MR. KUNDAN KUMAR KUMAI

This is an application under section 17(1)(b) of the Consumer Protection Act, 1986 preferred against the Order dated 11/11/2022, passed by the Ld. DCDRF, Alipurduar in CC/28/2019.

Brief facts of the Petitioner’s Case are that, the Opposite Party had filed a complaint stating that the Petitioner being a Private Ltd. Co., by virtue of their lucrative advertisements as well as their agents had enticed the Opposite Party into purchasing a flat, on lottery basis and the Opposite Party had booked a flat on 31/12/18 by paying Rs.65,000/- (Rupees sixty-five thousand) only, through ICICI bank Alipurduar Branch. On 09/04/19 the Petitioner informed the OP that the flat had been allotted in e-lottery process held on 04/04/19 with parking space in “Solaris Joka Phase” and asked the OP to make payment of Rs.1,21,428/- (Rupees one lakh twenty-one thousand four hundred twenty-eight) only, within 22/04/19 as booking amount. The Opposite Party then issued a cheque amounting to Rs. 1,21,428/- (Rupees one lakh twenty-one thousand four hundred twenty-eight) only, on 22/04/19 which had been encashed by the Petitioner and issued 2 nos. of money receipts being RECOO21/00072/19-20 for Rs.65,000/- (Rupees sixty-five thousand) and RECOO21/00073/19-20 for Rs. 1,21,428/- (Rupees one lakh twenty-one thousand four hundred twenty-eight) on 22/04/19. In the above receipts it was mentioned that “booking/refund shall be given to person named in the receipt (applicant)” in point no.6.

After the illness of her father and on requirement of money, the Opposite Party, intended to cancel her booked flat and requested the Petitioner to refund the entire amount which had been paid as booking amount, amounting to Rs.1,86,428/- (Rupees one lakh eighty-six thousand four hundred twenty-eight) only. But the Petitioner refused to repay the above amount due to cancellation of the booked flat, as per their norms. The OP again claimed her booking amount through e-mail but the Petitioner refused to repay the said, on the ground that the Petitioner was not bound to refund due to terms and conditions, but the OP had alleged that the Petitioner was refusing to repay whimsically and intentionally as she had not entered into any Agreement. Finding no alternative, the OP filed this instant Case with necessary prayers.

The instant petitioner appeared to contest the Case by filing written version wherein they had challenged the jurisdiction of the Case at Alipurduar, on the ground that the Petitioner did not satisfy the provisions under section 11(2) of the Consumer Protection Act, 1986. They had further challenged that by the enactment of the West Bengal Housing Industry Regulation Act, 2017 the jurisdiction of the instant Forum had been barred. That apart the Clause 25 of the General Terms and Conditions, of the project Solaris Joka Phase I clearly laid down that the Arbitration under the Arbitration and Conciliation Act, 1996 would be held at Kolkata only. Thereafter it was prayed for dismissal of the Case.

Thereafter one maintainability petition had been filed and heard and after consideration, the same had been dismissed by the impugned Order.

Being aggrieved by the impugned Order the Petitioner had preferred this instant petition on the ground that the Ld. DCDRF, Alipurduar had erred in law and fact.

                                                                                       Decisions with reasons

The Ld. Advocate for the Petitioner had assailed the impugned Order on the ground that the Petitioner had no office or residence at Alipurduar and therefore the Case was barred for jurisdiction in view of the provisions of section 11(2) of the Consumer Protection Act, 1986 and has relied on the judgment passed by the Hon’ble State Consumer Disputes Redressal Commission, Chandigarh on 14/5/2015 in Ravi Kumar Vs. Unitech Ltd.

Ld. Advocate for the OP, on the other hand, had submitted that the jurisdiction of Alipurduar had been attracted for single reason that all the transactions had been made from Alipurduar. He therefore prays for dismissal of the Case.

The short question that needs to be decided, is whether the jurisdiction of the Ld. Forum of Alipurduar had been attracted or not and whether the Ld. Forum had been justified in passing the impugned order. The Ld. Forum vide its impugned Order had categorically stated that the transactions leading to the purchase of the flat had been initiated from the banks of Alipurduar and had thus opined in favour of the jurisdiction at Alipurduar. On the other hand, the judgement relied on by the Petitioner is based on facts which are quite different from the instant Case. In fact, the above judgement had even followed the principles in Puran Chand Wadhwa Vs. Hamil Era Textiles reported in IV (2003) CPJ 26 (NC). But in the above decision, the physical aspect of the jurisdiction is sought to be incorporated, whereas the claim for cause of action in the instant proceeding below had been sought on the basis of the transactions initiated by the Opposite Party/Complainant, below. Under the circumstances, the Ld. Forum below does not appear to have committed any illegality, while passing the impugned Order.

As a result, the instant petition fails.

                                                                                       It is therefore

                                                                                        ORDERED

That the petition be and the same is dismissed on contest but without cost.

The impugned Order is thereby affirmed.

Copy of the Order be sent to the Parties free of cost.

Copy of the Order be sent to the Ld. Forum for necessary information.