Delhi

StateCommission

CC/892/2017

N.S AGARWAL & ANR. - Complainant(s)

Versus

SUPERTECH LTD. - Opp.Party(s)

AJAY K SRIVASTAVA

11 Jul 2017

ORDER

IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL, COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments :11.07.2017

Date of Decision :13.07.2017

Complaint  No.892/2017

 

IN THE MATTER OF:

 

1.Shri N.S. Agarwal,

S/o. Late Shri C.L. Agarwal,

R/o. Neeti Khand-III,

Indira puram, Ghaziabad,

U.P.-201010.

 

2. Shri Ashmant Agarwal,

S/o. Shri N.S. Agarwal,

R/o. Neeti Khand-III,

Indira puram, Ghaziabad,

U.P.-201010.                                                                                              ……Complainant

                                                Versus

 

M/s. Supertech Limited,

Registered Office at: 1114, 11^th Floor,

Hemkunt Chamber, 89, Nehru Place,

New Delhi. Through its Director                                                                        ….Opposite Party

 

CORAM

HON’BLE SH. O.P.GUPTA, MEMBER(JUDICIAL)

HON’BLE SH. ANIL SRIVASTAVA, MEMBER

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                               Yes/No

2.      To be referred to the reporter or not?                                                                                                        Yes/No

Present: Shri  Vikram Singh, counsel for complainant.

 

PER  : HON’BLE SHRI ANIL SRIVASTAVA, MEMBER

            Shri N.S. Agarwal and another has filed a complaint before this Commission under Section 17 of Consumer Protection Act, 1986 against M/s.  Supertech Limited hereinafter, has referred as to complainant and OP respectively, alleging deficiency of service, praying for the relief as under:-

1. Pay an amount  of Rs.7,50,000/- (Seven lacs fifty thousands) for deficiency in service.
2. Pay an amount of Rs.7,50,000/- (Seven lacs fifty thousands) for unfair trade practice.
3. Pay an amount of Rs.26,00,000/- (Twenty six lacs) for delay in possession @24% per annum from October, 2013 till date and future interest till the disposal of the complaint.
4. Pay an amount of Rs.5,00,000/- (Five lacs) for mental and physical torture and harassment.
5. Pay an amount of Rs.1,50,000/- (One lacs fifty thousands) for  legal expenses.

Facts of the case are these.

Shri N.S. Agarwal the complainant wishing to own a house  and being lured and persuaded  by the OP applied for a flat with the OP in their CAPETOWN project at Sector-74, Noida. The complainant had also paid booking amount of Rs.1,00,000/- Total sale consideration was Rs.36,03,485/-. As per the agreement arrived at between them 95% of the sale consideration  was to be paid by the complainant and remaining 5% was to be paid at the time of possession.

Having regard to the terms and conditions of the agreement the complainant had paid the amount he was required to do as per the  agreement. However, the OP demanded for more money. This demand was not in confirmiting with the agreement. The complainant accordingly resisted making the payment.  Despite that the OP precipated his demand for more money.  Besides the complainant had also found that the construction of the flat has not been completed and even the completion certificate has not been obtained from the competent authority.  Since, the OP was not responding to their appeal not to demand any money  outside the terms of the agreement, he has filed a complaint before this Commission for the redressal of his grievances.

The matter came up before us for admission hearing on 11.07.14 when Shri Vikram Singh, Advocate advanced his arguments. We have also perused the records.

In the first instance we notice that this Commission  does not enjoy the jurisdiction to try and hear this case keeping in view the provision of Section 17 of the Consumer Protection Act. Provision of Section 17 of the Consumer Protection Act, 1986  posits as under:-

{(2) A complainant shall be instituted in a State Commission within the limit of whose jurisdiction:-

1. The opposite party or each 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 for gain; or 
2. Any of the opposite parties, where there are more than on, 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 for gain, provided that in such case either the permission of the State Commission is given or the opposite parties who do not reside or carry on business or have a branch office or personally works for gain, as the case may be, acquiesce in such institutions; or
3. The cause of action, wholly or in part, arises.}

On a plain reading of the afore extracted provision it becomes clear to us that a complaint under the Act can be instituted before a State Commission within limits of whose jurisdiction any one of the three situations contemplated in the provision is shown to exist. The use of the word `of’  at the end of sub-clauses (a) & (b) of the said sub-section is significant and reflects the object of the legislation, leading to the conclusion that each of the three contingencies enumerated therein is independent of each other And not cumulative.

          The expression `casue of action’ is neither defined in the act nor in the Code of Civil Procedure. However, by virtue of a catena of decisions of the Supreme Court, wherein the meaning of the said expression in legal parlance has been explained, the expression has been held to be of wide import. Generally, the expression `cause of action’ is described as `bundle of facts’ which the petitioner must prove, if traversed, to entitle him to the relief prayed for.

          It would be manifestly clear from bare reading of the afore mentioned provision of the Act that the complaint can be filed before the fora where the cause of action arose. In the subject the cause of action arose first at Dubai and thereafter at Mumbai.

          Again in Navinchnadra N. Majithia s.State of Maharashtra & Ors (2007) 7 SCC 640, explaining the  import of the said expression, in his concurring judgement, K.T.Thomas J. observed as under:

          “The collection of the words “cause of action, wholly or impart, arises” seems to have been lifted from Section 20 of the Code of Civil Procedure, which section also deals with the jurisdictional aspects of the courts. As per that section the suit could be instituted in a court within the legal limits of whose jurisdiction the “cause of action wholly or in part arises”. Judicial pronouncements have accorded almost a uniform interpretation of the said compendious expression even prior to Fifteenth Amendment of the Constitution as to mean “the bundle of facts which would be necessary for the plaintiff to prove, it traversed, in order to support his right to the judgement of the court.”

          In Read V. Brown Lord Esher, M.R. [(1988) 22 QBD 125:58 LJOB 120:60LT 250 (CA)],  adopted the definition for the phrase “cause of action that it meat

          “every fact  which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgement of the court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved”.

          In Kandimalla Raghaviah & Co. Vs. National Insurance Co. Ltd. & Anr., (2009) 7 SCC 768, the Hon’ble Supreme Court has held that “cause of action” is cause of action which gives occasion for and forms the foundation of the suit.

The Ld. Counsel for the complainant had also argued that this Commission enjoys a jurisdiction by virtue of agreement arrived at between them.  It is a trite law that agreement does not over ride the provisions of the Act. We are unable to except the arguments so advanced. We accordingly order return of the complaint to be filed before appropriate court of jurisdiction. We order accordingly.

           Copy of this order be sent to both the parties free of cost as contemplated under the Consumer Protection Rules 1987 read with Consumer Protection Regulations 2005.

          File be consigned to Record Room.

 

 

(ANIL SRIVASTAVA)                                                  (O.P.GUPTA)

MEMBER                                                                     MEMBER (JUDICIAL)

 

 

 

 

 

 

 

 

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