KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD THIRUVANANTHAPURAM FA.230/08 JUDGMENT DATED 5.8.09 PRESENT SRI.M.V.VISWANATHAN -- JUDICIAL MEMBER SRI.S.CHANDRAMOHAN NAIR -- MEMBER Smt.Jaseela D/0 Mohammed Kunhi (Late)) Residing at Muneer Manzil, -- APPELLANT Pakyara Udam.P.O. Kasargod. (By Adv.G.S.Kalkura) Vs. M/s PVS Auto Motive Co-operative Ltd. Meenchanda, Kozhikode-673018. (By Adv.Shyam Padman) -- RESPONDENT JUDGMENT SRI.M.V.VISWANATHAN,JUDICIAL MEMBER The appellant in this appeal is the complainant in CC No.1/08 on the file of CDRF, Kasaragod. The said complaint was filed claiming compensation of Rs.1 lakh on the ground of deficiency in service on the part of the opposite party therein in delivering the car which was booked by the complainant with the opposite party as dealer of the said car. The opposite party entered appearance and filed written version. They contended inter alia that the forum below lacks territorial jurisdiction to entertain the complaint in CC.1/08, as the opposite party has no office or branch within the territorial limits of the CDRF, Kasaragod that the opposite party does not personally works for gain within the local limits of CDRF, Kasaragod. It is also contended that no cause of action or part thereof has arisen within the territorial jurisdiction of the CDRF, Kasaragod. The Forum below considered the preliminary issue regarding the maintainability of the complaint. After hearing both parties, the forum below passed the impugned order finding that the forum below lacks territorial jurisdiction to try the complaint and therefore the complaint is returned to the complainant for filing the same before the proper forum having jurisdiction. The complainant has also given the benefit under Section 14 of the Limitation Act to get the period spent in prosecuting the proceedings before the forum below excluded. Aggrieved by the said impugned order dated 9th July 2008 passed by CDRF, Kasaragod in CC.No.1/08 the present appeal is filed by the complainant therein. 2. We heard both sides. The learned counsel for the appellant/complainant submitted his arguments based on the grounds urged in the memorandum of the present appeal. He much relied on the order booking application placed by the complainant with acknowledgement dated 19.3.07 which was produced along with complaint in CC.1/08 and argued for the position that the booking of the car Was made at Kasaragod and the same was accepted by the executive of the opposite party and that part of the cause of action has arisen within the territorial jurisdiction of CDRF, Kasaragod. He also cited the decisions rendered by the Hon. National Commission in Shakumbhri Exports Vs.Leif Heegh and Company and Ors II (20004)CPJ 28 (NC) and in Joad Manufacturers Vs.Jagrut Nagrik and Anr. I (2009) CPJ 207 (NC) that of the decisions rendered by Orissa State Commission and Delhi State Commission reported in IV (2008) CPJ 270 and II (2009) CPJ 231 respectively. The learned counsel for the appellant has also relied on the decisions rendered by the Hon.Supreme Court in Lekshman Prasad Vs. Prodigy Electronics and another reported in 2008 (2) KLT supplemental 340 (SC) = (2008) 1 SCC 618. Based on the aforesaid decisions, it is submitted that the district forum within whose territorial jurisdiction the offer regarding supply of the car was accepted has got territorial jurisdiction to entertain the consumer dispute with respect to the supply of the car. It is also submitted that the District Forum, Kasaragod in whose territorial jurisdiction the booking of the car had taken place will be having the territorial jurisdiction to entertain the complaint preferred by the consumer. The learned counsel for the appellant vehemently argued for the position that part of the cause of action has arisen within the territorial jurisdiction of the Forum below (CDRF, Kasaragod) and so the complaint in cc.1/08 can be entertained by the Forum below by invoking the Section 11 (2 C) of the Consumer Protection Act, 1986. He also drew our attention to the similar position available in Section 20 ( C) of the CPC (Civil Procedure Code). Thus, the appellant/complainant prayed for setting aside the impugned order passed by the forum below and to remand the case to the forum below for disposal of the same on merits. 