Tripura

StateCommission

A/33/2017

Shri. Deepak Raha - Complainant(s)

Versus

Shri. Ayan Majumder - Opp.Party(s)

Mr. Bijan Saha

27 Mar 2018

ORDER

Tripura State Consumer Disputes Redressal Commission, Agartala.

 

 

Case No.A. 33.2017

 

1. Sri Deepak Raha,

C/o Room No.161, Bipanibitan,

Durga Chowmuhani, Agartala,

West Tripura District.

  … … … … … … … Appellant/Opposite Party No.1.

 

Vs

 

1. Sri Ayan Majumder,

S/o Sri Radheshyam Majumder,

Boulapassa, Kailashahar, Unakoti District.

… … … … … … … Respondent/Complainant.

 

2. The General Manager,

Brother International (India) Pvt. Ltd.,

Unit No.111, 1^st Floor,

C Wing, 215 Artium, Andheri-Kurla Road,

Andheri (East), Mumbai-400 059.

   … … … … … … … Proforma Respondent/Opposite Party No.2.

 

Present

Mr. Justice U.B. Saha,

President,

State Commission, Tripura.

 

Mrs. Sobhana Datta,

Member,

State Commission, Tripura.

 

Mr. Narayan Chandra Sharma,

Member,

State Commission, Tripura.

 

 

For the Appellant:                                           Mr. Bijan Saha, Adv.

For the Respondent No.1:                              Mr. Samarjit Bhattacharjee, Adv. & Mr. Kausik Nath, Adv.

For the Respondent No.2:                              Absent.

Date of Hearing:                                             22.02.2018.

Date of Delivery of Judgment:                      27.03.2018.

J U D G M E N T

 

U.B. Saha, J,

The instant appeal is directed against the judgment dated 16.05.2017 passed by the learned District Consumer Disputes Redressal Forum (hereinafter referred to as District Forum), North Tripura, Kailashahar in Case No. C.C. 06 of 2014 whereby and whereunder the learned District Forum directed the opposite parties i.e. the appellant and the proforma respondent herein (i.e. opposite party no.2) to pay compensation of Rs.38,000/- to the respondent (hereinafter referred to as complainant) with interest @8% per annum from 03.07.014 i.e. the date of institution of the complaint within two months from the date of judgment, failing which the complainant is at liberty to realize the amount from the opposite parties by due process of law.  

2. Heard Mr. Bijan Saha, Ld. Counsel appearing for the appellant Sri Deepak Raha (hereinafter referred to as opposite party no.1) as well as Mr. Samarjit Bhattacharjee, Ld. Counsel assisted by Mr. Kausik Nath, Ld. Counsel appearing on behalf of the complainant Sri Ayan Majumder.
3. Facts of the case needed to be discussed are as follows:-

