Opposite Parties have wrongfully withheld the security. The Complainant therefore, had to incur huge expenditure in unwanted litigation. Hence, it is submitted that the Opposite Parties needs to be dealt appropriately for following unfair trade practice.
7) It is submitted that the cause of action has arisen on or about 27/11/2007 when the Opposite Parties by their reply threatened to forfeit the amount of security deposit of Rs.2,70,000/-. It is submitted that the Complainant handed over the cheque of Rs.2,70,000/- to the Opposite Parties and it received reply dtd.27/11/07 at Mumbai address of the Complainant and all major part of transaction had taken place within the jurisdiction of this Forum therefore, this Forum has jurisdiction to try and dispose of the present complaint.
8) The Complainant initially claimed for direction to refund security deposit of Rs.2,70,000/- against the Opposite Parties and interest @ 18% from 27/11/07 till its realization. However, by the amendment application dtd.06/05/2011, it is alleged that the Complainant had preferred Civil Suit of 1608/2009 before the Hon’ble High Court and the same is pending. The Complainant by Civil Suit claimed refund of security deposit of Rs.2,70,000/- and also interest thereon. The Complainant therefore, prayed to delete the prayer clause 18(a) and 18(b) from the complaint and only claim Rs.7,000/- as compensation towards the mental harassment, hardship caused to the Complainant and towards legal expenses. The said amendment application was allowed vide order dtd.23/06/2011 and now the claim is restricted for consideration of grant of Rs.7,000/- in favour of the Complainant as referred above.
9) The Opposite Parties contested the claim by their written statement and contended that the Complainant has filed false, frivolous and vexatious complaint against the Opposite Parties which is not maintainable in law. It is contended that this Forum has no jurisdiction to try and entertain this complaint as the property in question is situated at Ahmedabad, understanding of commercial terms dtd.22/11/06 as per Exh.‘A’ were singed at Ahmedabad, the cheque was given at Ahmedabad. It is thus, submitted that the present complaint therefore, may be dismissed on the point of jurisdiction. It is also contended that the Complainant has filed Summery Suit No.1608/2009 before the High Court at Bombay against the Opposite Parties on the same cause of action on 19/06/2009 i.e. after filing of the preset complaint on that count also the preset complaint is liable to be dismissed.
10) According to the Opposite Parties the present subject matter of the complaint is not covered under the provisions of Consumer Dispute Act, because the transaction was related to the lease of immovable properties and it is a matter of implementation of agreement related to the lease of immovable property wherein the Complainant is a lessee of the immovable property. It is contended that there is direct judgement of the Hon’ble Supreme Court on this point reported in AIR 2009 Supreme Court 1607 in between UT Chandigarh Administration V/s. Amarjeet Singh and Ors., wherein it is held that lessee is not consumer and owner is not builder or service provider. It is thus, submitted that this Forum has no jurisdiction to entertain and decide any complaint by purchaser/less against the owner. The complaint is therefore, not maintainable and liable to be dismissed with cost.
11) It is contended that the understanding of commercial terms as per Exh.‘A’ were entered into 22/11/06. The complaint is required to be filed within a period of 2 years from such date. It is filed on 22/05/2009. The complaint is therefore, barred by the law of limitation. In the said commercial terms which were singed at Ahmedabad it is clearly mentioned in condition No.17 that premises is ready for possession. It is contended that the Opposite Parties thereafter requested the Complainant to take the possession of the said property, but the Complainant with malafide intention did not take the possession of the said premises for a period of 60 days thereafter. Which resulted keeping the property for a continuous period of 6 months therefore, the Opposite Parties are entitled to forfeit the entire security deposit. However, at the relevant time the Opposite Parties agrees to refund security deposit equivalent to 3 months rent which the Complainant orally agreed but thereafter, raised the demand for refund of entire security deposit. The Opposite Parties however, willingly offered to refund the half of the amount and forfeit the half of the amount as per letter dtd.27/11/2007 which is at Exh.‘D’. The Opposite Parties denied the other allegations and contended that the complaint be dismissed with compensatory cost.
