Delhi

East Delhi

CC/245/2018

PRONITA SHEKHAR - Complainant(s)

Versus

RAJEEV SHANKER TIWARI - Opp.Party(s)

06 May 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. NO. 245/18

 

Ms. Pranita Shekhar

D/o Shri B.K. Singh

R/o 149, Ishvatam, Yamaha Vihar

Sector-49, Noida

G.B. nagar,

Uttar Pradesh 201304                                                                ….Complainant

Vs.     

 

1. Shri Rajeev Shanker Tiwari

Proprietor – Pyramid Propmart

R/o D-89, Sector-2

Noida, G.B. Nagar

UP – 201 301

 

2. Pyramid Propmart

Principal Office: 217, Chokhani Square

Sector-18, Noida, UP 201 301

Through its Proprietor                                                                     …Opponents

 

 

Date of Institution: 01.08.2018

Date of Order: 08.05.2019

 

CORUM:

Sh. Sukhdev Singh (President)

Dr. P.N. Tiwari (Member)

Ms. Harpreet Kaur Charya (Member)

 

Order By: Sh. Sukhdev Singh (President)

 

 

ORDER

            This complaint has been filed by Ms. Pranita Shekhar against       Shri Rajeev Shanker Tiwari (OP-1) and M/s. Pyramid Propmart (OP-2) under Section 12 of the Consumer Protection Act, 1986 with allegations of unfair trade practice and deficiency in service.

            The facts in brief are that complainant Ms. Pranita Shekhar booked a residential plot in the project ‘Pyramid Residency’ situated at Mauja Simrauthi, Gata No. 378, Yamuna Expressway, UP of M/s. Pyramid Propmart (OP) on 11.11.2012 by paying an amount of Rs. 90,000/-.  The total sale consideration of the said residential plot was Rs. 9,02,000/-.  The booking amount was paid through cheque no. 945472 dated 11.11.2012 drawn on Syndicate Bank.  They issued receipt of dated 18.11.2012.  She was allotted plot no. 6, Saraswati Block, Pyramid Residency, admeasuring 82 sq. yds.  Both the parties entered into an agreement dated 14.03.2013. 

OP issued demand notice dated 11.01.2013 and the payment was made through cheque no. 247607 dated 09.02.2013 for an amount of                Rs. 2,25,700/- against a receipt dated 22.02.2013. 

Another demand for an amount of Rs. 1,80,400/- was made.  They took the payment through cash against receipt dated 10.05.2013. 

Again on 11.10.2013, they issued another demand letter for an amount of Rs. 4,05,900/- against which payment was made through cheque no. 487201 dated 20.10.2013 drawn on Syndicate Bank against receipt dated 20.10.2013. 

Another demand for an amount of Rs. 73,800/- and Rs. 28,500/- was made vide letter dated 19.12.2013 against which payment of Rs. 73,800/- was made through cheque no. 487213 dated 19.12.2013 and Rs. 28,500/- towards stamp duty, registry charges and registry fees etc. in cash. 

            They executed Sale Deed in favour of complainant which was duly registered in the office of Sub-Registrar, Khair, Aligarh, UP on 19.12.2013.  They issued another letter of dated 17.05.2017 demanding payment of 50% of the total development charges of Rs. 73,800/- which was to be paid before possession.  The amount demanded by them was Rs. 36,900/- which was paid by the complainant vide cheque no. 980036 dated 24.06.2017.  The complainant realized that they have already made the payment of development charges as demanded through letter of dated 19.12.2013 for which oral request for refund was made which was accepted by OPs, but they did not refund the excess amount of Rs. 36,900/-.  Even they issued another letter of dated 20.01.2018 demanding payment of 50% of development charges i.e. Rs. 36,900/-.  They, through their letter of dated 17.05.2017 stated that possession of the plot would be handed over to the complainant by 30.06.2017 with proper demarcation and common amenities. 

            She was informed that the project was completed more than 70%.  Since the complainant did not get any information regarding taking over of possession from OPs, she followed up with OPs and on her persistence, they arranged a joint site visit on 17.03.2018.  The site visit was conducted by Shri Ram Chaudhary, AGM Sales & Marketing.  During this visit, it was noted that there was no development at the site and the plot land was absolutely bare.  They kept giving assurance regarding handing over the possession, but there had been no progress.

            The complainant was left with no option got issued a legal notice to OPs.  The complainant have stated that this Forum was having jurisdiction on the basis of Clause 11 of the agreement dated 14.03.2013 which states “All disputes arising out of or touching the instant agreement shall be settled in Delhi Jurisdiction only”

Since they have failed to hand over the possession within the stipulated period, the complainant have filed the present complaint with the prayer for directions to OPs to pay Rs. 10,78,000/- alongwith 18% interest from 01.01.2014 till 30.06.2018 and further from the date of filing till the date of realization; Rs. 2,00,000/- compensation towards mental agony and harassment and Rs. 50,000/- towards cost of litigation.

 

Heard on admission.

