ORAL
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
UTTAR PRADESH, LUCKNOW
APPEAL NO. 520 OF 2022
(Against the order dated 09-05-2022 in Complaint No.:Misc.08/2022
of the District Consumer Commission-I, Moradabad)
Akash Kumar
S/o ShriMadan Pal
R/o RajkiyaAdarsh Colony
Near 23 P.A.C., Moradabad
...Appellant/Complainant
Vs.
- SBI Card and Payment Services Ltd.
DLF Infinity Towers, Tower C
12th Floor, Block-2, Building 3
DLF Cyber City, Gurugram-122002
(Haryana)
- SBI, D-12 D, Kaushambhi
Ghaziabad
Through Branch Manager
...Respondents/Opposite Parties
BEFORE:
HON'BLE MR. JUSTICE ASHOK KUMAR, PRESIDENT
HON’BLE MR. VIKAS SAXENA, MEMBER
For the Appellant : Sri Naveen Kumar Tiwary, Advocate.
For the Respondent :
Dated : 27-06-2022
ORDER
MR. VIKAS SAXENA, MEMBER
Heard Sri Naveen Kumar Tiwari, learned Counsel for the appellant.
The instant appeal is filed by the complainant being aggrieved against the impugned order dated 09-05-2022 passed by the learned District Consumer Commission-I, Moradabad in Complaint No. : Misc. case no.08/2022 Akash Kumar V/s S.B.I. Card & Payment Service Limited and another whereby, the complaint case filed by the complainant was dismissed at the stage of admission.
The aforesaid complaint was filed with the averments that the complainant is on the post of Arakshi in police department and he is
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posted at Ghaziabad. His salary account was opened in State Bank of India, D-12/D, Kaushambhi Branch of Ghaziabad. The respondent No. 01 S.B.I. Card and Payment Services Limited, Gurugram, Haryana and respondent No.02 State Bank of India, Kaushambhi Branch, Ghaziabad organized a camp in police batalian Ghaziabad, where the complainant and many other police employees applied for credit-card facility. The respondent No.02 informed the complainant that his credit-card had been sent to respondent No.01, from where the complainant had to obtain the credit- card. The complainant received the Credit Card No. 4626-4290-5433-5084 in August, 2018. The complainant submitted that whatever purchasing was made through the aforesaid credit-card, the connected amount was refunded through the saving bank account of the complainant at SBI Kaushambhi Branch i.e. respondent No.02. For closing the facility of aforesaid credit-card the complainant made many calls on toll free number of respondents No. 01 and 02 but the respondent No.01 did not close it and kept on deducting the amount from the aforesaid saving account of the complainant. The complainant considered it a deficiency in service and unfair trade practice on the part of the respondents and instituted the complaint at District Consumer Commission-I, Moradabad.
The learned District Consumer Commission-I, Moradabad dismissed the complaint at admission stage on the ground of territorial jurisdiction. It is said in the impugned judgment/order that the complainant is posted at Ghaziabad and his salary account is also situate at SBI Kaushambi Branch of Ghaziabad whereas the respondent No.01 is placed at Gurugram, Haryana but the present complaint was filed at Moradabad where the complainant stated to be having his permanent residence. The learned District Consumer Commission drew the conclusion that the District Consumer Commission, Moradabad has no territorial jurisdiction to hear and entertain the complaint and dismissed the complaint at the stage of admission on account of lack of territorial jurisdiction of District Consumer Commission, Moradabad.
Being aggrieved from the order this appeal has been preferred on the grounds that the complainant has his residence at Moradabad and as
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per Consumer Protection Act 2019, any complaint can also be filed where the complainant resides. In the present case the complainant has his residence at Moradabad so he can prefer to file the complaint-case at Moradabad also. It is also argued by the Counsel for the complainant that the complainant is posted at Ghaziabad only for alimited time and at any moment he can be transferred or shifted to another place then it would be very difficult to pursue the complaint at Ghaziabad. Therefore, he preferred this complaint at Moradabad which is his place of permanent residence.
We have heard Sri Naveen Kumar Tiwari, learned Counsel for the appellant/complainant at the admission stage as the complaint also was dismissed at the stage of admission.
The question before this appellate Court is as to whether the place of present posting where the complainant is residing for a limited span of time can be considered as place of his ‘residence’ within meaning of Section 34(2)(d) of the Consumer Protection Act, 2019 or place of his permanent residence can also be considered as the place where the complainant resides and the place of his permanent residence can also provide jurisdiction for filing the complaint at this place.
In this connection, Section 34(2) of the Consumer Protection Act, 2019 can be seen which provides the territorial jurisdiction of the District Consumer Commission for filing a complaint at District Consumer Commission which is as follows:-
34(2) A complaint shall be instituted in a District Commission within the local limits of whose jurisdiction,—
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, ordinarily resides or carries on business or has a branch office or personally works for gain; or
(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works
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for gain, provided that in such case the permission of the District Commission is given; or
(c) the cause of action, wholly or in part, arises; or
(d) the complainant resides or personally works for gain.