12) The Complainant submitted affidavit of evidence of Kamlesh Modi and written argument. The Opposite Parties filed their additional written statement as well as written argument. We heard the Ld.Adv. Shri. R.R.Singh for the Complainant and Shri. L.C. Joshi, Ld.Adv. for the Opposite Parties. The Advocate for the Complainant pointed out that as per the last clause of Exh. ‘A’, it was agreed that in the unlikely event of the issues concerning in the terms and conditions of this LOI remaining unsolved amicable, the lessor agrees to refund the security deposit paid by intending lessee. He therefore, submitted that as the Complainant had demanded for several times as per letter dtd.22/06/07, 19/10/07 and by legal notice dtd.12/03/09 the security deposit to the Opposite Parties the claim made by the Complainant of Rs.7,000/- towards compensation plus legal expenses is just and proper. It is submitted that the cause of action for this complaint as alleged in the complaint had taken place at Bombay from the office of the Complainant, this Forum has jurisdiction to try this complaint. He submitted that as the Complainant has filed Civil Suit No.1608/09 before the Hon’ble High Court for refund of Rs.2,70,000/- and interest thereon the complaint for grant of compensation and legal expenses as prayed may be allowed. In support of his submissions, as regards the jurisdiction of this Forum he relied the observations in the case of Bhagwat Shamrao Raut V/s. M. Kumar Builders, 2006 (4) All MR (Journal) 28. He also relied the observations in the case of M/s. Kashiprasad Cotton Pvt. Ltd. V/s. Kamladevi Kanaiyalal Shrawagi reported in 2005 (3) All MR (Journal) 30 and the judgment of Andhra Pradesh High Court in Writ Petition No.5363/2009 dtd.18/03/2009 and submitted that this Forum has jurisdiction to entertain and try the present complaint and grant the relief as claimed.
13) The Ld.Advocate for the Opposite Parties Shr.L.C. Joshi has specifically relied the observation in the case reported in AIR 2009 Supreme Court 1607 (Cited Supra) and also submitted that as all the transaction had taken place at Ahmedabad and the Complainant handed over the cheque of security deposit at Ahmedabad and the Opposite Party is having its office at Ahmedabad this Forum has no jurisdiction to try and decide this dispute. He therefore, submitted that the complaint may be dismissed with cost.
14) While considering the rival contentions first of all we hold that in view of the transaction entered between the Complainant and the Opposite Parties, it cannot be considered that the Complainant/lessee is ‘Consumer’ and the Opposite Party i.e. owner of Himalaya Mall is ‘Trader’. In this context we hold that the submissions made by the advocate for the Opposite Parties and the case relied by him reported in AIR 2009 Supreme Court 1607 (Cited Supra) is perfectly applicable to the facts of this case, wherein the Hon’ble Supreme Court held that the prospective purchaser/lessee is not a consumer, the owner is not a Trader or Service provider and the grievance does not relate to any matter in regard to which a complaint can be filed. Therefore, any grievance by the purchaser/lessee will not give rise to a complaint or consumer dispute and the Fora under the Act will not have jurisdiction to entertain or decide any complaint by the purchaser/lessee against the owner. Further more as per the settled law a compensation symplicitor arising any breach of contract must be filed before a Civil Court. District Forum has therefore, no jurisdiction to entertain the complaint as there is no consumer dispute and the Complainant is not a consumer. It is also pertinent to note that in the present case the Complainant after filing of the present complaint appears to have been realized the said legal position and admittedly filed Civil Suit before the Hon’ble High Court bearing no.1608/2009 on 19/06/2009 and claimed the security deposit in that suit of Rs.2,70,000/-and interest thereon. Thus, in our view as the Complainant himself availed the jurisdiction as regards the main claim regarding the refund of the security deposit by way of Civil Suit before the Hon’ble High Court by way of filing Civil Suit 1608/2009 and has also claimed interest thereon in the said suit and admitted the jurisdiction of the Civil Court. In our candid view he has admitted the jurisdiction of Civil Court by concealing that this Forum has no jurisdiction to entertain the claim regarding refund of security deposit. As the Complainant himself has filed claim before the Hon’ble High Court for refund of Security deposit and interest thereon we hold that the ancillary claim made in this complaint for grant of compensation by way of mental agony and harassment and hardship caused to the complaint is not required to be decided by this Forum as the same is dependent upon the decision in the said suit regarding the entitlement of the Complainant as claimed in the said suit. Furthermore, from the document at Exh.