3. On the other hand, the learned counsel for the respondent/opposite party supported the impugned order passed by the Forum below. He relied on the decisions referred to in the impugned order and considered by the forum below while passing the impugned order dated 9.7.08. The learned counsel for the respondent/opposite party has also drawn our attention to the decisions reported in AIR 1923 Lahore 427, AIR 1929 Madras 347 and AIR 1956 Travancore-Cohin 200 and argued for the position that the respondent/opposite party is not carrying on any business within the territorial jurisdiction of the Forum below and that no part of the cause of action has arisen within the territorial jurisdiction of the Forum below. It is submitted that the executive of the opposite party has only collected the order forms and forwarded the same to the opposite party’s business place at Kozhikode and the offer was accepted at Kozhikode and so no cause of action has arisen at Kasaragod. Thus, the respondent requested to confirm the impugned order passed by the Forum below and to dismiss the present appeal. 4. The Points that arise for consideration are as follows:- 1. Whether the forum below (CDRF, Kasaragod) is having the territorial jurisdiction to entertain the complaint in CC.1/08 which was filed by the appellant as complainant before CDRF, Kasaragod? 2. Whether the forum below can be justified in finding that it lacks territorial jurisdiction to try the complaint in CC.1/08? 3. Is there any legally sustainable ground to interfere with the impugned order dated 9.7.08 passed by the CDRF, Kasaragod in cc No.1/08? 5. POINTS 1 TO 3:- The complainant Smt. Jaseela.C.M, booked one Ford Fiesta Car with the opposite party M/s.P.V.S.Automotive Company Pvt. Ltd. The order for the said car was placed on 19.3.07. Admittedly, the opposite party is the authorized dealer of Ford Fiesta Car. The aforesaid order was placed on 19.3.07 and it was received by the dealer’s executive Mr.P.V.Sreejith, the dealer executive of the opposite party. Along with the said order a D.D for Rs.2 lakhs drawn on Syndicate Bank was also given to the dealer executive and he received the same on 19.3.07 itself. The aforesaid D.D. for Rs.2 lakhs was drawn on Syndicate Bank, Kasaragod. The order booking form submitted to the dealer executive on 19.3.07 at Kasaragod was acknowledged by the dealer executive Sreejith.P.V. on 19.3.07 at Kasaragod. He also signed the said order form acknowledging the same. The complainant has produced the aforesaid order booking form with acknowledgment issued by the dealer executive to the complainant. The very same executive accepted another cheque for Rs.2 lakhs drawn on Syndicate Bank on 20.3.07. The aforesaid acknowledgement would also show that the complainant obtained another DD drawn on Syndicate Bank for Rs.2,50,000/- and the same was also accepted on 20.3.07. The acceptance of a total of Rs.6,50,000/- by way of 3 demand drafts drawn on Syndicate Bank, Kasaragod is not in dispute. 6. The case of the opposite party is that the executive Mr.P.V.Sreejith was working only as a temporally sales promoting executive and he had no authority to take any orders; that the orders have to be placed with any one of the offices of the opposite party with requisite amount by way of demand draft etc. But the opposite party has not produced any document to show the terms and conditions of the appellant with their dealer executive Mr.P.V.Sreejith. The opposite party has also not produced the direction given to their dealer executive regarding the nature of his job or regarding the direction given to the executive with respect to acceptance of the booking orders. In the absence of any such document we can only rely on the order booking form duly filled and placed by the complainant and accepted by the dealer executive Sreejith.P.V. The way in which the order booking form was acknowledged by the dealer executive would make it clear that the said order booking form was duly received by the dealer executive. It would also show that the DD was also accepted by the dealer executive on behalf of the dealer P.V.S.Automotive Company Pvt.Ltd (the opposite party). It is specifically stated in the order booking form that it was offered at Kasaragod. The D.Ds drawn on Syndicate bank, Kasaragod were also accepted at Kasaragod. There is no case for the opposite party that at any time the complainant came to the opposite party at Kozhikode for the purpose of booking Fiesta 1.5 diesel car. On the other hand, the order booking form issued by the opposite party would make it abundantly clear that the order booking form was accepted by the opposite party through their dealer executive. It would also show that the entire consideration for the said Fiesta Car was also accepted by the opposite party by way of 3 demand drafts drawn on Syndicate Bank on three different dates ie; on 19.3.07, 20.3.07 and 23.3.07. Then, it is for the opposite party to establish that the dealer executive Sreejith was not authorized to accept the order booking form or accept payment. 