Tripura

StateCommission

F.A 20/2014

Shri Sekhar Das,Sr.Dy.Manager(Transport) - Complainant(s)

Versus

The Branch Manager & 5 Others. - Opp.Party(s)

Mr.R.Datta,Adv. & Mr.R.Das,Adv

11 May 2015

ORDER

 

 

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

TRIPURA

 

 

APPEAL CASE No.F.A-20/2014

 

Shri Sekhar Das,Sr.Dy.Manager(Transport),

S/O. Lt. Shyamacharan Das, Transport Section,

O.N.G.C. Tripura Asset, Agartala, Tripura,

Pin Code-799014. Presently posted and

Residing at Flat No.A-802, Riddhi Siddhi

Residency, Sector-3, New Panvel, Navi Mumbai.

                    ….    ….    ….    ….    Appellant-complainant.

                  

The complainant appellant is represented by his full blood

Younger brother namely Shri Shubendu Das, S/O. Ltd.

Shyamacharan Das, of Jail Road, Banamalipur, Agartala,

West Tripura being his appointed Attorney.

                      Vs.

1. The Branch Manager,

State Bank of India, O.N.G.C. Colony Branch,

P.O-A.D.Nagar, Agartala, West Tripura.

 

2. The Manager, DEUTSCHE BANK

Brooke House, 9, Shakespear Sarani, Kolkata-700071.

 

3. The Registrar, MCS Ltd. ONGC Offer,

Shri Padmavathi Bhawan,

Plot No.93, Road No.16,

MIDC Area, Andheri East, Mumbai-400093.

Present address : MCS Ltd. office No.21/22,

Ground floor, Kashiram Jamnadas Building,

5,P.D.Mello Road,(Ghadiyal Godi), Mumbai-400009.

 

4. The Company Secretary, ONGCL,

Jeevan Bharati, Tower-II, 124-Indira Chowk,

New Delhi-110001.

 

5. Security and Exchange Board of India,

Investor Grievance and guidance Division,

 Block No-1, Rajendra Bhowan,

Rajendra place, District Centre,

New Delhi-110008.

 

6. Bombay Stock Exchange Ltd.

Flat No.1, P.J.Tower, Dalal Street

Mumbai-400001.

                  ….    ….    ….    ….    Respondents-Opposite parties.

 

 

PRESENT :

       

             HON’BLE MR.JUSTICE S.BAIDYA,

             PRESIDENT,

             STATE COMMISSION

                          

                  MRS. SOBHANA DATTA,

             MEMBER,

               STATE COMMISSION.

               

 

For the Appellant    :      Mr.R.Datta,Adv. & Mr.R.Das,Adv.

          For the respondents   :   Mrs.P.Chakraborty,Adv., Mrs.P.Dhar,Adv.,

                                             Mr.S.Choudhury,Adv. & Mr.R.Dasgupta,Adv.

                                             

Date of Hearing         :     26.03.2015.

Date of delivery of Judgment  :

             

 

J U D G M E N T

 

S.Baidya,J,

            This appeal filed on 14.08.2014 by the complainant-appellant-Shri Sekhar Das, Sr.Dy.Manager (Transport) under Section 15 of the Consumer Protection Act., 1986 is directed against the judgment and order dated 23.05.2014 passed by the Ld. District Consumer Disputes Redressal Forum, (in short District Forum), West Tripura, Agartala in case No.C.C-53 of 2009 whereby the Ld. District Forum dismissed the complaint on the question of lack of territorial jurisdiction.     

