Delhi

East Delhi

CC/656/2015

MRIDUL JAIN - Complainant(s)

Versus

SELECT INFRA. - Opp.Party(s)

03 May 2017

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.  656/15

 

Shri Mridul Jain

S/o Shri Ravinder Kumar Jain

R/o 125, Rishabh Vihar

Delhi – 110 092                                                           …….Complainant

Vs.

1. Select Infrastructure Pvt. Ltd.

101-103, Kanchenjunga Buiding

18, Barakhamba Road

New Delhi – 110 001

 

2. My Square

Versatile Food Courts Private Limited

Select City Walk

A-3, District Centre Saket, Delhi – 110 017

(Through its MD/Director/Principal Officer)

 

3. SS onn the GO

A unit of Eat Bud Food Pvt. Ltd.

Foodstall No. 1 & 2, My Square

Second Floor, Select Citywalk

A-3, District Centre Saket, Delhi – 110 017  

(Through its MD/Director/Principal Officer                        ….Opponents

 

Date of Institution: 22.09.2015

Judgment Reserved on: 03.05.2017

Judgment Passed on: 07.05.2017

CORUM:

Sh. Sukhdev Singh (President)

Dr. P.N. Tiwari  (Member)

Ms. Harpreet Kaur Charya (Member)

 

Order By : Sh. Sukhdev Singh (President)

 

JUDGEMENT

          This complaint has been filed by Shri Mridul Jain against Select Infrastructure Pvt. Ltd. (OP-1), My Square, Versatile Food Courts Pvt. Ltd. (OP-2) and SS onn the GO, a unit of Eat Bud Food Pvt. Ltd. (OP-3) under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred as Act). 

2.       Shri Mridul Jain, complainant, stated to be a practicing advocate visited Select Citywalk Mall, Saket, Delhi on 24.06.2015 and purchased food items from SS onn the GO (OP-3) against card issued by My Square, Versatile Food Courts Pvt. Ltd. (OP-2).  He has stated that he was surprised to see that SS onn the GO (OP-3) have charged Rs. 50/- for one Pepsi Can, whereas MRP on he said can was Rs. 27/-.  He informed to the executive /officials of My Square, Versatile Food Courts Pvt. Ltd. (OP-2) and SS onn the GO (OP-3) and requested to refund the excess amount received, but they flatly refused saying that they have charged the amount as per policy of their company.  He requested the officials to provide the complaint book, but they refused to provide the same saying that they do not have any such book.  Legal notice of dated 20.07.2015 was issued which was replied by them. 

          It has further been stated that officials of OPs were jointly and severely liable to refund to the complainant damages, compensation, cost etc. on account of mental pain, agony, torture and humiliation caused to the complainant due to the said objectionable act.  The complainant has also stated that all the OPs have committed deficiency in service.  The complainant has claimed damages/compensation to the tune of Rs. 50/- towards the excess amount charged, mental pain  agony and torture caused to the complainant due to deficiency in service with interest @ 24% and litigation expenses.

3.       In the reply of M/s. Select Infrastructure Pvt. Ltd. (OP-1), they have stated that OP-1 has allotted the licensed space to My Square, Versatile Food Courts Pvt. Ltd. (OP-2) and has permitted it to operate and manage a food court there from.  They were neither involved nor have any control on the business of SS onn the GO (OP-3).  The basic allegations have been against SS onn the GO (OP-3) and no role has been assigned to them in the complaint.  Other facts have also been denied.                                                                                       

          In reply of My Square, Versatile Food Courts Pvt. Ltd. (OP-2), they have stated that My Square, Versatile Food Courts Pvt. Ltd. (OP-2) only issued prepaid cards to the customers for purchase of food items in the food court.  It does not have any control over the prices charged by various occupiers of the food court in respect of the food items sold by them.  The prices are determined by the said occupiers and My Square, Versatile Food Courts Pvt. Ltd. (OP-2) does not have any role to play in the same.  They have further stated that basic allegation in the present complaint have been against SS onn the GO (OP-3) and no role has been assigned to My Square, Versatile Food Courts Pvt. Ltd. (OP-2).  The present complaint was not maintainable against them.  They have not sold or agreed to sell any goods or delivered or agreed to deliver any goods nor provided any service to the complainant.  Other allegations have also been denied.

          In the WS of SS onn the GO (OP-3), they have taken various pleas such as jurisdiction stating that the jurisdiction lies with District Forum (South) as all the OPs were based at South District.  It has been stated that the complainant has wrongly alleged the MRP of the Pepsi Can bought by him on 24.06.2015 at the Quick Service Restaurant of OP-3 to be Rs. 27/-.  The Pepsi Can bought by the complainant on 24.06.2015 from the OP was not and could not have been for Rs. 27/- MRP.  Pepsi Cans in general were available at either Rs. 25/- or at     Rs. 60/- MRP (inclusive of all taxes) and it was at this cost that the Pepsi Can was sold to the complainant also. 

