Punjab

Ludhiana

CC/16/690

Nimit Jain - Complainant(s)

Versus

M/s Jaypee Infratech Limited - Opp.Party(s)

Hardip singh Adv.

02 Jun 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No.690 of 19.09.2016

Date of Decision            :   02.06.2017

 

Nimit Jain son of Sh.Rakesh Kumar Jain r/o House No.1310, Old Court Road, Ward No.22, Rajindra Nagar, Civil Lines Tech, Part-I, Ludhiana.

….. Complainant

 

Versus

M/s Jaypee Infratech Limited having registered office at Jaypee Greens Sec-128, Noida, Uttar Pradesh.

…Opposite party

 

 

APPLICATION FOR DISMISSAL OF COMPLAINT      

 

 

QUORUM:

 

SH.G.K.DHIR, PRESIDENT

SH.PARAM JIT SINGH BEWLI, MEMBER

 

COUNSEL FOR THE PARTIES:

 

For complainant            :           Sh.Hardip Singh, Advocate

For OP                           :           Sh.Sumit Sharma, Advocate along with 

   Sh.Abhishek Raj, Advocate

                                     

PER G.K DHIR, PRESIDENT

 

 

1.                          Application for dismissal of the complaint filed by Op by claiming that complaint under Section 12 of the Consumer Protection Act, 1986(hereinafter in short referred to as ‘Act’) is pending. It is claimed that this Forum has no territorial jurisdiction and nor the complainant is consumer within the meaning of the Act. Complainant fallaciously presented as if he has locus standi to file the complaint. As per clause 10.5 of the standard terms and conditions of provisional allotment, the Courts at Gautam Budh Nagar, Uttar Pradesh alone has jurisdiction. Registered office of OP is located in Sector 128, Noida, Gautam Budh Nagar. No cause of action accrued to the complainant within the jurisdiction of this Forum. Complainant by agreeing to the standard terms and conditions of the provisional allotment has waived his right to file the case or to raise any dispute in any court other than Gautam Budh Nagar (U.P). Even this Forum has no pecuniary jurisdiction because the cost of the unit agreed to be purchased is Rs.28,33,200/-. So, the complaint deserves to be dismissed at limine stage.

2.                In reply to this application, it is claimed that the provision, under which, the application filed is not disclosed. Rather, the complaint is filed in Forum having proper jurisdiction. Application is not maintainable because the proceedings with the OP company were arrived at Ludhiana. Application for allotment of the apartment was signed by the complainant at Ludhiana and even standard terms and conditions of the allotment were signed at Ludhiana. Payments through RTGS were also made from Ludhiana and as such, this Forum has jurisdiction to entertain, try and adjudicate the present complaint. Application alleged to be filed with ulterior motive for harassing the complainant and for delaying the proceedings in the complaint. Each and every other allegation levelled in the complaint denied by praying for dismissal of application. Rather, clause 10.6 of the standard terms and conditions of provisional allotment alleged to be not applicable to the facts of the present case. Citations mentioned in the application alleged to be not applicable to the facts of the present case.

3.                Arguments on this application were heard first because the same has bearing on maintainability of the complaint. Even if specific provision, under which, the application filed is not cited, but despite that after going through provisions of Section 11 of the Act, it is made out that a complaint can be instituted in a District Forum within the local limit of whose jurisdiction, the cause of action wholly or in part arises or opposite party or each of the opposite parties resides or carries on business or has a branch office or personally works for gain etc. So, application is deemed to be filed by invoking section 11 of the Act.

4.                Perusal of complaint reveals that OP vide allotment letter dated 8.5.2014 allotted the unit in question, subject to the terms and conditions of agreement and thereafter, complainant made payment of Rs.11,71,590/- through RTGS on 23.4.2014, 28.7.2014, 28.7.2014 and 27.11.2014, details whereof given in the complaint. So, virtually the complainant has admitted about the conditions mentioned in the allotment letter dated 8.5.2014. Terms of contract are certainly binding on the parties and nothing can be added or subtracted thereto. Even if the payment may have been made through RTGS from Ludhiana or the agreement may have been signed at Ludhiana, but despite that the terms and conditions of agreement are to be looked into for finding as to whether this Forum has territorial jurisdiction to entertain, try and adjudicate this complaint.

5.                Clause 10.5 of the Standard Terms and Conditions of the allotment of an apartment at Jaypee Greens Sports City East, Gautam Budh Nagar provides as under:-

“Governing Law and Jurisdiction:- The allotment shall be governed and interpreted by and construed in accordance with laws of India and subject to the provisions of Clause 10.8 hereof, the Courts at Gautam Budh Nagar, U.P., India shall have jurisdiction over all matters arising out of or relating to the allotment.”

6.                As this agreement was signed by the complainant and as such, he must have gone through this clause 10.5 of Standard Terms and conditions of allotment of apartment agreement for knowing as to within the territorial jurisdiction of which Forum, the matter can be taken up or the controversy can be raised. Clause 10.5 of Standard terms and conditions of the allotment letter clearly stipulates by referring to clause 10.8 thereof that the Courts at Gautam Budh Nagar, U.P. alone shall have jurisdiction of all matters arising out of or relating to the allotment. Controversy in this complaint is raised with respect to the matters arising out of or relating to the allotment of the unit concerned and as such in view of this exclusionary clause 10.5 of the terms and conditions of the agreement, there is no escape from the conclusion that the Courts at Gautam Budh Nagar, U.P. alone have jurisdiction to entertain the complaint in question, particularly when the controversy through this complaint raised with respect to the terms and conditions of the agreement, on the basis of which, allotment letter dated 8.5.2014 was issued by Op in favour of the complainant on payment of the amounts mentioned in the complaint. After going through the complaint as a whole, it is made out that as per case of complainant, despite payment made by him of the amounts specified in the complaint, OP not delivering the possession of the apartment after raising construction and nor returning the amounts deposited by the complainant with interest. So, virtually the controversy raised is with respect to the matters arising out of or relating to the allotment.

