Per Mr.B.S.Wasekar, Hon’ble President
1) The present complaint has been filed by the complainants u/s 12 of the Consumer Protection Act, 1986. According to the complainants, they were interested in residential flat at Pune. Therefore, they visited the office of the opponent at Pune. They booked flat and paid booking amount of Rs.25,000/- on 30th March, 2006. Thereafter, they paid entire consideration amount of Rs.15,68,000/-. The agreement of purchase was executed on 11th May, 2006. Thereafter, vide letter dated 24th May, 2006, the O.P. confirmed that the possession of the flat would be handed over in December-2007. However, the possession was actually handed over on 16th November, 2008. As the possession was not handed over as per agreement, the complainant No.2 had to make arrangements for temporary accommodation at the rate of Rs.12,000/-. Therefore, the complainants suffered loss. The complainants are entitled for compensation towards the rent of Rs.1,32,000/- or interest at the rate of 15% per annum on Rs.15,68,000/-. At the time of agreement of sale, the complainants were informed that shopping arcade in front of their flat will be of single storeyed and there will be no obstruction to the flat of the complainant i.e. D-407 on 4th Floor. But, the shopping centre has been constructed of five storied structure and the view of the complainants is blocked. The windows of the shopping centre are across the two bedrooms thereby there is no privacy to the complainants. It is inconvenient to the complainants. It is also hazardous from the security point. There is blockage of air, light and ventilation. The privacy is totally hampered. It affected the personal life of the complainants and their family members.
2) At the time of booking, the opponent demanded amount of Rs.10,916/- towards service tax. The said amount was retained by the opponent and not paid to the government. After complaint, it was repaid to the complainants on 10th May, 2007 without interest. The complainants are entitled for interest on it at the rate of 18% per annum. The Marketing Manager of the opponent insulted and humiliated the complainants during their personal meeting on 31st August, 2006. The protest was lodged to the Directors’ of the opponent and causal apology was offered. During construction, the complainants suggested certain changes in the internal work. The opponent charged extra amount under the pretext of extra work. The complainants are entitled for refund of Rs.20,000/-. The opponent had collected amount of Rs.984/- for the work which was not done. The opponent further collected Rs.40,000/- towards M.S.E.B. charges on 11th May, 2006. However, the opponent paid only Rs.4,095/- to M.S.E.B. for installation of electric meter on 14th October, 2008. The opponent handed over receipt of Rs.4,095/- to the complainants. The complainants are entitled for refund of Rs.35,905/- alongwith interest at the rate of 15% per annum. At the time of handing over the possession, on 16th November, 2008, the opponent had forcibly obtained signatures of the complainants on various documents.
3) The opponent had leased out an area of 327 Sq.Mtr. of the society plot to M.S.E.B. at nominal rent of Rs.1 per Sq.Mtr. The opponent has utilized the F.S.I. and other benefits on the lease area. The opponent is receiving benefits for its commercial project at the cost of complainants’ society. The opponent has not handed over the required documents to the complainants and also failed to execute the conveyance in favour of the society. The opponent has charged amount of Rs.35,000/- for open parking space and Rs.50,000/- for stilt parking space and illegally allotted parking space. There is no parking space available for allotment by the society. Such allotment of parking space by the opponent is contrary to the judgment of Hon’ble Supreme Court in case of Nihalchand Laloochand. The complainants vide letter dated 15th May, 2010 listed their grievances and demanded compensation of Rs.8,80,226/-. In reply, the opponent has merely denied the contentions and refused to compensate. Therefore, the complainants have filed this complaint to direct the opponent to pay compensation by way of interest at the rate of 15% per annum on the amount of Rs.15,68,000/- for the delay of eleven months in handing over the possession and/or amount of Rs.1,32,000/- towards the rent paid for alternate accommodation during the period from December-2007 to November-2008. The complainants have prayed for interest at the rate of 18% per annum on the amount of Rs.10,916/- from 2nd June, 2006 to 10th May, 2007. They have prayed for amount of Rs.20,000/- for the work not done. They have claimed amount of Rs.35,905/- which was collected in excess in the name of M.S.E.B. meter deposit with interest at the rate of 15% per annum. The complainants have prayed for direction to cancel all the allotments of the car parking and refund the amount so collected to the society so that the society will allot car parking space as per the bye laws. They have also prayed to direct the opponent to execute the conveyance in favour of the society forthwith and to saddle the cost of Rs.5,000/- per day payable to the society from the date of formation of the society till execution of the conveyance in favour of the society. They have also prayed for compensation of Rs.5 Lakhs for mental harassment or in the alternative to provide another flat. They have prayed for cost of this proceeding Rs.50,000/-.