The complainant has filed this complaint on the basis of his permanent residence at Moradabad as Section 34(2)(d) provides a complaint can also be instituted within local limits of a District Consumer Commission where the complainant ‘resides’.
In Webster’s Dictionary “to reside” has been defined as meaning ‘to dwell permanently or for any length of time”. The Hon’ble Apex Court in Smt. JeewantiPandey V/s Kishan Chandra Pandey reported in AIR 1982 SC Page-3 defined the word“residence”of a person,where there is such fixed home or such abode at one place.The person cannot be said to reside at any other place where he had gone on a casual or temporary visit, for example, for health or business or for a change. If a person lives with his wife and children in an established home, his legal and actual place of residence is the same.
In the case of NarsimhaRao V/s Venkata Lakshmi reported in (1991) 3 SCC Page 451 the Hon’ble Supreme Court held that “residence” does not mean a temporary residence for the purpose of obtaining a relief but habitual residence which is intended to be permanent and for future as well.
Similarly the Hon’ble Supreme Court in Union of India V/s DoodhNath Mishra reported in 2000 (1) SCR Page-1 defined the word “resides” as it is to be ordinarily considered taking into consideration the place, where a person ordinarily resides and has an intention to stay at that place for a considerable length of time and it would not include a visit of a short or casual presence at that place.
In RajaqatUllah Khan V/s Emperor reported in 1948 ALJ Page-305 the Hon’ble Allahabad High Court defined the word “resides” to mean residence of a permanent character or as not casual or temporary residence. The Hon’ble High Court defined that if there is animus revertendi, his temporary stay at another place, however long, will not have the effect of changing his permanent residence at the original place. “Resides” refers to a place where a person stays with his family permanently and voluntarily. It is
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also explained by the Hon’ble Court that “to reside” to mean to live or to have a dwelling place or abode. It cannot be equated with something in the nature of having a domicile in a particular place. Reside implies something more than a brief visit to a place where a man resides with his family.
In SatyavsTeja Singh reported in AIR 1975 SC Page-105 the Hon’ble Apex Court observed that the word “resides” is not free from ambiguity, as the word is capable of a variety of meaning according to the circumstances to which it is made applicable and the context in which it is found. Residence is not meant to take in places of temporary stay, however, long the stay may be. The residence must answer a qualitative as well as quantitative test and the two elements of factum at animus must concur for determining as to whether a person is a resident of a particular place or not. The facts and circumstances of each case must be looked into and inference can be drawn after ascertaining the place where a person is expected to be ordinarily found. It must have an abode for a considerable time; to dwell permanently. For the purpose of determining that as to whether a person is a resident of a place or not, he must have a permanent and not a temporary abode with an intention to stay for an indefinite period.
The Hon’ble Supreme Court in the case of Mst. JagirKaur V/s Jaswant Singh reported in AIR 1963 SC Page -1521 defined the word “residence” referring to a place which is made by choice by a person, his abode permanently.
Considering the aforesaid meaning defined by the Hon’ble Apex Court and Hon’ble High-Court appended to the word “resides” and “residence” in this particular matter it is found by this bench that Section 34(2)(d) of the Consumer Protection Act, 2019 has been added in this new Consumer Protection Act with a view to provide a facility to the consumer/complainant so that he can pursue the case at his convenience from his place of residence which was not provided in the previous Act. In this particular case the complainant is temporarily posted at Ghaziabad in connection to his service and he can be transferred and shifted to another place at any point of time after filing of complaint and thereafter, he might find enormous difficulty to pursue the case from Ghaziabad, whereas the complainant finds and feels the place of his permanent
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Residence (Moradabad) a convenient place to pursue his case continuously, therefore, he has preferred and has chosen District Consumer Commission, Moradabad where his permanent residence is situated. Therefore, it cannot be said that only the place, where he is at present residing has territorial jurisdiction to institute and entertain the complaint as per Section 34(2)(b) of The Consumer Protection Act, 2019. Place of his residence may be understood to be the place of his permanent residence from where he can pursue the case as per his convenience. This Commission does not find the complainant out of jurisdiction of District Consumer Commission, Moradabad whereas the District Consumer Commission-I, Moradabad has dismissed the complaint finding the case out of jurisdiction.
In view of the above, we are of the view that the order cannot be said to be sustainable in the eyes of law and is liable to be set aside.
ORDER
In view of above, the appeal is allowed. The impugned judgment and order dated 09-05-2022 passed by the District Consumer Commission-I, Moradabad in Complaint Case No.:Misc. 08/2022 Akash Kumar V/s S.B.I. Card and Payment Service Limited is set aside. The complaint case is remanded back to the District Consumer Commission-I, Moradabad with a direction to entertain and admit the complaint and decide accordingly as per law.
Let copy of this order be made available to the parties positively within 15 days as per rules.
The Stenographer is requested to upload this order on the website of this Commission at the earliest.
( JUSTICE ASHOK KUMAR ) ( VIKAS SAXENA )
PRESIDENT MEMBER
Pnt
Court-1