7. The opposite party at Para 3 of their written version, it is categorically stated that “the said vehicle 1.4 ZX1 diesel white car was delivered against the order No.108 dated 21.3.07 on 4.4.07”. The aforesaid admission in the written version would make it clear that the opposite party placed their order for the said car before the manufacturer vide order No.108 dated 21.3.07 and that the manufacturer delivered the car against the said order on 4.4.07. This would make it abundantly clear that on 21.3.07 the opposite party had accepted the booking of the car by the complainant. At any rate, the acceptance of the offer was effected on or before 21.3.07. The order booking form dated 19.3.07 would show that the complainant paid another sum of Rs.2 lakhs by way of DD dated 20.3.07 and payment of Rs.2,50,000/- on 23.3.07 by way of DD drawn on Syndicate Bank, Kasaragod. He 3rd DD was accepted at Kasaragod on 23.3.07. This would give a clear indication that the 3rd demand draft was accepted from Kasaragod on 23.3.07 and prior to that opposite party had accepted the order dated 19.3.07 placed by the complainant. The acceptance of Rs.2,50,000/- by way of DD on 23.3.07 from Kasaragod would make it clear that the said acceptance of Rs.2,50,000/- was made after acceptance of the offer made by the complainant. This action on the part of the opposite party would make it crystal clear that part of the cause of action has arisen at Kasaragod. The manner in which the dealer executive of the opposite party performed his duty would show that he was authorized to accept the order booking forms and he was also authorized to receive the payments effected by way of demand drafts. The acknowledgement issued by the dealer executive would also make it clear that he was authorized to issue the acknowledgement for acceptance of the order booking form and also for acceptance of demand drafts. Admittedly, the opposite party accepted the order booking form from the complainant on 19.3.07 and the said acceptance was from Kasaragod through their dealer executive Sreejith.P.V, that the opposite party has also accepted the 3 demand drafts on 3 various dates thereby accepted the entire cost of the said vehicle amounting to Rs.6,50,000/- The aforesaid demand drafts were also accepted from Kasaragod through their dealer executive Sreejith P.V. It is also to be noted that the opposite party acted upon the aforesaid order booking form and the demand drafts submitted by the complainant through the dealer executive of the opposite party. The above admitted facts would make it abundantly clear that part of the cause of action has arisen within the territorial jurisdiction of the district forum, Kasaragod. Therefore the ingredients for Section 11 (2) (C) of the Consumer Protection Act regarding territorial jurisdiction have been fulfilled. The Forum below cannot be justified in holding that it lacks territorial jurisdiction to try the complaint in CC No.1/08. 8. The forum below has relied on the decisions rendered by the Hon. National Commission reported in 1 (1995)CPJ 36 (NC), 1 (1995)CPJ 235 (NC), 1 (2001)CPJ 21 (NC), III (2001) CPJ 37 (NC), and that of the decision of the Bihar State Commission reported in III (2001)CPJ 268. The propositions enunciated by the Hon. National Commission in those reported decisions (supra) have no application as far as the present case on hand is concerned. In the case reported in I (1995)CPJ 36 (NC) it has been held that mere purchase of the bank’s Demand Draft by the complainant from a particular place would not confer jurisdiction to the District Forum of the place where the demand draft was drawn. It is to be noted that in the said reported case the demand draft was drawn towards the purchase of a Motor car and it was drawn on the banks branch at Pune, and was payable only at Pune. In such a situation it was held that the mere drawing of the demand draft from a bank in Ahemed Nagar would not create any cause of action for the complaint to be filed at Ahemed Nagar. It has been held that the District Forum, Ahemed Nagar had no territorial jurisdiction as no part of the cause of action has arisen within the territorial jurisdiction of the District Forum, Ahemed Nagar. But, in the present case on hand the order form was submitted to the dealer executive of the opposite party/dealer at Kasaragod and the same was accepted by the dealer executive from Kasaragod itself. In addition to that the dealer executive accepted the entire consideration for the said car by way of 3 Demand Drafts and those demand drafts were also accepted from Kasaragod. So, the aforesaid reported decision can be distinguished from the facts of the present case on hand. 9. In the second case referred to and reported in 1 (1995)CPJ 235 (NC) a bank at Delhi accepted the earnest money deposited by the complainant/consumer for taking part in a bid for a flat from Huda at Faridabad. The bank only received the