Delhi

North East

CC/110/2019

Mohd. Hasin Ansari - Complainant(s)

Versus

M/s A.B. Communication - Opp.Party(s)

10 Dec 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: N-E

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 110/19

 

In the matter of:

 

	Mohd. Hasin Ansari S/o Gulam H. No. 278, Gali No.5 Rajiv Gandhi Nagar, Near New Mustafabad Dayalpur, Delhi-110094.	Complainant
	Versus
	M/s A B Communication B 264/3, G/F Old No.B-254 Gali No.4, Nehru Vihar, Near Sanjay Chowk, Delhi-110094 (Through its Principle Officer/Proprietor)   HDFC Bank Ltd Galaxy Business Park Sector-62, Noida (through its Branch Manager)	Opposite Parties

 

DATE OF INSTITUTION:                   JUDGMENT RESERVED ON:                           DATE OF DECISION      :

05.12.2019 10.12.2019 10.12.2019

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Present complaint pertains to grievance against OP2 for having wrongfully withdrawn installments in excess without any authority and consent and non refund of two EMIs wrongly deducted by OP2 with which complainant had availed of consumer durable loan / finance facility with respect to a Samsung Mobile Phone purchased from OP1. On perusal of documents, this Forum has chanced upon letter dated 21.05.2018 written by complainant to OP at its Paharganj Delhi Branch with receipt endorsement by the said branch. The service branch of OP2 against which remedy/ relief is prayed for is outside the territorial jurisdiction of this Forum and the complainant has tried to create jurisdiction of this Forum by unnecessarily impleading OP1 which was the seller of the subject mobile phone as no manufacturing defect or such like allegation has been leveled against it and the grievance solely is against OP2.
2. Section 11(2) (a),(b),(c) of the CPA governs the determination of territorial jurisdiction of the District Forum for entertaining a complaint and leaves no ambiguity for admission of complaint to be instituted in a District Forum within the local limits of whose jurisdiction the opposite party (ies) or any of the opposite parties at the time of institution of complaint actually and voluntarily resides or carries on business or has a branch office or personally works for gain and in case of several opposite parties, complaint to be filed only at one particular place on the choice of the complainant subject to the condition that;

1. the District Forum, where the complaint has been instituted has given permission to the complainant to institute his complaint in that Forum despite the fact that some of the opposite parties are not residing or not having branch, or are not carrying on business or are not working for gain within the local limits of the jurisdiction of such District Forum; or
2. the opposite parties not so residing, or not having branch office or not carrying on business or not personally working for gain within such territorial limits, acquiesce in such institution.

Clause b of sub section 2 of section 11 has not provided any criteria or guideline on basis of which the complainant can ensure that the District Forum would, in all probability grant such permission; this therefore is a matter within the discretion of the District Forum.

The Hon’ble State Commission, Delhi has pertinently observed that vide notification dated 20.04.1999, the Hon’ble Lt. Governor of NCTD divided Delhi in ten Districts defining their respective area and this notification was issued for being complied with instead of being flouted. Obviously, therefore, the purpose of defining jurisdiction was to regularize and distribute the work to bring certainty instead of creating chaos. If all the litigants prefer to chose one Forum, that Forum would be overburdened and remaining nine Forums would become idle and had dismissed the Appeal.

