Delay of 34 days in filing the appeal is condoned. -2- Complainant/appellant booked a flat in Atharva, an upcoming project of the respondent in Gurgaon and paid Rs.4,65,075/- as part consideration out of total consideration of Rs.46,50,750/-. Respondent allotted flat No.E-402 admeasuring 1755 sq. super area on 4th floor, Atharva, Gurgaon, Haryana vide Buyer’s Agreement dated 19.09.2008 executed between the parties. According to the appellant, at the time of booking respondent had assured him that the respondent shall facilitate the complainant/appellant for finance of the amount for payment of residual consideration. Vide letter dated 05.01.2009 respondent furnished a list of financial Institutions which were willing to finance the customers for purchase of the flats in the respondent’s project. Appellant approached those financial Institutions. Suggested financers did not extend the facility of finance to the appellant. Ultimately, appellant approached his own bank, i.e., Bank of Baroda which was prepared to advance loan to the complainant provided a tripartite agreement was executed amongst the appellant, the respondent/opposite party and the Bank which the respondent declined. Since the appellant had not paid the balance -3- amount, respondent cancelled the allotment and forfeited the advance amount of Rs.4,65,075/- paid by the appellant. Being aggrieved appellant filed the complaint before the State Commission seeking a direction to the respondent to allot the booked flat and adequately compensate him for the mental harassment caused to him. Respondent on being served put in appearance and took the preliminary objection that the court in Delhi did not have jurisdiction to entertain the complaint in view of Clause 16.2 of Buyer’s Agreement which is reproduced below: “that the Civil Courts of Gurgaon alone and the Hon’ble Punjab and Haryana High Court of Chandigarh alone shall have the jurisdiction, in all matters, arising out of/touching and /or concerning the application and/or this flat Buyer’s A and/or Conveyance Deed.” It is admitted case of the parties that Head Office of the respondent is situated in Delhi. Buyer’s Agreement between the parties was executed in Delhi. Appellant had made the payments to the respondent in Delhi. As per Section 11 (2) (b) of Consumer Protection Act, 1986 a complaint can be instituted at any place where -4- the opposite party resides or part of cause of action arose. State Commission relying upon Clause 16.2 of the Agreement came to the conclusion that it did not have the jurisdiction to try the complaint; that the complaint could be filed in the Civil Courts at Gurgaon alone. The State Commission returned the complaint to the appellant for presentation before an appropriate forum in the State of Haryana. Appellant being aggrieved has filed the present appeal. Counsel for the appellant relying upon two decisions/judgments of this Commission in “Neha Singhal vs. M/s Unitech Limited, II (2011) CPJ 88 (NC)” and “First Appeal No.360/2011 Piya Maini vs. M/s Unitech Ltd. (decided on 12.07.2012) contends that the order of the State Commission runs counter to the decisions of this Commission in these judgments. We find substance in this submission. In Neha Singhal & Anr. Vs. M/s Unitech Ltd. – F.A.426/2010 dated 18.2.2011, this Commission 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. -5- 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 9th February 2011, based on the decision dated 11th 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 emphasize, 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 8th January 1997).” This judgment was followed by this Commission in Piya Maini’s case (supra). Respectfully following the earlier judgments of this Commission in the aforesaid cases we set aside the order passed by the State Commission, remit the complaint to the State Commission to decide it afresh in accordance with law. Parties through their counsel are directed to appear before the State Commission on 01.11.2012. | 