earnest money of Rs.2,889/- in cash from the complainant and remitted it to the Estate Officer, Huda, Faridabad. The bank at New Delhi had no role to play, but acted only as an agent of the complainant in receiving the earnest money. In such a situation, it was held that acceptance of the earnest money by the bank at Delhi was a facility, which was provided, but the payment of the earnest money had to be remitted to the Estate Officer, Faridabad either directly by the applicant or through the authorized banks. But, in the present case on hand the dealer executive of the opposite party himself acted on behalf of the opposite party. The action of the dealer executive in accepting the order booking form and in accepting the demand drafts and issuing acknowledgement for the same would amount to the actions of the opposite party itself. The aforesaid actions on the part of the dealer executive of the opposite party cannot be treated as an act on behalf of the complainant/consumer. At any rate, the dealer executive cannot be treated as an agent of the complainant. Admittedly, the dealer executive was the authorized agent of the opposite party. So, the aforesaid decision (supra) has no application in the facts and circumstances of the present case. 10. The decision reported in III (2001)CPJ 37 (NC) has laid the dictum that mere posting of a letter cannot call for jurisdiction at a place where the letter is posted. In the said reported case the complainant sent a registered post from a place known as Kamrup in Guwahati requesting the opposite party at Bangalore to process the films which were forwarded to the opposite party at Bangalore. The complainant did not get back those films. Then he filed the complaint before the District Forum, Guwahati. In such a situation, it was held that the District Forum at Guwahati had no territorial jurisdiction because of mere posting of the request letter at the post office situated with the territorial jurisdiction of the District Forum, Guwahati. The facts of the said case are entirely different from the present case. 11. The decision of the Hon. National Commission reported in 1 (2001) CPJ 21 (NC) would show that mere deposit of earnest money with a bank in a particular area cannot be taken as a ground to hold that the some redressal agency in that area will be having the territorial jurisdiction in the matter of allotment of a flat which is located in an entirely different area. The earnest money was deposited to take part in a bid to be conducted at Gaziabad where the development authority is situated. The complainant/consumer was not a successful bidder in the said bid, which took place at Gaziabad. The complainant preferred the complaint at Chandigar on where he deposited the earnest money. In such a circumstance, it was held that mere deposit of earnest money in the bank at Chandigarh couldn’t be taken as a ground to hold that District Forum, Chandigarh has the jurisdiction to entertain the Consumer complaint filed against the GDA authority. The facts of the said reported case are entirely different from the present case under consideration. 12. The Bihar State Commission considered the territorial jurisdiction to entertain the complaint filed before the District Forum, Rohtas. The complainant therein was residing at Bahuva within the territorial jurisdiction of District Forum, Rohtas. The complainant had booked a Car with the dealer at Patna. The car payment was made at Patna, the car was delivered at Patna. There occurred a consumer complaint regarding the purchase of the said car. The complainant filed the consumer complaint before the District Forum, Rohtas, On the ground that the opposite party marketed the said Car at Bahuva and so District Forum at Rohtas has the jurisdiction. It has been held that no part of the cause of action has arisen at Bahuva. It has also been held that mere drawing of a bank draft from Bahuva would not constitute cause of action at the place where the bank is located. It is further held that the bank draft was drawn in favour of the dealer at Patna and the same is to be encashed at Patna. In the aforesaid case (supra) the order booking form was placed at Patna, the car was also delivered at Patna and payment was also made at Patna. But, in the present case on hand, the order booking form was accepted at Kasaragod and the payment by way of DD was also accepted at Kasaragod. So, the facts of the case reported in III (2001) CPJ 268 are entirely different from the present case. We have no hesitation to hold that the Forum below has gone wrong in relying on the aforesaid decisions for the purpose of holding that the Forum is not having territorial jurisdiction to entertain the complaint in CC.1/08. 