          They have further stated that the invoice dated 08.05.2015 issued by M/s. S.K. Trading Company, Delhi from whom SS onn the GO (OP-3) for the purchase of Pepsi Cans showed that even the answering respondent have been purchasing Pepsi Cans at Rs. 60/- MRP since April 2015.  They have annexed the invoice issued by M/s. S.K. trading Company.  It is stated that the bills annexed by the complainant clearly showed that he was charged Rs. 60/- (cost + 20% tax) for the Pepsi Can and not Rs. 50/- as alleged by him.  Even their menu card shows the cost of a Pepsi Can of 250 ml. as Rs. 60/- MRP.  It has further been stated that the complainant being an advocate have taken undue advantage by presenting a claim for a sum of Rs. 50/- alongwith interest @ 24% p.a. for a Pepsi Can of Rs. 50/- (as per complainant’s case).  This claim was absolutely exaggerated and disproportionate to the alleged loss suffered by the complainant.  They have denied other facts.  Copy of Menu Card of SS onn the GO (OP-3) and Pepsi Can showing the MRP as Rs. 60/- annexed with the written statement.

4.       The complainant has filed rejoinder to the WS of OPs, wherein he has controverted the pleas taken in the WS and reasserted his pleas.

5.       In support of its complaint, the complainant Shri Mridul Jain has examined himself.  He has deposed on affidavit.  He has narrated the contents of the complaint.  He has also got exhibited documents such as complaint (Ex.CW1/1), two slips issued by OP-2 (Ex.CW1/2) (colly.), two copies of bills (Ex.CW1/3), photocopy of all four slips issued by the respondents (Ex.CW1/4), copy of legal notice and postal receipts (Ex.CW1/5) and reply received from OP-1 and OP-3 alongwith envelopes (Ex.CW1/6) (colly.).

          In defence, M/s. Select Infrastructure Pvt. Ltd. (OP-1) has examined Shri Jagdeep Rana, their authorised representative who has deposed on affidavit.  He has narrated the contents of their WS and has also made reference to the agreement entered into between them and Versatile Food Courts Pvt. Ltd. (Annex.A-1), copy of judgement of Hon’ble Supreme Court (Annex.B-2) and their reply of email (Annex.   C-3).    

          Shri Jagdip Rana has also filed his affidavit on behalf of Versatile Food Courts Pvt. Ltd. (OP-2).  He has taken the same stand which has been deposed in the affidavit filed on behalf of M/s. Select Infrastructure Pvt. Ltd. (OP-1).

          M/s. SS onn the GO (OP-3) have examined Shri Ram Tripathi, their authorised representative, who has deposed on affidavit.  He has narrated the contents which have been stated in their WS.  He has also got exhibited documents such as authorisation letter dated 03.11.2015, authorising him to depose (Ex.R3W1/1), letter from M/s. S.K. Trading Company dated 03.11.2015 (Ex.R3W1/2), invoice dated 08.05.2015 of M/s. S.K. Trading Company (Ex.R3W1/3), original menu card of OP-3 (Ex.R3W1/4) and Pepsi Can (Ex.R3W1/5).

6.       We have heard Ld. Counsel for the parties and have perused the material placed on record.  Two fold arguments have been advanced on behalf of SS onn the GO (OP-3).  Firstly, she has stated that this Forum was not having jurisdiction to entertain the complaint as all the OPs were based at South Delhi.  Secondly, she has argued that the goods sold at Select Citywalk Mall were having a different MRP than the goods sold in the local market. 

          On the other hand, the complainant who is an advocate has argued that this Forum was having jurisdiction to entertain the complaint.  He has further argued that Pepsi Can which was sold to him was not having different price one at Select Citywalk Mall and the other in the local market. 

7.       To appreciate the arguments of Ld. Counsel for the parties, a look has to be made to the testimony of the witnesses and the documents placed on record.  Firstly, the question with regard to jurisdiction is taken up.  Undisputedly, if a look is made to the memo of parties, it is noticed that the complainant has filed the complaint against M/s. Select Infrastructure Pvt. Ltd., Barakhamba Road, New Delhi (second address Distt. Centre, Saket) (OP-1), My Square, Versatile Food Courts Pvt. Ltd., Select Citywalk, Distt. Centre, Saket (OP-2) and SS onn the GO, a unit of Eat Bud Food Pvt. Ltd., Select Citywalk (OP-3).  Thus, as per memo of parties, it is noticed that all the three OPs have been based at District Centre, Saket, which falls under the jurisdiction of South District.  On the face of it and as per provisions of Section 11 of the Act, the complaint should have been filed in the Distt. Forum (South) at Saket.  Though, the argument of Ld. Counsel for SS onn the GO (OP-3) is well founded, but we would be hesitant to dismiss the complaint on this ground at the final stage.

