MS. NIPUR CHANDNA, MEMBER

ORDER

27.03.2023        

1.            The complainant has filed the present complaint against the OP under section 12           of Consumer Protection Act, 1986. The facts as alleged in the complaint are that        OP1 approached the complainant for allotment of shop in the Raheja Prestige         Mall @ Rs.6000 per sq. feet on ground floor. Being influenced by the lucrative             offer of OP1, the complainant invest in the project of the OP by paying a sum of        Rs.6,00,000/- against the booking amount for 500 sq. feets. It is alleged by the                complainant that he paid a sum   of Rs.6,00,000/- to OP1 in the presence of OP3            by way of cheque. It is further alleged that although the payment has been made          in March 2006, but OP1 issued the receipts in May 2007 acknowleding  the       receipt of the sum of Rs.6,00,000/-. It is further stated by the complainant that it        is agreed between the parties that  if OP failed to provide the allotment within                the period of 12 months from the date of receipt of the amount for whatsoever   reason the OP shall return the amount deposited by the complainant with interest   @ 9% p.a from the date of payment till the date of realization of the amount.

               It is further alleged by the complainant that OP failed to deliver the possession within the stipulated period as such OP is  liable to refund to the complainant   amount received by them i.e Rs6,00,000/- alongwith 9% interest. It is further            alleged that it came to the knowledge of complainant that OP1 had transferred its             interest by taking huge profit margin from OP2 and subsequently handed over the project to OP2 after conniving and enter into a settlement with OP2. After                getting this information the complainant approached OPs and requested them     to deliver the possession but the OP under one pretext or the other asked the          complainant to wait and further informed that the project is launching soon.       The complainant on regular interval communicated with the officials of OP    through telephone, letters and personal visits but no sincere efforts were made by                OPs to resolve the issue. It is further alleged by the complainant that non-           delivery of the shop within stipulated period by the OP and kept in abeyance for     a indefinite period amounts to deficiency in service on the part of the OP. Hence        this complaint.

3.            Notice of the complaint was sent to the all the OPs. All the OPs appeared filed    their respective WS and had taken the preliminary objection regarding the      maintainability of the present complaint before this Commission.

4.            The OP has strongly challenged the issue of jurisdiction, hence needs to be         decided first.

5.            Perusal of the record shows that OP1 had its office at Okhla Industrial Area        which does not fall within the territorial jurisdiction of this Commission. OP3           work for gain at Gurugram Haryana, this office of OP also does not fall within            the territorial jurisdiction of this Commission. The complainant invoked the    jurisdiction of this commission on the basis of address of OP2 i.e at GTB Nagar,    Delhi-09.

                As per Section 11 of the Consumer Protection Act, 1986 jurisdiction of the        District Forum is as under:

Jurisdiction of the District Forum; (1) subject to other provision of this Act, the District Forum shall have the jurisdiction to entertain complaints where the value of goods and services and compensation, if any, claim (does not exceed rupees twenty lakhs).

(2) a complaint shall be instituted in a District Forum within the local limit of whose jurisdiction –

(a) the opposite party or each of the opposite party where there are more than one, at the time of institution of the complaint actually and voluntarily resides, or (carries on business or has branch office), or personally work for gain or

(b) any of the opposite parties where there are more than one at the time of institution of complaint, actually and voluntarily resides, or (carries on business or has branch office), or personally work for gain, provided that in such cases either the permission of the District Forum is given or the opposite parties who do not reside, or (carry on business or has branch office), or personally work for gain, as the case may be acquiesce in such institution; or

(c) the cause of action wholly or in part arises.

6.         Section 11 of the Act, deals with jurisdiction of the District Forum. Subsection. (1)           of this legal provision deals with pecuniary jurisdiction. The subsection (2) of       section 11 deals with territorial jurisdiction. Clauses (a) and (b) of subsection         (2) of section 11 deal with territorial jurisdiction on the    ground of one or more of    opposite parties living, working for gain, carrying on business or having branch offices within the territorial jurisdiction of the District Forum to attract             jurisdiction of that District Forum. The clause (c) of     Sub Section. (2) pertains to            attracting jurisdiction of District Forum within territorial area of which the cause       of action has             wholly or partly has arisen.