2. The case of the appellant-complainant as narrated in the memo of appeal, in brief, is that the appellant is an employee of ONGC and was holding the post of Sr. Transport Officer at the relevant time and now the appellant is holding the post of Dy. Manager (Transport). It is also stated that on 11.03.2004 the complainant was posted at Transport Section,ONGC Tripura Asset, Agartala and is now posted at Transport and Shipping Office, ONGC, Asia Publishing House, Calicut Street, Ballard Estate, Mumbai -400001 and residing at Flat No. A-802, Riddhi Siddhi Residency, Sector-3, New Panvel, Navi Mumbai and thus, the appellant is represented by his full blood younger brother namely Shri Shubendu Das residing at Jail Road, Banamalipur, Agartala, being his appointed Attorney.                                                 
3. It is also stated that while the appellant was posted at Transport Section, at that time, he applied for loan amounting to Rs.2,00,000/- to the Branch Manager, State Bank of India, O.N.G.C. Colony Branch for purchasing 350/- nos. of shares of ONGC against Employee’s quota on 11.03.2004 and as per terms of the loan, the respondent No-1 sanctioned loan of Rs.2,00,000/- and the appellant also had debited Rs.62,500/- in his saving account No.1019357832-7 and accordingly, the respondent No-1 issued him a Demand Draft No.906556 on 11.03.2004 for an amount of Rs.2,62,500/- only in favour of ESCROW ACCOUNT-GOI offer ONGC Employee and thereafter, the appellant applied for 350 nos. ONGC shares under ONGC Employee’s quota vide bid application No.88963054 dated 11.03.2004 and submitted bid amount of Rs.2,62,500/- in the form of said Demand Draft and the depository participant was Karvy Consultant Ltd. and the Beneficiary Account No.13520840, but it is very much unfortunate and a matter of regret that the shares of the appellant were not allotted against his application and the amount was also not credited to his account and in this regard, the appellant sent so many E-mail to the respondent No-3, but no response was received by him and at the same time, the appellant also submitted several representations time to time to the O.Ps claiming his rightful demand, but of no result.
4. It is also stated that on 22.11.2004 the appellant wrote a letter to the respondent No-3, the Registrar, MCS Ltd. narrating everything in details for allotment of his shares, but in vain and thereafter, on different dates the appellant also wrote letters to Company Secretary, ONGC and other O.Ps time to time ventilating his grievances, but in vain.
5. It is also stated that in the meantime, the complainant-appellant started to repay his loan to SBI at the rate of 4,720/- per month w.e.f. April, 2004, but unfortunately the appellant did not receive the said 350 nos. ONGC shares as MCS Ltd. did not issue the same in favour of the appellant on the allegation that in the Demand Draft some mistake was there.
6. It is also stated that on 10.01.2008 the appellant received a letter from Deutsche Bank A.G., Kolkata Branch intimating that the Demand Draft submitted with the application has been made payable in a wrong location by the issuing Bank i.e. the SBI, ONGC Colony Branch, Agartala which resulted in dishonor of Demand Draft by the State Bank of India, respondent No-1. It is further stated that the appellant never received any information before 10.01.2008 regarding rejection of application submitted by him and being indignant filed a complaint before the Ld. District Forum, West Tripura, Agartala which was registered vide case No.C.C.53/2009 and the Ld. Forum after a long time passed the judgment dated 23.05.2014 dismissing the complaint on the question of lack of jurisdiction.             
7.  That being aggrieved by and dissatisfied with the impugned judgment, the complainant being the appellant has preferred the instant appeal on the grounds that the Ld. Forum failed to consider that under Section 11 of the C.P.Act ,1986 the complaint lodged before the Ld. District Forum is legally entertainable, that the Ld. Forum failed to appreciate that the cause of action first arose at Agartala and as such, the District Forum, West Tripura, Agartala has ample jurisdiction to entertain the complaint, that the Ld. Forum failed to consider that the appellant has filed the complaint for negligence and deficiency in service on the part of the respondent No-1 who issued the Demand Draft payable in a wrong location for which the demand draft was dishonoured and the bid application was not accepted and the appellant has been deprived in not getting ONGC shares due to the negligence and deficiency in service of the respondent No-1. The further ground of appeal is that the Ld. Forum ought to consider that the case of the appellant is also not regarding the share, but regarding the negligence and deficiency in service on the part of the respondent No-1 for which the appellant did not get his shares of ONGC under Employee’s quota, meaning thereby, the fact in issue did not even touch the matter of share and as such, the conditions as laid down in the bid application form is not binding upon the appellant, but the Ld. Forum failed to appreciate the same and passed the impugned judgment and hence, the appellant has preferred the instant appeal praying for setting aside the impugned judgment with a view to send back the case on remand to the Ld. Forum with a direction to settle the dispute on merit.          