4) The opponent appeared and filed written statement. It is submitted that the complaint is filed after two years from the date of possession. The complainants are not residing in their Flat No.D-407. It is rented out since the date of possession till now. One Mr.Brijmohan Soni is residing in this flat and paying rent to the complainants. The complainants have produced false rent receipt containing that complainant No.2 was residing at Pune and paying rent. Vide letter dated 23rd October, 2006, the Complainant No.2 informed that he was shifting to New York for official assignment. Therefore, requested to add new address at Mumbai. The complainants purchased this flat by way of investment. It is submitted that the flat is situated at Pune. Amount was paid at Pune. The head office of the opponent is at Pune. Therefore, this Forum has no jurisdiction. The complaint is not signed by complainant No.2 therefore it is liable to be dismissed for non joinder of necessary party. The complainant No.2 has not filed any affidavit alongwith the complaint. There is no application under section 12(1)(c) of the Consumer Protection Act, 1986 which is mandatory. The society is not party to this complaint therefore it is liable to be dismissed for non joinder of necessary party. The complaint is barred by limitation at it is filed after two years from the date of possession. The complainants had all dealings with head office of the opponent which is at Pune. Entire amount was paid at Pune. Entire correspondence was with the Pune head office. The flat is situated at Pune. Therefore, this Forum has no jurisdiction to try this complaint. The complainants agreed for condition in para 13 of the agreement which is for delayed possession. The complainants asked for various changes in the flat therefore this opponent is not liable for delayed possession. The complainants asked for extra work. The complainants have produced false rent receipt. It is denied that there is obstruction to the view point of the complainants flat. The lay out plan and building plan was already enclosed with the registered agreement singed by both the parties. The shopping arcade is not for five storied and the privacy and security is not affected. The issue of sale tax was pending in the year-2006 before the Hon’ble High Court and Supreme Court therefore service tax was collected at the time of booking. The same was returned to the complainants in the year-2006 after the decision by the Hon’ble Supreme Court and High Court. All the other allegations are denied. The complaint is false and liable to be dismissed with compensatory cost.
5) Before filing written statement, the opponent filed application taking preliminary objection about the territorial jurisdiction of this Forum. The said application was filed on 6th January, 2011. After hearing both the parties, this Forum has passed the order dated 20th January, 2011 and rejected the preliminary objection and directed the opponent to file its written statement. Thereafter, the opponent filed its written statement. In the written statement, the opponent took several defences including that this Forum has no territorial jurisdiction to try this complaint. Chance was given to both the parties to lead their evidence and accordingly both the parties filed their affidavits of evidence. In the affidavit of evidence, the complainants have specifically stated that the opponent has branch office in Mumbai within the jurisdiction of this Forum therefore this Forum has territorial jurisdiction to decide this complaint. In the written notes of argument para 2, the learned advocate for the complainant has submitted that the opponent is a reputed builder and developer operating in many cities in India and abroad and has a branch office at Shivaji Park, Mumbai and registered office at Shivaji Nagar, Pune. It is further submitted that most of the transactions including the first and the last payment and intermediate enquiries were made at Mumbai office of the opponent. Therefore, this Forum has jurisdiction. Thus, the chance was given to both the parties to lead their evidence on the point of jurisdiction. Earlier, preliminary objection was rejected and the opponent was directed to file its written statement. It is settled law that issue of territorial jurisdiction is mixed question of law and facts. Therefore, it is necessary to give chance to the parties to lead their evidence and after hearing both the parties, the Forum has to decide the issue of jurisdiction. Therefore, after giving chance to both the parties, we are taking the issue of jurisdiction for our consideration.
6) After hearing both the parties and after going through the record, following points arise for our consideration.