13. The learned counsel for the respondent/opposite party relied on the decision rendered by High Court of Madras in J.D John and Others Vs. Oriental Govt. Security Life Assurance Co. Ltd. (AIR 1929 Madras 347) and submitted that the provisions of Section 20 of CPC are almost similar to Section 11 (2 ) of the Consumer Protection Act, 1986. By relying on the aforesaid decisions, it is submitted that mere forwarding of proposals and collection of moneys by an agent can only be treated as an act of a post office. In the aforesaid reported case the Bombay based Life Assurance Company had an agency in Madras and the agency at Madras used to forward the proposals and also the money’s collected to the company at Bombay. The Agent had no control over the business of the Life Assurance Company located at Bombay. In such a situation, it was held that the agency in Madras had nothing to do with the carrying on business of the company at Bombay and that the agency in Madras had been acting as a Post Office for forwarding proposals and sending moneys and not having any discretion in the matter either to conclude contracts or vary them or enter into them. It is further held that the Life Assurance Company at Bombay did not carry on business at Madras through their agency in Madras. The aforesaid case reported in AIR 1929 Madras 347 was with respect to garnishee proceedings instituted by the decree holder against the life Assurance Company, Bombay as garnishee who owed money under a life policy to the deceased policy holder. The garnishee proceedings were initiated against the agency in Madras by treating Life Assurance company as doing business in Madras through its Agency at Madras. In the said garnishee proceedings, the Life Assurance Company, Bombay objected the proceedings by stating that the Company had no branch or business place at Madras and that the company does not carry on business in Madras and so the order passed against the garnishee cannot be up-held. In such a situation, the Hon. High Court of Madras has held that the agency in Madras was only acting as a post office forwarding and sending money on behalf of the Company at Bombay and that the agency in Madras was not having any discretion to conclude contracts or to accept the proposals or vary the contracts or enter into contracts on behalf of the principal company at Bombay. Thereby held that the Life Assurance Company, Bombay does not carry on business in Madras and so the courts in Madras have no jurisdiction to entertain the matter. It is to be noted that in the aforesaid reported case the Hon. High Court of Madras only considered the issue regarding carrying on business as contemplated in Section 20 of CPC. The Court had no occasion to consider the cause of action or part of the cause of action. In the present case we are concerned with the cause of action for the complaint. Whether any cause of action or part of the cause of action has arisen within the territorial jurisdiction of the CDRF, Kasaragod? It is also to be noted that the reported case was with respect to garnishee proceedings instituted by the decree holder in a suit. But, in the said case the Hon. High Court had the occasion to consider the decision in Bombay Company Ltd. Vs. Municipal Council, Dindigul and the judgment pronounced by his Lordship, Beasby.J. Referring to the said judgment the High Court of Madras has also considered the Judgment pronounced by the Chief Justice and Madhavan Nair.J in OS. Appeal No.6/1928. During the discussion the Hon. High Court has also considered the question regarding the cause of action and part of the cause of action. In the said discussion at page 348 (last portion of the penultimate Paragraph) it is stated as follows:- “But that suit may lie under Section 12 of the letters patent if the money is not paid. That may be so not on the ground that there is business carried on in Madras, but because the proposal was made in Madras and forwarded and part of the cause of action arose in Madras and on that ground leave may be given. I do not think we can confuse the fact of jurisdiction arising out of a part of the cause of action with jurisdiction arising out of the carrying on of business. Unfortunately, our rules do not provide for garnishee proceedings in cases where a part of the cause of the action arises in respect of a debt sought to be enforced by garnishee proceedings”. 