‘A’, it appears that the understanding between the Complainant and the Opposite Parties was regarding of commercial terms and on that terms also we hold that the transaction in question cannot be entertained as consumer dispute within the meaning of Sec.2(1)(d) as the Complainant agreed under the said document at Exh.‘A’ to take out the lease premises to conduct business of homes Milton Treo, in the leased premises. It is also pertinent to note that it is not dispute that the document at Exh.‘A’ was executed on 22/11/06 between the parties at Ahmedabad and the cheque was also handed over in confirmation of the said document by the Complainant to the Opposite Party No.1 at Ahmedabad. It is also the fact that the Opposite Party is also having its office at Ahmedabad Sec.11 of Consumer Protection Act, 1986, speaks about jurisdiction of this Forum. Sub Sec.(2) of Sec.11 of Consumer Protection Act, 1986 states that the Consumer Complaint shall be instituted in a District Forum within the local limits of whose jurisdiction the Opposite Party at the time of institution of complaint, actually and voluntarily resides or carries on business, or has branch office or personally works for gain. A consumer complaint shall be instituted in a District Consumer Forum within whose local limits the cause of action wholly or in part arises. In our view, as per the document at Exh.‘A’ the whole cause of action appears to have been arisen at Ahmedabad, thus, on that count we hold that as referred above as per Sec.11 of the Act, this Forum has no jurisdiction. The submission made by the Adv. for the Complainant that the Complainant is having office at Ballard Estate i.e. within the jurisdiction of this Forum and the cheque was handed over to the Complainant at Bombay and the correspondence regarding the claim was made from Bombay and therefore, the part of cause of action arose within the jurisdiction of this Forum and therefore, the present complaint is maintainable before this Forum, in view of the authorities relied by him Cited Supra in our view is totally devoid of merits. In our view the cheque in question as per the document at Exh.‘A’ appears to have been handed over to the Opposite Party then the said document at Exh.‘A’ was executed by the parties at Ahmedabad and therefore, the whole cause of action for this complaint arose at Ahmedabad and as such, this Forum has no jurisdiction to try this complaint. Merely by sending some letters to the Opposite Parties regarding the demand of security deposit from Mumbai cannot be considered that the cause of action in part arose within the jurisdiction of this Forum. We hold that the authorities relied by the Ld.Advocate for the Complainant are not anyway helpful to decide the claim made in the complaint in favour of the Complainant. We have already held that in view of the observations of the Supreme Court the Complainant cannot be held as a ‘Consumer’ and the Opposite Party cannot be held as ‘Trader’. In view of the conduct and action taken by the Complainant as regards its claim for refund of security deposits and interest thereon before the Hon’ble High Court by filing Civil Suit, we hold that impliedly the Complainant himself has admitted that this Forum cannot entertain and try the claim of security deposit between the Complainant and the Opposite Parties and in view considering all legal aspects the claim made in the complaint is not maintainable and liable to be dismissed with cost of Opposite Parties. In the result we pass the following order -
O R D E R
i. Complaint No.167/2009 is dismissed with cost of Rs.2,000/- (Rs. Two Thousand Only) to the Opposite Parties.
ii. The Complainant to comply the aforesaid order within 1 month from the receipt of copy of this order.
iii. Certified copies of this order be furnished to the parties.