POINTS
Sr. No. | Points | Findings |
1) | Whether this Forum has territorial jurisdiction to decide this complaint ? | No |
2) | Whether the complaint is barred by limitation ? | Not decided |
3) | Whether the complaint is maintainable in the present form ? | Not decided |
4) | Whether the complaint is bad for non joinder of necessary party ? | Not decided |
5) | Whether the complaint entitled for the relief as claimed ? | Not decided |
6) | What Order ? | As per final order |
REASONS
7) As to Point No.1 :- There is no dispute that the disputed flat is situated at Pune. As per complaint para 5, the complainants visited the Pune office of the opponent. They booked the flat at Pune. As per para 6 of the complaint, they paid the booking amount of Rs.25,000/- on 30th March, 2006 and thereafter the entire consideration amount of Rs.15,68,000/- was paid and the agreement was executed on 11th May, 2006. Admittedly, registered office of the opponent is at Pune and they are having branch office at Mumbai. The registered sale deed is on record. It was registered at Pune. In the entire complaint, it is nowhere stated that any amount was paid at Mumbai office or any talk took place at Mumbai office of the opponent. As per para 21 of the complaint, the opponent has their functioning branch office at Mumbai therefore this Forum has jurisdiction. The learned advocate for the complainants has drawn our attention to the amended provision of section 11(2) of the Consumer Protection Act, 1986 and submitted that as the opponent has branch office at Mumbai within the jurisdiction of this Forum, this Forum has territorial jurisdiction to decide this complaint. There is no dispute that the opponent has branch office at Mumbai within the jurisdiction of this Forum. But the question arise whether this Forum has jurisdiction merely because one branch office is situated within the jurisdiction of this Forum. The learned advocate for the opponent has submitted that merely because there is one branch office within a jurisdiction, this Forum has no territorial jurisdiction. At this juncture, we would like to rely upon the judgment of the Hon’ble Supreme Court in the case of Sonic Surgical –Versus- National Insurance Company Limited in Civil Appeal No.1560 of 2004 decided on 20th October, 2009. In this judgment, the Hon’ble Supreme Court has held as under:
Learned counsel for the appellant submitted that the respondent-insurance company has a branch office at Chandigarh and hence under the amended Section 17(2) the complaint could have been filed in Chandigarh. We regret, we cannot agree with the learned counsel for the appellant. In our opinion, an interpretation has to be given to the amended Section 17(2) (b) of the Act, which does not lead to an absurd consequence. If the contention of the learned counsel for the appellant is accepted, it will mean that even if a cause of action has arisen in Ambala, then too the complainant can file a claim petition even in Tamil Nadu or Gauhati or anywhere in India where a branch office of the insurance company is situated. We cannot agree with this contention. It will lead to absurd consequences and lead to bench hunting. In our opinion, the expression 'branch office' in the amended Section 17(2) would mean the branch office where the cause of action has arisen. No doubt this would be departing from the plain and literal words of Section 17(2)(b) of the Act but such departure is sometimes necessary (as it is in this case) to avoid absurdity. [vide G.P. Singh's Principles of Statutory Interpretation, Ninth Edition, 2004 P. 79]
In the present case, since the cause of action arose at Ambala, the State Consumer Redressal Commission, Haryana alone will have jurisdiction to entertain the complaint.
Identical facts are before us. In the complaint, there is no whisper that any amount was paid at Mumbai office or any correspondence was done with Mumbai office or any cause of action arose at Mumbai. On the contrary, the complaint shows that complainants visited Pune, paid the booking amount and booked the flat. It also shows that entire amount was paid at Pune. In affidavit of evidence and argument, the complainants tried to submit that some amount was paid at Mumbai office and some correspondence was with Mumbai office of the opponent. But, the complainants have not produced any documentary evidence to corroborate their contentions. Therefore, as per the evidence on record, the cause of action arose at Pune and not at Mumbai. Admittedly, opponent’s registered office is at Pune. As discussed above, cause of action arose at Pune and not at Mumbai. Therefore, this Forum has no territorial jurisdiction to decide this complaint.
8) As to Point No.2 to 5 :- As discussed above, this Forum has no jurisdiction to decide this complaint. As this Forum has no jurisdiction, these points can not be decided by this Forum. We think it will be just and proper to give liberty to the complainants to seek relief in appropriate Forum/Authority. Hence, we proceed to pass the following order.
O R D E R
1) Complaint stands dismissed for want of jurisdiction.
2) The complainants are at liberty to seek relief in appropriate Forum/Authority if they desire.
3) Parties are left to bear their own costs.
4) Inform the parties accordingly.
Dated 10th April, 2014