14. The aforesaid discussion and the observation made by his Lordship Kumaraswami Sastri.J. would make it clear that territorial jurisdiction arising out of a part of the cause of action and territorial jurisdiction arising out of the carrying on of business are entirely different and distinct. The aforesaid discussions would also make it crystal clear that the aforesaid reported case being the garnishee proceedings the question of territorial jurisdiction arising out of a part of the cause of action does not arise. It would also make it further clear that in such a garnishee proceedings the concerned court is only expected to consider the question as to whether the garnishee Company has been carrying on business in that particular area namely, Madras. In effect the aforesaid reported decision in J.D. John and Ors. Vs. Oriental Government Security Life Assurance Company Ltd (AIR 1929 Madras 347) would only strengthen the case of the complainant that accepting a proposal to a contract would also form part of the cause of action, even if the proposal was accepted at the office of the company located in some other place. The case of the opposite party/dealer is that the order booking form placed by the complainant was only a proposal and the same was forwarded by their dealer executive to their business place at Kozhikode and the same was accepted only at Kozhikode and so the contract was concluded at Kozhikode and no part of the cause of action has arisen at Kasaragod where the proposal was submitted. But, the aforesaid decision rendered by the Hon. High Court, Madras and relied on by the respondent/opposite party would make it crystal clear that part of the cause of action has arisen at the place where the proposal was made. Then, as far as the present case is concerned, it can very safely be concluded that part of the cause of action has arisen within the territorial jurisdiction of CDRF, Kasaragod. 15. The learned counsel for the opposite party has also relied on the decision reported in AIR 1923 Lahor 427 and AIR 1956 TC 200 and canvassed for the position that the business canvassed by the opposite party through their agent at Kasaragod will not make any cause of action for filing the complaint before CDRF, Kasaragod. In the aforesaid decisions (supra) the agent of the principal had no power to enter into contracts or to receive money on behalf of the principal. In those decisions, the agent acted only as a collection agent. He had no control over the transactions. It was held by the Courts that a Company can be held as carrying on business through an agent only if the agent is having the power to conclude contracts on his own initiative on behalf of his principal company or firm. If he is only acting as a collection agent, He can only be treated as an agent who is mere a post office for bringing about contracts. In such a situation it was held that the agent of a Company/Firm can only be considered as a collection agent acting as a mere post office and the actions of such an agent would not amount to carrying on business by the principal company/firm. Moreover, in those reported cases (supra) the above courts had only considered the issue regarding carrying on business through out station Agent of a company or firm. There was no occasion to consider the issue of territorial jurisdiction arising out a cause of action or part of the cause of action. But, in the case on hand the dealer executive of the respondent/opposite party actually accepted the order forms. He also accepted the demand drafts on behalf of the opposite party. In effect by accepting the order form the dealer executive of the opposite party concluded the contract. It is also to be noted that the opposite party/company acted on the basis of the actions and deeds of the dealer executive. In other words, the actions of the dealer executive were ratified by the opposite party. Thus, in all respects, the dealer executive in the present case can be treated as an agent empowered and authorized to carry on business for the opposite party/company. At any rate, the actions of the dealer executive will constitute part of the cause of action for the complaint within the territorial jurisdiction of the CDRF, Kasaragod. The Forum below can very well entertain the complaint based on the said cause of action or part of the cause of action. Thus, in all respects, the District Forum, Kasaragod is having the territorial jurisdiction to entertain the complaint in CC 1/08. The Forum below cannot be justified in holding that it is not having the territorial jurisdiction to entertain the complaint in CC 1/08. The impugned order passed by the Forum below is liable to be set aside. Hence we do so. These points are answered accordingly. In the result, the appeal is allowed. The impugned order dated 9.7.08 passed by CDRF, Kasaragod in CC 1/08 is set aside. The matter is remitted back to the forum for disposal of the complaint in CC 1/08 on merits. The parties are directed to appear before the Forum below on 14.9.09. There will be no order as to costs. M.V.VISWANATHAN -- JUDICIAL MEMBER S.CHANDRAMOHAN NAIR -- MEMBER
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