The complainant filed a complaint application against Sri Deepak Raha, the opposite party no.1 and the General Manager, Brother International (India) Pvt. Ltd. (hereinafter referred to as opposite party no.2) alleging that he is a shop owner under the name and styles ‘Shivnath Xerox House’ at Boulapassa, PWD Road, Kailashahar, Unakoti District and in his shop, he does various works, such as, computer typing and printing therefrom. He purchased one printer bearing Model No. MFC J430W, Sl. No. E70441K2F126841 and one CISS Kit from the opposite party no.1, being manufactured by the opposite party no.2, Brother International (India) Pvt. Ltd. on 25.01.2013 paying the consideration money amounting to Rs.8,000/- and Rs.1,000/- respectively in cash and the complainant installed the said printer at his above noted shop with utmost care and attention. The said printer was put to use at his shop for the purpose of his livelihood by means of self-employment. While purchasing the printer, the opposite party no.1, the appellant herein, assured the complainant that in the event of any fault in the said printer or on its being out of the order, as the case may be, the printer shall be repaired by the opposite party no.1 or the opposite party no.1 in the happening of the said event shall send the said printer to opposite party no.2 for necessary repairing and the production of the original cash memo/bill of the same, ipso-facto, shall be sufficient for such repairing either by the opposite party no.1 or opposite party no.2 and such repairing shall be done within the warranty period from the date of purchase of the same. It is further stated in the complaint petition that on 11.07.2013, the said printer had stopped working and as a result, the complainant had been sustaining huge financial loss. The complainant detected that the opposite party no.1 had fraudulently sold the defective printer to him. Thereafter he had sent several representations to the opposite parties on several occasions in writing. On 19.07.2013, the complainant made online complaint with the opposite party no.2 mentioning the defect prevailing in the said printer and requested for its rectification/repairing. On 22.07.2013, the said printer was handed over to the opposite party no.1 in its office at Smartcare Trading Services Pvt. Ltd., Durga Chowmuhani, Agartala, West Tripura and the opposite party no.1 also issued a receipt through its employee wherein such employee clearly mentioned the type of defect/problem prevailing in the said printer while receiving the said printer. Thereafter, the opposite party no.1 had assured the complainant that the same shall be repaired accordingly. On 23.07.2013, the opposite party no.1 informed the complainant that the printer was repaired and on 09.08.2013, the complainant received the printer from the shop of the opposite party no.1. It is further alleged in the complaint petition that on 10.08.2013, when the complainant installed the printer in his shop, he found the earlier problem persisted. Thereafter, he again communicated to the opposite party no.1 for due repairing of the printer, but no suitable response was received from the opposite party no.1. Getting no response from the opposite party no.1, the complainant made a complaint with the opposite party no.2 on 17.08.2013. Upon receipt of the complaint of the complainant, the opposite party no.2 did not take any step for repairing of the printer and requested the complainant to handover the said printer to the opposite party no.1 for necessary rectification/repairing, but when the said printer was offered, the opposite party no.1 denied receiving the same. Thereafter, the complainant tried to contact by writing or over phone with the opposite parties, but all his efforts turned futile. It is also mentioned in the complaint petition that it was detected by the complainant that the back cover of the printer does not correspond with the serial number on the box covering the printer and the bill memo. It is also contended in the complaint petition that the opposite party no.1 in collusion with the opposite party no.2 in order to earn wrongful gain and to exonerate themselves from the liability of repairing the same might have interchanged the purchased defective printer with another defective printer of the same model during the time in between 22.07.2013 and 23.07.2013 when the complainant for the first time handed over the said printer to the opposite party no.1 for necessary repairing and thus the opposite parties clearly deceived the complainant.

Being aggrieved by the action of the opposite parties, the complainant served the lawyer notice to the opposite parties, but without taking any recourse, the opposite party no.1 by a letter dated 15.02.2014 illegally and baselessly demanded Rs.8,000/- from him without any justification. In his complaint petition, the complainant has claimed compensation of Rs.1,06,750/- which includes loss of income with effect from 11.07.2013 to 03.07.2014 and also for mental tension as well as suffering, the cost of the printer and the cost of conveyance to attend the office of the opposite party no.1.