            The fact that the complaint has been at the final stage, it will result in injustice to the complainant if the argument of Ld. Counsel for the OP is accepted.  This argument of Ld. Counsel for the OP cannot come in the way of imparting substantial justice, as the competence of the Forum is not in question.  When the competence of this Forum is not in question, the technical ground of territorial jurisdiction cannot be accepted.  Therefore, the argument of Ld. Counsel for OP that this Forum has no territorial jurisdiction cannot be accepted and the same stands rejected.

8.        Coming to the second argument, it is the case of the complainant that he has been sold Pepsi Can @ Rs. 50/- which was above the MRP shown on the Can as Rs. 27/-.  If bill (CW1/3) is perused, it is noticed that amount of Rs. 50/- has been shown as the rate against of Pepsi Can and on it 20% vat has been shown as Rs. 10/- making a total of Rs. 60/-.  The Pepsi Can which has been deposited during the proceedings show MRP as Rs. 27/-.  However, the evidence which has been brought on record by SS onn the GO (OP-3) has been that they have been purchasing the Pepsi Cans from M/s. S.K. Trading Company showing the invoice Ex.R3W1/2 as MRP of Rs. 60/-.  They have also made reference to original Menu Card Ex. R3W1/4 and Pepsi Can which was deposited during the course of proceedings as Ex.R3W1/5 showing the MRP as     Rs. 60/-.

            If a look is made to documents such as letter of M/s. S.K. Trading Company (Ex.R3W1/2), it is noticed that they have been selling Pepsi Cans to M/s. Eat Bud Food Pvt. Ltd. at Rs. 60/- MRP since April 2015.  Further, invoice of M/s. S.K. Trading Company (Ex.R3W1/3) also show MRP of 250ml Can Rs. 60/-.  Thus, from the testimony of                        Shri Ram Tripathi, AR of SS onn the GO (OP-3) and the documents placed on record, it comes out that the company was purchasing the Pepsi Cans at the MRP of Rs. 60/- which was being sold by them at Select Citywalk Mall.  Further, a reference to their Menu Card (Ex.R3W1/4) and Pepsi Can Ex.R3W1/5 showing MRP of Rs. 60/- show that the Pepsi Can have been sold @ Rs. 60/-.  There is no evidence on record to show that the Pepsi Can deposited by the complainant was purchased by him from Select Citywalk Mall.  Thus, from the analysis of the evidence on record, the plea of the complainant that he purchased the Pepsi Can over and above MRP of Rs. 27/- cannot be accepted. 

            Not only this, when the Pepsi Cans have been sold at two different prices, one for malls and other for local market, there is force in the argument of Ld. Counsel for SS onn the GO (OP-3) that they have sold the Pepsi Can at the price which they have charged.  Therefore, the case of the complainant that SS onn the GO (OP-3) have charged excess amount than the MRP cannot be accepted.  When the complaint fails on the first score, the question of having suffered any damage does not arise.  Even otherwise also, the compensation claimed in the complaint on account of mental harassment and torture are mere allegations without any substance. 

9.        Before parting with, it would not be out of place to mention that complainant, who is an advocate have impeded M/s. Select Infrastructure Pvt. Ltd. (OP-1) and My Square, Versatile Food Courts Pvt. Ltd. (OP-2) without having any allegations against them.  Before impleading them as one of the parties, the complainant being a practising advocate should have had a glance to Order 1 of CPC, which is a basic and guiding order in respect of impleadment of necessary parties.  Since, there were no allegations against these two OPs they were not necessary parties.  By impleading both these OPs, the complainant has dragged them in the Forum, which he should have avoided.  We desist from putting any cost on the complainant having impleaded                M/s. Select Infrastructure Pvt. Ltd. (OP-1) and My Square, Versatile Food Courts Pvt. Ltd. (OP-2)  as they were not necessary parties, but advise the complainant to be careful in future in respect of invoking the jurisdiction of this Forum as well as impleadment of parties.   

            In view of the above, we are of the opinion that the complainant has failed to substantiate the allegations in the complaint.  Therefore, there has been no deficiency on the part of SS onn the GO (OP-3).  Thus, his complaint deserves its dismissal and the same is dismissed.  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