7.                Counsel for the complainant places reliance on law laid down in case of Iqbal Singh Chalana vs. M/s Cadmach Machinery Company Private Limited and another-1996(2)CPC-613(Hon’ble State Consumer Disputes Redressal Commission, Haryana, Chandigarh) for arguing that if on the bills, it is mentioned that settlement of dispute will be at Delhi or Ahmedabad, but despite that jurisdiction of the Forum in Haryana not excluded because question of territorial jurisdiction can be decided only on the basis of evidence to be produced by the parties. After going through para no.4 of this cited case, it is made out that on the bills issued with respect to the supply/purchase of the goods, it was mentioned that jurisdiction for settlement of the dispute between the parties is at Delhi or Ahmedabad, but despite that it was held that the same does not necessarily exclude the jurisdiction of other courts and tribunal, especially when there is no express exclusion clause mentioned therein. So, ratio of this case lay that in case, there is express exclusion clause contained in the agreement for limiting the jurisdiction of the Forums or tribunal of particular city/station, then the position will be different. In case before us, clause 10.5 of agreement specifically excludes jurisdiction of all courts except the Courts at Gautam Budh Nagar, (U.P.)(India) and as such, in view of the exclusionary clause conferring jurisdiction on Courts situate in Gautam Budh Nagar, (U.P.)(India), benefit from ratio of above cited case not available to the counsel for complainant, particularly when the present is not a case, in which, expression of conferring jurisdiction on particular courts not endorsed through bills, but through agreement signed by both the parties. Law laid down by the Hon’ble Supreme Court of India is law of land in view of article 141 of the Constitution of India and as such, also benefit from ratio of above cited case cannot be gained by the complainant, particularly when the Hon’ble Supreme Court of India, in case titled as Swastik Gases P.Ltd vs. Indian Oil Corporation Ltd-2013(9)SCC-32 has specifically held that where contract specifies jurisdiction of Courts at particular place, then Courts/Forums/Tribunals of the particular specified place alone will have jurisdiction. After going through para no.11 of this cited case decided by the Hon’ble Supreme Court of India, it is made out that as per clause 18 of the agreement forming the subject matter of that case, the agreement incorporated the term as if the same will be subject to jurisdiction of Courts at Kolkata. Same is the position in the case before us because clause 10.5 of the agreement in question of case in hand specifically provides that Courts at Gautam Budh Nagar (U.P.)(India) will have jurisdiction to decide the dispute arising out of the terms of the agreement. So, facts of the case before us are identical to the facts of the case of Swastik Gases P.Ltd vs. Indian Oil Corporation Ltd(Supra). In this reported case of Swastik Cases P.Ltd, it was found that part of cause of action arose in Kolkata and part in Jaipur, but in view of clause 18 of the agreement, it was held that Courts at Kolkata alone will have territorial jurisdiction because of the contract specifying the jurisdiction of Courts at particular place. So, even if Courts at Ludhiana may be having jurisdiction due to accrual of cause of action, but despite that in view of exclusionary clause 10.5 of Standard Terms and conditions of allotment, Courts at Gautam Budh Nagar alone will have jurisdiction to decide the controversy in question, particularly when apartment allotted to the complainant also situate in Gautam Budh Nagar. Name of that apartment specifically disclosed as Tower B03 at Jaypee Green, Sports City East, Gautam Budh Nagar in the complaint itself. Moreover, office of OP is situated in Noida(Uttar Pradesh) and as such, in view of exclusionary clause, Forum at Gautam Budh Nagar alone have jurisdiction.

8.                Even Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in case titled as M/s Taneja Developers & Infrastructure Limited through its Directors vs. Gurpreet Singh and another held through its decision dated 25.2.2016 rendered in First Appeal No.33 of 2014 and First Appeal No.126 of 2014  that in case, the parties agree that venue of the arbitration shall be at Mohali and subject to the exclusive jurisdiction of Mohali Courts only, then the dispute can be raised before the Forum at Mohali only. Therefore, Hon’ble National Consumer Disputes Redressal Commission, New Delhi returned the complaint to the complainant for filing the same before appropriate Forum after finding that Hon’ble State Consumer Disputes Redressal Commission, U.T.Chandigarh has no jurisdiction in view of clause 38 of Floor Buyer Agreement of that case. Same is the position in the case before us as discussed above. Return of the complaint for presentation before the competent District Forum at Meerut also was ordered in case titled as Jaswant Singh(Subedar) and another vs. Meerut Development Authority and another-decided on 29.7.2015 by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, the internet print whereof produced on record during arguments.

9.                As a sequel of the above discussion, we have no hesitation in holding that as Courts at Gautam Budh Nagar, (U.P.)(India) alone have exclusive jurisdiction as per the terms and conditions of agreement and as such, this Forum has no territorial jurisdiction. Being so, complaint liable to be returned to the complainant with the observations that he should present the same before the proper Forum having jurisdiction. So ordered accordingly. Copies of order be supplied to the parties free        of costs as per rules. File be indexed and consigned to record room.

 

(Param Jit Singh Bewli)                               (G.K.Dhir)

      Member                                                    President

Announced in Open Forum

Dated:02.06.2017

Gurpreet Sharma.