4. On receipt of the notice, the opposite party no.1 appeared before the learned District Forum, but did not submit any written statement though several adjournments were granted on the prayer of the opposite party.
5. On the other hand, on receipt of the notice, the opposite party no.2 did not appear before the learned District Forum and the case was proceeded ex parte against the opposite party no.2.
6. After considering the evidence on record, the learned District Forum passed the impugned judgment.
7. Being aggrieved by the judgment impugned, the opposite party no.1 has preferred the instant appeal before this Commission. In the appeal, the opposite party has raised the question of territorial jurisdiction of the District Forum along with other grounds.
8. Mr. B. Saha, Ld. Counsel while urging for setting aside the impugned judgment has raised question on the territorial jurisdiction of the District Forum. He has also submitted that admittedly, the complainant purchased the Computer Printer and CISS Kit from the shop of the opposite party no.1 at Bipanibitan, Durga Chowmuhani, Agartala, West Tripura not at Kailashahar and the opposite party no.1 has neither any shop nor any branch within the jurisdiction of the learned District Forum, North Tripura, Kailashahar. Thus, according to him, the learned District Forum acted and passed the impugned judgment beyond its jurisdiction. He has further contended that the defect of jurisdiction, whether it is pecuniary or territorial, strikes at the very authority of the Forum to pass any order and such an order is a nullity and its invalidity could be set up whenever or wherever it is sought to be enforced. In support of his aforesaid contention, he has relied upon a judgment of Hon’ble National Consumer Disputes Redressal Commission (hereinafter referred to as National Commission) in Haryana Urban Development Authority Vs Vipan Kumar Kohli (Revision Petition No.317 of 1994) decided on 19^th January, 1995) wherein the Hon’ble National Commission decided the question of territorial jurisdiction of the District Forum, Delhi. He has finally contended that for defect of jurisdiction itself, the impugned judgment is liable to be quashed.
9. Per contra, Mr. Bhattacharjee, Ld. Counsel while supporting the judgment of the learned District Forum has submitted that as the appellant-opposite party no.1 did not raise any question of jurisdiction in the District Forum i.e. the Trial Court, he cannot raise the same before the Appellate Authority. He has also submitted that though the learned District Forum allowed time again and again for filing the written statement, but the appellant did not file any written statement before the learned District Forum, meaning thereby, the appellant-opposite party no.1 admitted the contention of the complainant.
10. The basic question for consideration by this Commission is as to whether the learned District Forum, North Tripura, Kailashahar lacked inherent jurisdiction as raised by the appellant. Admittedly, the complainant purchased the Computer Printer and CISS Kit from the opposite party no.1 at Agartala within the jurisdiction of Consumer Disputes Redressal Forum, West Tripura, Agartala and admittedly neither the opposite party no.1 nor the opposite party no.2 has any office or branch within the jurisdiction of the District Forum, North Tripura, Kailashahar where the complaint petition was filed by the complainant under Section 12 of the Consumer Protection Act, 1986 and decided by the learned District Forum, North Tripura, Kailashahar. In Vipan Kumar Kohli (supra) the Hon’ble National Commission considered almost a similar question. In that case, the Haryana Urban Development Authority offered residential plots in Sector 23, Faridabad for allotment on freehold basis to the public in general and other sections of the society according to the terms and conditions advertised. The description of plots available, rates and earnest money, eligibility and other conditions, date of receipt of application by the Estate Officer, Haryana Urban Development Authority (for short HUDA), Faridabad etc. were detailed therein. The respondent-complainant therein made an application before the District Forum, Delhi along with key-plan folder with proof of deposit of the earnest money of Rs.2,889/- i.e. 10% of the price fixed for allotment of the plot applied for. The amount of Rs.2,889/- was deposited on 18^th October, 1984 with the Indian Bank, South Extension, New Delhi for HUDA Estate, Faridabad on HUDA account. As there were disputes regarding the land out of which plots for Sector 23 were to be carved out and allotted, the petitioner took a decision that draw for this Sector will not be held. The complainant was informed on 01.07.1992 to take the refund of Rs.2,889/-. The complainant wrote on 8^th September, 1992 requesting for refund of the amount of Rs.2,889/- plus interest on registration amount permissible under the rules. The Estate Officer, HUDA, Faridabad refunded the earnest money by a cheque dated 30^th September, 1992. The complainant filed the complaint petition dated 12^th February, 1993 before the District Consumer Disputes Redressal Forum II, Delhi claiming interest on the amount deposited for the period the amount remained in deposit with the Estate Officer, HUDA, Faridabad. The maintainability of the complaint was objected to on the ground that it was beyond the territorial jurisdiction of the District Forum, Delhi and on merit, it was pleaded that no interest was payable as specifically mentioned in the application filed by the complainant. The District Forum, Delhi considering the facts that the earnest money was received by the Opposite Party in New Delhi through the Indian Bank, South Extension Branch, New Delhi, within the jurisdiction of that Forum and hence a part of cause of action arose within the jurisdiction of the District Forum and repelled the objection regarding territorial jurisdiction raised by the opposite party-petitioner therein and allowed the complaint petition. An appeal was filed against the judgment of the District Forum, Delhi before the State Consumer Disputes Redressal Commission, Delhi which was also dismissed in limine because the certified copy of the order of the District Forum, Delhi had not been filed and there was delay without proper explanation in filing the appeal.

