Delhi

North East

CC/60/2018

M/s Procon India Pvt. Ltd. - Complainant(s)

Versus

M/s Vrinda Technologies Pvt. Ltd - Opp.Party(s)

07 Jan 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.60/18

 

In the matter of:

 

	M/s Procon India PVT. LTD, Through its Director Sanjay M. Laturkar, R.O. At- 17A/44,W.E.A., Gurudwara Road, Karol Bagh, New Delhi-110005	Complainant
	Versus
1.	M/s Vrinda Technoligies PVT. LTD. H.O. Plot No.282, Sector 7, I IMT Manesar, Gurgaon, 122050, Haryana (India)	Opposite Party

 

 

Date of Decision:-07.01.2019

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. The complainant has filed judgments in support of his contention of maintainability of complaint on ground of territorial jurisdiction as well as the transaction not being a commercial one before this Forum to buttress his arguments on the same.
2. The complainant has placed reliance upon judgment of Hon’ble Delhi High Court in the Writ Petition No. 11424/2016 & CM No. 44784/2016 titled Delhi State & District Consumer Courts Practitioner Welfare Association Vs Lieutenant Governor & Ors in which the Hon’ble Delhi High Court Vide order dated 01.02.2018 directed that districts Forums shall strictly abide by the principles laid down by the Hon’ble State Commission in their decisions passed in Holy Family Vs Amit Kumar, Singh Dental Hospital Vs Amrit Lal Dureja and Sardar Swaranjeet Singh Vs Anil Kumar Dixit passed in the year of 2007-2010 and argued that Delhi is a Union Territory and is one district.
3. We have heard the arguments addressed by the counsel of the complainant and have thoroughly perused the complaint as well as the written submissions alongwith the judgment compilation placed on record.

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.

4. The Hon’ble SCDRC in an iconic recent judgment dated 01.11.2017 in the case of Prem Joshi Vs Jurasik Park Inn passed in FA No. 488 of 2017 has dealt with similar issue of territorial jurisdiction in which the appellant had relied upon the same judgments passed by Hon’ble SCDRC in cases of Mahesh Ramnath Vs Secretary Cum-Commissioner Transport, Singhs Dental Hospital Vs Amrit Lal Dureja, Holy Family Hospital Vs Amit Kumar and Sardar Swaranjeet Singh Vs Anil Kumar Dixit. The Hon’ble State Commission 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.
5. The Hon’ble SCDRC in the said judgment had further observed that appellant in FA 216/12 namely Mahesh Ram Nath preferred Revision Petition in National Commission which was registered as No. 2816/2016. The said petition came up for hearing on 17.08.2012. National Commission called for report from President of Hon’ble State Commission as to whether there was any demarcation of territorial jurisdiction and if so whether the same being followed or not and if not for what reasons. 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 wholly 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.  
6. 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.
7. Subsequent to the judgment of Hon’ble Delhi High Court in Writ Petition no. 11424 of 2016 passed on 01.02.2018, the Hon’ble National Commission vide order dated 01.03.2018 in Revision Petition 575 of 2018 arising against the order dated 01.11.2017 in Appeal no. 488 of 2017 passed by Hon’ble SCDRC in Prem Joshi vs Jurasic Park Inn & Ors held that in terms of Section 11 of CPA a complaint can be instituted inter alia in a district Forum within the local limits of whose jurisdiction the cause of action only or in part arises and since in the present case the complainant booked the tickets for the amusement part of OP online from his office at Karol Bagh, the district Forum at Tis Hazari would have territorial jurisdiction as part cause of action arose under his jurisdiction as per Section 11 (2) (c) of CPA. The Hon’ble National Commission further 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. Cause of action has been defined by Hon’ble Apex Court in State of Madras Vs C.P. Agencies AIR 1960 SC 1309 to be taken as ‘every fact which if traversed, it would be necessary for the plaintiff to prove in order to support his right to the judgment of the  court ’. The expression “wholly or partly arises” means that some act on the part of defendant must be a cause of action.
8. In view of the latest settled proposition of law by Hon’ble NCDRC in the above mentioned Order pronounced in the Revision Petition no. 585 of 2018 passed in Prem Joshi vs Jurasik Park Inn case which has further clarified and strictly defined and broad lined the territorial jurisdiction within the meaning of section 11 (2) of Consumer Protection Act in the Revision Petition 585 of 2018 arising out of Appeal no. 488 of 2017 in Prem Joshi Case, the Hon’ble National Commission has left no room for doubt that the judgment is not per incurium since the matter was referred to Higher Commission and therefore the said judgment shall have binding effect on all district Foras as is founded on reasons and on consideration of issue of territorial jurisdiction. Lastly in view of the binding nature of this judgment passed by the Hon’ble National Commission, it has acquired the status of ratio decidendi and is not reduced to a mere obiter dicta.
9. Coming to the complaint before us 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 OP has its office at Gurgaon, Haryana and no cause of action wholly or partly has arisen within the territorial jurisdiction of this Forum anywhere as per the pleadings in the complaint as the complainant has himself admitted that the consideration amount towards the purchase order was also paid through bank transfer from ICICI Bank Karol Bagh, Delhi Branch which again is outside the territorial purview of this Forum and the subject machinery which is alleged to have been faulty / defective was installed by OP’s technical team at the complainant’s engineering site at Noida further ousting the territorial jurisdiction of this Forum.    
10. 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 in as much as it is 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 due to erroneous jurisdiction which does not accord or vest in this Forum power to entertain and adjudicate the present complaint.
11.  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.

Announced On 07.01.2019

 

(N.K. Sharma)      President

(Sonica Mehrotra )  Member