In Sonic Surgical versus National Insurance Co. Ltd Civil Appeal No. 1560            of 2004 decided by Hon’ble Supreme Court on 20/10/2009, the following        observations were made:

“Ld.Counsel for the appellant submitted that the respondent-insurance company has a branch office at Chandigarh and hence under the amended Section 17 (2) t he complaint could have been filed in Chandigarh.  We regret, we cannot agree with the Ld.Counsel for the appellant. In our opinion, an interpretation has to be given to the amended Section 17(2) (b) of the Act, which does not lead to an absurd consequence.  If the contention of the Ld.Counsel for the appellant is accepted, it will mean that even if a cause of action has arisen in Ambala, then too the complainant can file a claim petition even in Tamil Nadu or Gauhati or anywhere in India where a branch office of the insurance company is situated.  We cannot agree with this contention.  It will lead to absurd consequences and lead to bench hunting.  In our opinion, the expression ‘branch office’ in the amended Section 17(2) would mean the branch office where the cause of action has arisen.  No doubt this would be departing from the plain and literal words of Section 17(2) (b) of the Act but such departure is sometimes necessary (as it is in this case) to avoid absurdity.  [vide G.P.Singh’s Principles of Statutory Interpretation, Ninth Edition, 2004 P. 79]

In the present case, since the cause of action arose at Ambala, the State Consumer Redressal Commission, Haryana alone will have jurisdiction to entertain the complaint.”

7.         In the light of the above case law and the legal position  discussed above. It is        amply clear that the complainant was required to file the complaint before the            District Forum within whose territorial jurisdiction the cause of action arose             coupled with the fact that head office/or  the branch office of the company in   question is also situated.

8.         Coming to the facts of the case the address of the OP1 and OP3 mentioned in the arrays  of parties is of Okhala Industrial Area Phase-I and Gurugram Haryana respectively which does not fall within the territorial  jurisdiction of this   Commission. Moreover, the complainant had impleaded M/s Prestige Associates      Pvt. Ltd. as a party but there is no privity of contract between the complainant and      OP2. It is submitted by OP2 in its WS that as per the collaboration agreement the OP1 was to launch booking after getting licence and plan sanctioned from the    concerned authority in respect of his share and OP2 is not liable for any           consequences or other claim of the prospective buyer of OP1. Hence the      complainant had impleaded OP2 in the arrays of parties for invoking the    jurisdiction of this commission. Hence neither the OP resides or          work for gain            within the territorial jurisdiction of this District Forum nor any part              of cause of     action accrued within the territorial jurisdiction of this District Commission.             Moreover, in the present complaint the cost of property in question is     Rs.30,00,000/- i.e beyond the pecuniary jurisdiction of this Commission of             Rs.20,00,000/- lakhs, hence this commission lacks pecuniary jurisdiction to          entertain and adjudicating the present complaint in terms of the judgment of          Hon’ble National Commission tilted Ambrish Kumar Shukla and Ors. Vs. Ferrous      Infrastructure Pvt. Ltd., Case no. 97 of 2016, decided by Hon’ble NCDRC on             07/10/2016 reported as Manu/CF/0499/16.

            In view of the above discussion, we hold that this District Commission has no  territorial as well as pecuniary jurisdiction to entertain and adjudicate the present c    omplaint.

Accordingly, the complaint be returned to the complainant along with    annexures/ documents by retaining a copy of the same for records with liberty to      file the same before the competent Forum as per the Law. The particulars in the  light of the judgement of Hon’ble NCDRC in the matter of Tushar Batra & Anr.  Vs. M/S Unitech Limited decided on 26/04/2017, Case no.-299 of 2014 are as  follows.

Date of presentation of complaint :-   11.09.2009

Date of return of complaint :-27.03.2023

Name of complainant :-SH. S.R BHASIN

          A copy each of this order each be sent to both parties free of cost by post. Orders be also sent to www.confonet.nic.in. File be consigned to record   room.

Pronounced on 27.03.2023

Sanjay Kumar                                                             Nipur Chandna

President                                                                               Member