            We have heard Ld. Counsel for the complainant.  During the course of hearing, the short and the only point which have arisen in the complaint has been as to whether this Forum was having jurisdiction to entertain the complaint or not?  Ld. Counsel for the complainant have argued that since the parties  have conferred the jurisdiction by way of agreement, this Forum was having jurisdiction to entertain the complaint.

            He has drawn attention of the Forum to Clause 11 of the agreement, executed between Shri Rajeev Shanker Tiwari, Proprietor of M/s. Pyramid Propmart and Ms. Pranita Shekhar on 14.05.2013 which states “All disputes arising out of or touching the instant agreement shall be settled in Delhi Jurisdiction only”. 

            To substantiate his point, he has placed reliance on a judgement of Hon’ble Supreme Court in Swastik Gases Private Limited vs. Indian Oil Corporation Limited[1], where it has been laid down that when contract specifies jurisdiction of courts at a particular place and such courts have jurisdiction to deal with said matter, inferences that parties intended to exclude all other courts.   Counsel for complainant have vehemently argued that since the jurisdiction have been conferred on Delhi courts in the agreement, executed between the complainant and OP, the courts at Delhi were having jurisdiction to entertain the complaint. 

            The Hon’ble Supreme Court in Swastik Gases Private Limited (supra) have exhaustibly dealt with the issue of territorial jurisdiction and after making reference to a number of its own judgments and particularly to the judgements in A.B.C. Laminart (P) Ltd. Vs. A.P. Agencies[2] which was referred in the judgement of Inter Globe Aviation Ltd. Vs.                         N. Satchidanand[3] where it was stated that “Any clause which ousts the jurisdiction of all courts having jurisdiction and conferring jurisdiction on a court not otherwise having jurisdiction would be invalid.  It is now well settled that the parties cannot by agreement confer jurisdiction on a court which does not have jurisdiction; and that only where two or more courts have the jurisdiction to try a suit or proceeding, an agreement that the disputes shall be tried in one of such courts is not contrary to public policy.  The ouster of jurisdiction of some courts is permissible as long as the court on which exclusive jurisdiction is conferred, had jurisdiction.  If the clause had been made to apply only where a part of cause of action accrued in Delhi, it would have been valid. But as the clause provides that irrespective of the place of cause of action, only courts at Delhi would have jurisdiction, the said clause is invalid in law, having regard to the principle laid down in A.B.C. Laminart.  The fact that in this case, the place of embarkation happened to be Delhi, would not validate a clause, which is invalid”.

            The principle of law, laid down by the Hon’ble Supreme Court in Swastik Gases Private Limited (supra), both the courts should have jurisdiction to entertain the case and exclusion of jurisdiction of one of the court by way of agreement is valid.  However, where one of the court was not having jurisdiction to entertain a case, the conferment of jurisdiction on the said court will be invalid.

Touched on this principle, it has to be seen as to whether Delhi Courts have jurisdiction to entertain the complaint in view of the agreement executed between complainant Ms. Pranita Shekhar and Shri Rajeev Shanker Tiwari, Proprietor of M/s. Pyramid Propmart conferring the jurisdiction to Delhi Courts.  If this agreement is perused, it is noticed that this agreement has been executed between     M/s. Pyramid Propmart (OP) who is having its principal office at Noida and Ms. Pranita Shekhar of Yamaha Vihar, Sector-49, Barola, Noida.  The stamp paper on which this agreement has been executed is of UP. 

            Further, all the correspondence exchanged between the parties and the receipts for payment have been issued from their Noida office.  Even the Sale Deed have been executed in favour of the complainant which was duly registered with the Sub-Registrar, Khair, Aligarh, UP, as stated in Para 11 of the complaint. 

Thus, the averments made in the complaint and the documents placed on record do not suggest that Delhi Courts have jurisdiction to entertain the complaint.  Nothing has happened in Delhi to confer the jurisdiction.  When no part of cause of action have arisen in Delhi, the Delhi Courts have no jurisdiction to entertain the complaint.  Such conferment of power by way of agreement between the complainant and OP was invalid. 

Ld. Counsel for the complainant have misunderstood the principle of law, laid down by the Hon’ble Supreme Court in Swastik Gases Private Limited (supra).  Therefore, the arguments advanced on behalf of Ld. Counsel for the complainant that Delhi Courts have jurisdiction to entertain the complaint as Ms. Pranita Shekhar (complainant) and Shri Rajeev Shaker Tiwari, Proprietor of M/s. Pyramid Propmart (OP) have conferred the jurisdiction to Delhi Courts by way of agreement, cannot be entertained and the same stands rejected.

In view of the above, we are of the opinion that this forum have no jurisdiction to entertain the complaint.  Therefore, the complaint cannot be admitted and it stands rejected.  There is no order as to cost. 

Copy of the order be supplied to the parties as per rules.

            File be consigned to Record Room.

 

 

 

(DR. P.N. TIWARI)                                              (HARPREET KAUR CHARYA)

       Member                                                                             Member 

  

            (SUKHDEV SINGH)

                   President