Delhi

StateCommission

CC/923/2017

HIMANSHU JAIN - Complainant(s)

Versus

M/S EARTH INFRASTRUCTURE LTD. - Opp.Party(s)

VIKAS JAIN

06 Jul 2017

ORDER

IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL, COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments : 06.07.2017

Date of Decision : 10. 07.2017

First Appeal  No.923/2017

 

IN THE MATTER OF:

 

Shri Himanshu Jain

S/o. Shri Umesh Kumar Jain,

R/o. House No.559, Sector-17,

Huda, Jagadhri,  Harayana-135003.                                                   ……Complainant

                                                                       

                                                                        Versus

 

M/s. Earth Infrastructure Ltd.,

Regd  Address : B-100, Sector Floor,

Naraina Industrial Area,

Phase-I, South West Delhi-110028.

 

Also at : 26, 1^st Floor, Pusa Road,

Karol Bagh, New Delhi-110005. 

 

Sit Office at:

            A-1, C&D, Second Floor,

            Near Metro Station, Sector-16,

            Noida-201301.                                                                                 ….Respondent

 

CORAM

HON’BLE SH. O.P.GUPTA, MEMBER(JUDICIAL)

HON’BLE SH. ANIL SRIVASTAVA, MEMBER

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                    Yes/No

2.      To be referred to the reporter or not?                                                                                                 Yes/No

PER  : HON’BLE SHRI ANIL SRIVASTAVA, MEMBER

Present: Ms. Pallavi, counsel for complainant.

 

            Shri Himanshu jain resident of House No.559, Sector-17, Huda, Jagadhri, Harayana-135003 has filed a complaint against M/s. Earth Infrastructure Ltd., hereinafter referred as complainant  and the opposite party respectively before this Commission with the following prayer:-

1. Direct the respondent to refund the amount paid towards the penthouse i.e. Rs.27,06,832/- alongwith 24% p.a interest  till the date of payment to the complainant.
2. Direct the respondent to pay Rs.5,00,000/- to complainant as compensation for mental and physical  harassment;
3. Direct the respondent to pay Rs.1,00,000/- to complainant as cost of the present litigation; and
4. Pass any other order(s) as this Hon’ble Commission deems fit in the interest of justice.

Facts of the case are these.

            The complainant had booked a Penthouse apartment admeasuring 4500 sq feet with open terrace for the total consideration amount of Rs.1,35,34,160/- inclusive of Service Tax in Earth Tower, Greater Noida (Noida Extension). The complainant had made the payment of Rs.134,53,416/- as per the construction linked plan to the respondent vide cheques against the said booking. The respondents company confirmed the booking of the complaisant and sent a welcome letter, The complainant was allocated a Ref No,ETR-5765 against the said  booking. The complainant  further made the payment of Rs.13,53,416/- to the respondent company within time as agreed to between the complainant and the respondent company.

However the complainant was surprised and shocked that the  respondent company without any information or consent of the complainant had changed the layout  plan of Akash Tower-I from one Penthouse to four Double Storey Duplex Apartments.  The complainant sent a email informing the respondent company about his disappointment with regard to the change in the layout plan and personally met Mr. Amit Aggarwal one of the Director (Marketing) respondent company.

The complainant after various meeting with the design team, who confirmed the complainant about the change in the layout plan and after meeting Mr. Amit Aggarwal (Director Marketing) who advised the complainant to seek refund of  money from the respondent company, submitted his request for refund along with all original papers to the respondent company which was duly received by the respondent company.

The complainant after submitting his request for refund of his money met officials from respondent company and sent various emails to them regarding expeditious refund of money but no heed was paid by the respondent company.

His request for refund of money was also followed through reminders but no heed was paid to his requests. Consequently, the complainant served a legal notice to the OP seeking refund of the amount of Rs.27,06,832/- alongwith 24% per  annum within 15 days receipt of the legal notice. Since no action was taken on the legal notice issued the complainant has filed a complaint before this commission under Section 17 of the Consumer Protection Act, 1986.

