Complainant/appellant booked an apartment with the respondent builder and deposited an amount of Rs.60,93,900/- in March 2007.  Since till March 2009 no construction work had been started, appellant asked the respondent to refund the amount.  The amount was not refunded.  Being aggrieved, appellant filed complaint before the State Commission.

State Commission, Delhi refused to entertain the complaint on the ground that as per the agreement between the parties only the Courts at Gautam Budh Nagar had the jurisdiction to decide the disputes between the parties.  The complaint was dismissed relying upon a judgement of the Supreme Court in ABC Laminart Pvt. Ltd. & Anr. Vs. A.P. Agencies – Salem AIR 1989 SC 1239.

Appellant, being aggrieved, has filed the present appeal.

        Learned counsel, relying upon a judgement of a three-Member Bench of this Commission, wherein it has been held that the State Commission has erred in relying upon the judgement of the Supreme Court as the same was not applicable to the consumer disputes.  He further relies upon a recent decision of this Commission in Neha Singhal & Anr. Vs. M/s Unitech Ltd. – F.A.426/2010 dated 18.2.2011, wherein this Commission, setting aside a similar order passed by the State Commission almost on identical facts, in which respondent was a party has held as under :

“3.     Thus, the State Commission proceeded to dismiss the complaint in limine entirely on the ground of its territorial jurisdiction citing the provision of a specific clause relating to this issue in this agreement between the parties.

In a similar case (FA No. 425 of 2010 – Munish Sahgal vs DLF Home Developers Limited), the State Commission had taken the same view. The above-mentioned appeal was allowed by this Commission, vide order dated 9^th February 2011, based on the decision dated 11^th April 2002 of a 3 – Member Bench of this Commission in FA No. 142 of 2001 (Smt Shanti vs M/s. Ansal Housing and Construction Ltd.) The only point of some relevance in this case is that the housing property in question is located in NOIDA, Gautam Buddha Nagar, Uttar Pradesh. However, that fact alone cannot suffice to oust the territorial jurisdiction of the (Delhi) State Commission to adjudicate upon the complaint, in view of the specific provisions of section 11 (2) (b) of the Consumer Protection Act, 1986 (‘the Act’). To emphasise, the clause relating to jurisdiction of “courts” in the agreement between the parties cannot by itself over-ride the statutory right of the appellant/ complainant conferred by the above-mentioned provision of the Act – that would defeat the purpose and object of the Act. This view is also in accord with the provisions of section 28 of the Indian Contract Act, 1872 (as amended with effect from 8^th January 1997).”

        We find substance in the submission made by the counsel for the appellant.  This Commission, in Smt. Shanti vs. M/s Ansal Housing & Construction Ltd. – F.A. No.142/2001 decided on 11.4.2002 has held that the judgement in ABC Laminart Pvt. Ltd. (supra) relied upon by the State Commission was not applicable to the disputes under the Consumer Protection Act.  Similarly, this Commission in Neha Singhal’s case (supra), to which the respondent was a party, considered the same very clause and held that the State Commission had erred in taking the view that the Delhi Commission/courts would not have the jurisdiction and the Court in Gautam Budh Nagar only would have the jurisdiction to entertain the complaints.  Judgement in Neha Singhal’s case (supra) is on all fours.

        Respectfully following the earlier judgement of this Commission in Neha Singhal’s case, we set aside the order passed by the State Commission and remit the complaint to the State Commission to decide it afresh in accordance with law.

        Parties are directed to appear before the State Commission on 23.8.2012.

        Sum of Rs.25,000/- deposited by the appellant at the time of filing the appeal be refunded to the appellant.