Being aggrieved by the decision of the District Forum, Delhi as well as by the State Commission, Delhi, the Opposite Party petitioner therein, filed a Revision Petition before the Hon’ble National Commission and the Hon’ble National Commission in Paragraph-7 of its judgment observed as follows:-

“7. At the outset, we may state the settled law that a defect of jurisdiction, whether it is pecuniary or territorial, strikes at the very authority of the Forum to pass any order and such an order is a nullity and its invalidity could be set up whenever or wherever it is sought to be enforced. Even though the appeal and the application of condonation of delay were dismissed in limine by the State Commission, we examined the question as it relates to the inherent lack of jurisdiction of the District Forum.”

In Paragraph-8 of the said judgment, the Hon’ble National Commission also considered the Clause (c) of Section 11 (2) of the Consumer Protection Act, 1986 which is as follows:-

“8. Under Clause (c) of Section 11 (2) of the Consumer Protection Act, 1986, which is one of the three - alternative grounds for  conferring territorial jurisdiction, the complaint shall be instituted in a District Forum within local limits on whose jurisdiction "the cause of action, wholly or in part, arises". It is established on record that the complainant deposited in cash on 18th October, 1984 a sum of Rs.2,889/- with the Indian Bank, South Extension, New Delhi, on account of earnest money with application No.003430 on HUDA account for HUDA Estate, Faridabad. The applications were to be made and to reach the Estate Officer, HUDA, Faridabad directly or through the branches of the authorised Banks, (including Indian Bank, south Extension, New Delhi) latest by 19th October, 1984. The mere fact that the Indian Bank, South Extension, New Delhi received the earnest money of Rs.2,889/- in cash from the complainant and remitted it to Estate Officer, HUDA, Faridabad, does not mean that a part of cause of action has arisen in Delhi. Receipt of the payment by Estate Officer, Faridabad and its non-refund with interest would be a part of cause of action. Supposing the complainant had deposited the money in a Bank and obtained a Bank Draft for the amount or earnest money from a branch of any bank from anywhere in India but payable to Estate Officer, HUDA, Faridabad and had forwarded it along with the application to Estate Officer, Faridabad, no part of cause of action could be said to arise at the place from where the bank draft was obtained. The bank acted only as an agent of the complainant in issuing the bank draft. in this case the amount was paid in cash and received by the Indian Bank, New Delhi and remitted to the Estate Officer, HUDA at Faridabad. It was a facility which was provided but the payment of the earnest money had to be remitted to the Estate Officer, Faridabad either directly by the applicant or through authorized banks. Therefore, no part of cause of action had arisen in Delhi.”

The Hon’ble National Commission ultimately allowed the Revision Petition filed by the opposite party-petitioner therein and set aside the orders of the State Commission, Delhi and the District Forum, Delhi keeping open for the complainant to pursue his complaint already filed with District Forum, Faridabad.

In view of the aforesaid judgment of the Hon’ble National Commission and the facts of the instant case, we are of the considered opinion that even if the question of jurisdiction has not raised by any of the party, it is the duty of the Court/Forum to see as to whether it has the pecuniary jurisdiction or territorial jurisdiction to decide the complaint/suit lodged before it. Mere non-filing of written statement and non-raising of the question of jurisdiction by the opposite party does not give jurisdiction to the learned District Forum to decide the complaint case and pass the impugned judgment.

Accordingly, the impugned judgment is set aside. However, it will be open to the complainant to file his complaint petition before the appropriate Forum which has the jurisdiction in accordance with law. No order as to costs.

Send down the records to the Ld. District Forum, North Tripura, Kailashahar.