3. On 27.09.2012 it was observed that territorial jurisdiction of various District Forums of Delhi was a matter of great public importance. Therefore, Secretary & Commissioner, Deptt of Consumer Affairs, Govt. of NCT of Delhi was directed to appear in person on notification. Mr. Shakti Bangar, Asstt. Director assured the Hon’ble National Commission to communicate directions of National Commission to officers concerned for compliance. Hon’ble National Commission was informed by some advocate that notification relating to distribution of jurisdiction in various consumer for a functioning in Delhi was not being followed in its letter and spirit. Therefore Deptt of Consumer Affairs was directed by Hon’ble NCDRC to furnish reports from all the District Forums as to whether they were strictly following the notification and if not, they were to give the number of cases which have been entertained / decided contrary to the stipulation contained in notification. Mahesh Ramnath revision petition was dismissed by Hon’ble NCDRC on 09.09.2014. However irrespective of such dismissal, question of territorial jurisdiction already stood decided before that by Hon’ble NCDRC by orders dated 27.09.2001 itself. Further directions of Hon’ble NCDRC dated 05.11.2012 apprised the Ld. Commissioner Cum-Secretary Department of Consumer, Food and Civil Supplies Government of NCT of Delhi about its concern with regard to exercise their territorial jurisdiction by ten consumer Fora for which the Ld. Commissioner had assured the Hon’ble NCDRC that various Distt Fora  working in NCTD shall exercise its jurisdiction and power strictly and accordance with the demarcation of their respective jurisdiction in terms of Government of Delhi, Director of Consumer Affair, Gazette Extra Ordinary (part IV) notification No. F.50(47)46/F&S (CA) dated 20.04.1999. According to Hon’ble NCDRC this is otherwise necessary to avoid Forum shopping and thereby has over ruled the view taken by Hon’ble SCDRC in Mahesh Ram Nath case and impliedly over ruled other such decision of Hon’ble SCDRC including Sarwan Singh case, Sardar Swaranjeet Singh case, Holy Family Hospital etc. On perusal of the above said notification it is clear that by virtue of this said notification, Hon’ble Lt. Governor of Delhi has made specific provision in general for allocation of business amongst various District Forums ear marking and specified the territories falling under different police station to each District Forum. The cause of action, residence of the OP, head office or branch office or area corporation of OP shall determine the territorial jurisdiction of each district Forum in consonance with the area specified in the said notification of Hon’ble LG of Delhi. Moreover, both the branch office and cause of action partly or Holly should coexist within the territorial jurisdiction of the district Forum to attract of its jurisdiction in view of Sonic Surgical’s case. In Sonic Surgicals Vs National Insurance Co. Ltd, the Hon’ble Supreme Court on 20.10.2009 has sealed the issue of territorial jurisdiction leaving no ambiguity with respect thereto.  
4. The Director, Consumer Affairs, issued a circular No. F50(21)/2003/F&S/CA/1053-1054 dated 07.11.2012 conveying the feelings of National Commission regarding not following the notification in its letter and spirit. It was also conveyed that National Commission took a very serious view and stated that inspite of notification promulgated by Govt. of NCT of Delhi on 20.04.1999 clearly demarcating jurisdiction district wise, District Forums were violating the order. On the basis of said letter Registrar of Hon’ble SCDRC wrote a letter No. F1. (Misc)/SC/2012/5045 dated 08.11.2012 advising President, District Forums to strictly comply with the directions i.e. the above mentioned notification/circular. National Commission took a serious view about not following the notification defining territorial jurisdiction.

The Hon’ble National Commission has held that the cause of action is a 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 cause of action falling within the territorial jurisdiction of the concerned district Forum.

Coming to the complaint before is for admission, the complainant has failed to show anywhere in the complaint as to how the present complaint falls within the territorial jurisdiction of this Forum under Section 11 (2) (a) or (b) or (c)since OP2’s loan servicing branch is located at Paharganj, Delhi with which the ct was corresponding regarding his EMIs issue and seeking refund for overchargingand therefore no cause of action wholly or partly has arisen within the territorial jurisdiction of this Forum anywhere as per the pleadings in the complaint.

5. In the present case therefore none of the conditions laid down for admissibility of complaint under Section 11 sub clause (a) (b) (c) is getting fulfilled in terms of the arraignment of opposite party (ies) in as much as they are neither residing nor carrying on business nor having a branch office nor are personally working for gain and lastly no cause of action wholly or in part has arisen within the jurisdiction of this Forum. The above mentioned complaint is hereby dismissed in limine due to erroneous jurisdiction which does not accord or vest in this Forum power to entertain and adjudicate the present complaint.
6. Let the present complaint therefore be returned to the complainant with liberty to the complainant to file the same before the appropriate Forum as per Section 11(2) of the Consumer Protection Act. Let the copy of this order be sent to the complainant free of cost. 

      File be consigned to Record Room.

7. Announced on 10.12.2019

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member