RESERVED
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
UTTAR PRADESH, LUCKNOW
APPEAL NO. 919 OF 1999
(Against the judgment/order dated 08-03-1999 in Complaint
Case No.174/1997 of the District Consumer Forum, Bijnor)
M/s. Yadav Motors
187 Rithani
Delhi Road
Meerut
...Appellant/Opposite Party No.1
Vs.
01. Salim Ahmed
S/o Hasinuddin
R/o Mohallah Bhatan
Near Bhatan School
District Bijnore ...Respondent/Complainant
02. M/s. Bajaj Tempo Limited
Akurdi
Pune-411035
...Opposite party/Opposite Party No.2
BEFORE:
HON'BLE MR. JUSTICE VIRENDRA SINGH, PRESIDENT
HON'BLE MR. ASHOK KUMAR CHAUDHARY, MEMBER
HON'BLE MR. RAM CHARAN CHAUDHARY, MEMBER
For the Appellant : Sri Sarvesh Kumar Sharma, Advocate.
For the Respondent : Sri Anil Kumar Mishra, Advocate.
Dated : 11-11-2014
JUDGMENT
PER MR. JUSTICE VIRENDRA SINGH, PRESIDENT
This appeal has been filed by the appellant/opposite party against the judgment and order dated 08-03-1999 passed by the District Consumer Forum, Bijnore in Complaint Case No. 174/1997.
As per impugned order the opposite parties have been directed to pay a sum of Rs.1,15,637.32 alongwith 18% interest per annum with effect from 09-05-1996
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till the date of final payment and further a sum of Rs.1,500/- compensation towards mental tension and a sum of Rs.350/- towards litigation expenses have been ordered to be paid by the opposite parties to the complainant.
We have heard Sri Sarvesh Kumar Sharma, learned Counsel for the appellant and Sri Anil Kumar Mishra, learned Counsel for the respondent.
It is contended on behalf of the appellant/opposite party that there was no territorial jurisdiction of the District Consumer Forum, Bijnor pertaining to the facts in dispute in between the parties as the entire agreement and transaction allegedly relied upon by the District Consumer Forum in the impugned judgment/order, took place in Meerut and the case had been instituted at Bijnor instead of Meerut and, therefore, the judgment is erroneous, non judice and lacks enforcement as per law laid down by Hon'ble Supreme Court in the case of Sonic Surgical V/s National Insurance Company Limited reported in (2010) 1 SCC at page 135 and Jagmittar Sain Bhagat V/s Health Services Haryana reported in (2013) 10 SCC at page 136. The appellant/opposite party reiterated that no cause of action for claiming refund arose within the territorial jurisdiction of the District Consumer Forum, Bijnor.
Another objection has been raised by the appellant/opposite party regarding maintainability of the complaint case is that the complainant had not alleged any defects or deficiency in service rather claimed refund on account of non delivery of vehicle which does not constitute any consumer dispute and the complaint case is wholly misconceived. In support of this contention, the appellant/opposite party relied on the judgment of the Hon'ble National Commission in Premier Automobiles Limited V/s Hiralal Jairam Thacker reported in III (1994) CPJ 131(NC). It is also contended on behalf of the appellant that the appellant/opposite party is only a dealer and thus the order directing the opposite party to refund the money which is lying with the manufacturer is absolutely perverse and illegal as no services had been hired or availed from the opposite party, therefore, there was no privity of contract between the opposite party and the complainant. There had been absolutely no deficiency in service of the opposite party and the complaint case is a misconceived approached of the complainant to invoke the benevolent provisions
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of the Consumer Protection Act to get their redressal for involvement of commercial purposes. Thus the learned Counsel for the appellant contended that this appeal deserves to be allowed and the impugned order is liable to be set aside.
Learned Counsel for the complainant/respondent contended that the appellant has not only committed unfair trade practice but also committed deficiency in service due to reason the bank issued R.C. and the complainant suffered loss and social stigma. The admitted and uncontroverted facts of the case are that the respondent had applied for loan for purchase of three wheeler vehicle for self employment under Prime Minister Employment Scheme. The appellant had provided quotation with assurance that after the payment of total cost of the three wheeler within 15 days, the appellant will provide three wheeler to the complainant. The bank sanctioned loan amount to the tune of Rs.90,000/-. On the assurance and promise of the appellant, the respondent deposited margin money with the bank and the bank prepared bank draft of an amount of Rs.1,15,637.32 towards total cost of the three wheeler and directly paid to the appellant but the appellant despite the amount encashed, did not deliver the three wheeler to the complainant. Six months passed, but the appellant neither provided three wheeler nor gave any satisfactory reply, which amounts the unfair trade practice of the opposite party and deficiency in service to the complainant/respondent. In the meantime the bank issued R.C. and Tehsildar started harassing the complainant and, therefore, there was no option left with the complainant except to file the complaint before the District Consumer Forum. The appellant took a plea before the District Consumer Forum that the three wheeler was not made available by the manufacturer company to the complainant. It is contended on behalf of the complainant that if the opposite party did not have the vehicle, then, why did they receive the total cost of the vehicle in advance and why they did not return the money to the bank despite knowing this fact that the bank was charging interest. If the appellant got booking money then it would be presumed that the cost of the vehicle at the time of delivery will remain the same cost as was at the time of booking. The appellant's version that the cost of the vehicle was increased and the complainant did not pay the increased cost and, therefore, the opposite party could not deliver the three wheeler to the complainant has no force as there had not been
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filed any chart pertaining to the increased cost of the vehicle before the District Consumer Forum. The complainant suffered a lot due to sheer negligence of the opposite party, therefore, the District Consumer Forum has rightly held deficiency of the opposite party and allowed the refund of the amount of the complainant alongwith 18% interest per annum against which this appeal has no force and is liable to be dismissed.