This matter was listed before this commission for admission hearing on 06.07.17 when Ms. Pallavi appeared and argued the matter. We have also perused the record.

 

In the first instance we notice that this Commission does not enjoy the jurisdiction to try and hear this case keeping in view the provision of Section 17 of the Consumer Protection Act. As per provision of Consumer Protection Act, 1986, Section 17, posits as under:-

{(2) A complainant shall be instituted in a State Commission within the limit of whose jurisdiction:-

1. The opposite party or each of the opposite parties where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain; or 
2. Any of the opposite parties, where there are more than on, at the time  of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such case either the permission of the State Commission is given or the opposite parties who do not reside or carry on business or have a branch office or personally works for gain, as the case may be, acquiesce in such institutions; or
3. The cause of action, wholly or in part, arises.}

On a plain reading of the afore extracted provision it becomes clear to us that a complaint under the Act can be instituted before a State Commission within limits of whose jurisdiction any one of the three situations contemplated in the provision is shown to exist. The use of the word `of’  at the end of sub-clauses (a) & (b) of the said sub-section is significant and reflects the object of the legislation, leading to the conclusion that each of the three contingencies enumerated therein is independent of each other And not cumulative.

            The expression `casue of action’ is neither defined in the act nor in the Code of Civil Procedure. However, by virtue of a catena of decisions of the Supreme Court, wherein the meaning of the said expression in legal parlance has been explained, the expression has been held to be of wide import. Generally, the expression `cause of action’ is described as `bundle of facts’ which the petitioner must prove, if traversed, to entitle him to the relief prayed for.

            It would be manifestly clear from bare reading of the afore mentioned provision of the Act that the complaint can be filed before the Fora where the cause of action arose. In the subject the cause of action arose first at Dubai and thereafter at Mumbai.

            Again in Navinchnadra N. Majithia s.State of Maharashtra & Ors (2007) 7 SCC 640, explaining the  import of the said expression, in his concurring judgement, K.T.Thomas J. observed as under:

            “The collection of the words “cause of action, wholly or impart, arises” seems to have been lifted from Section 20 of the Code of Civil Procedure, which section also deals with the jurisdictional aspects of the courts. As per that section the suit could be instituted in a court within the legal limits of whose jurisdiction the “cause of action wholly or in part arises”. Judicial pronouncements have accorded almost a uniform interpretation of the said compendious expression even prior to Fifteenth Amendment of the Constitution as to mean “the bundle of facts which would be necessary for the plaintiff to prove, it traversed, in order to support his right to the judgement of the court.”

            In Read V. Brown Lord Esher, M.R. [(1988) 22 QBD 125:58 LJOB 120:60LT 250 (CA)],  adopted the definition for the phrase “cause of action that it meat

            “every fact  which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgement of the court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved”.

            In Kandimalla Raghaviah & Co. Vs. National Insurance Co. Ltd. & Anr., (2009) 7 SCC 768, the Hon’ble Supreme Court has held that “cause of action” is cause of action which gives occasion for and forms the foundation of the suit.

We have given our a careful consideration to the submission advanced by the Ld. Counsel for the complainant about the  arguments contained in para 64 of the averment. That does not change the situation. This clause of the agreement does not over ride, the provisions of law as ruled in Abhishek V/s. Unitech the NCDRC which says that  the agreement between the parties does not  and cannot  over ride the statutory provision.

Having regard to this we order return of the complaint for filling before the Consumer Fora of appropriate jurisdiction . We order accordingly.

Copy of this order be sent to both the parties free of cost as contemplated under the Consumer Protection Rules 1987 read with Consumer Protection Regulations 2005.

            File be consigned to Record Room.

 

 

 

 

 

(ANIL SRIVASTAVA)                                                                      (O.P.GUPTA)

MEMBER                                                                                          MEMBER (JUDICIAL)

 

 

NK