After hearing of both the parties and perusal of the record as well as the impugned order, we have found that the District Consumer Forum, Bijnor was not having any jurisdiction to decide the facts in dispute in between the parties.
From the documents on record, it is clear that the subject contract between the parties was entered into in Meerut, and the delivery of the vehicle was also to be given in Meerut. Even the Demand Draft for the booking amount, drawn in favour of the Appellant, was payable at Meerut.In the above facts and circumstances, we are of the view that no part of cause of action had arisen within the territorial jurisdiction of District Forum, Bijnore and, therefore, the impugned order is liable to be set aside on this ground alone.
We also find that at the time of institution of the complaint, the Opposite party/appellant was not residing at Bijnor rather the opposite party carried his business at Meerut, nor there was any branch of the opposite party doing the business at Bijnor and the cause of action wholly or in part does also not arise at Bijnor as the entire proceedings pertaining to purchasing of the three wheeler had been conducted at Meerut. Therefore, we hold that the District Consumer Forum, Bijnor was not having any jurisdiction to try this case.
We have noticed that the appellant had raised the plea of lack ofjurisdiction before the District Forum, and the same has been recorded in the impugned order by the District forum before us but the District Forum has not given any finding on the issue of jurisdiction.We see no justification in the District Forum's omission to discus/decide the issue of jurisdiction in accordance with law.
In Jagmittar Sain Bhagat v. Health Services, Haryana, (2013) 10
SCC 136, the Hon'ble Supreme Court held:
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"9. Indisputably, it is a settled legal proposition that conferment of
jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior court, and if the court passes a decree having no jurisdiction over the matter, it would amount to nullity as the matter goes to the root of the cause. Such an issue can be raised at any stage of the proceedings. The
finding of a court or tribunal becomes irrelevant and unenforceable/inexecutable once the forum is found to have no
jurisdiction. Similarly, if a court/tribunal inherently lacks
jurisdiction, acquiescence of party equally should not be permitted
to perpetrate and perpetuate defeating of the legislative animation.
The court cannot derive jurisdiction apart from the statute. In such
eventuality the doctrine of waiver also does not apply."
Even on merits, the case of the respondent is without substance. We have noted that the terms of the contract, specified in the receipt dated 26.4.2011, issued to the respondent at the time of booking the vehicle, expressly stipulated that the price was subject to change without notice. Further, it was mentioned in the contract that the price prevailing at the time of delivery shall be payable by the respondent.
The respondent was bound by the above noted contractual terms, and was liable to pay the price prevailing at the time of delivery of vehicle was offered by the Appellant. However, instead of paying such price, the respondent filed a consumer complaint before District Forum, Bijnore, which was allowed vide the impugned order.
One more question for consideration is arise in this appeal as per law laid down by the Hon'ble National Commission reported in III (1994) CPJ 131 (NC) in the case of Premier Automobiles Limited V/s Hiralal Jairam Thacker wherein it is held that the advance price for the car cannot constitute the subject matter of adjudication under the Consumer Protection Act, 1986, inasmuch as the contract was only one for sale of goods and there has admittedly been no defect in the goods inasmuch as there is no allegation at all that there was any defect in goods supplied to the opposite party, namely, the car. The Hon'ble National Commission has held that if there was a term in the contract of sale for payment of interest on the amount deposited as advance price and any delay has been committed in respect of the said subject matter the remedy of the party lies in approaching the
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Civil Court.
In this case before us the dispute arose in between the parties on the cost as was increased at the time of delivery from the cost which was deposited by the opposite party at the time of booking of the three wheeler but in this regard the terms and conditions in between the parties remained very much clear which have not been considered by the District Consumer Forum.
In light of the above discussion, we find that the impugned order dated 8.3.1999, passed by the District Consumer Forum, Bijnor in Case No. 174/1997 deserves to be set aside.
ORDER
The aforesaid appeal is hereby allowed. The order dated 8.3.1999, passed by the Ld. District Consumer Forum, Bijnor in Complaint Case No. 174/1997 is hereby set aside. Both parties to bear their own cost for this appeal.
(JUSTICE VIRENDRA SINGH)
PRESIDENT
( A K CHAUDHARY )
MEMBER
( R C CHAUDHARY)
MEMBER
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