Points for consideration.

8.       The points for consideration are (1) whether the Ld. District Forum was proper, legal and justified in holding that the District Forum suffers from the lack of territorial jurisdiction to entertain the complaint under Section 12 of the C.P.Act, 1986 and (2) whether the judgment and order dated 23.05.2014 which is under challenge in this appeal should be set aside or otherwise as prayed for.       

                       

 

Decision with Reasons.

9.  Both the above mentioned points are taken up together for the sake of convenience and brevity.
10. The learned counsel for the appellant-complainant submitted that the Ld. District Forum by the impugned judgment held referring to the jurisdictional clause mentioned in the bid-cum-application form that only the Courts in Delhi have got jurisdiction to entertain the case and not the Court including the Tribunal and the Consumer Fora  in Tripura. He also submitted that under Section 11 of the C.P.Act, 1986, the District Forum, West Tripura, Agartala has got ample territorial jurisdiction to entertain the complaint filed under Section 12 of the C.P.Act, 1986 as the office of the respondent No-1 (Branch Manager, SBI ONGC Colony Branch, Agartala, West Tripura) and the branch office of the respondent No-4 (The Company Secretary,ONGCL) are located within the territorial jurisdiction of the District Forum, West Tripura, Agartala and as such, the complaint under Section 12 of the C.P.Act, 1986 is very well legally maintainable before the Ld. District Forum, West Tripura, Agartala, but the Ld. District Forum by the impugned judgment has been pleased to hold otherwise and as such, it is not sustainable in law.  
11. The learned counsel for the appellant also submitted that the appellant-complainant filed the complaint seeking redresses against all the O.Ps, but the complainant as P.W.1 categorically stated in his cross-examination that his claim is only against the O.P. No-1 for deficiency in service. He also submitted that as the relief sought for is only against the respondent-O.P. No-1 on the ground of deficiency in service, the complaint under Section 12 of the C.P.Act is legally entertainable in the District Forum, West Tripura, Agartala and therefore, the jurisdictional clause embodied in the bid-application form conferring jurisdiction only on the Courts in Delhi is not applicable in the instant case, but the Ld. District Forum wrongly and erroneously laying stress upon the said jurisdictional clause passed the impugned judgment holding that the District Forum, West Tripura suffers from the lack of territorial jurisdiction to entertain the complaint which is not sustainable in the eye of law and is liable to be set aside.   
12. He also submitted that the respondent-O.P. No-2 to 6 are all formal parties against whom the complainant-appellant has practically claimed no relief. He also submitted that admittedly, the appellant-complainant submitted bid-application form for getting 350 nos. of shares of the ONGC Ltd. on Employee’s quota and the said shares were practically not allotted due to the negligent and deficient act of the respondent-O.P. No-1 by way of making a wrong endorsement on the Demand Draft for an amount of Rs. 2,62,500/- payable at Bazar Danga S.A.B., Murshidabad Code No.8854 (Drawee Branch) instead of SBI, Sr. Branch, Kolkata. He also submitted that for the aforesaid negligence and deficiency in service on the part of the respondent No-1, the appellant being the complainant filed the complaint under Section 12 of the C.P.Act before the Ld. District Forum, West Tripura, Agartala, but the Ld. District Forum failed to appreciate this facts and circumstances of the case and wrongly passed the impugned judgment holding that the District Forum suffers from the lack of territorial jurisdiction to entertain the complaint and as such, the impugned judgment is not sustainable in law and should be set aside.     
13. The learned counsel for the complainant-appellant further submitted that for the negligent and deficient act of the respondent-O.P. No-1, in one hand, the appellant-complainant did not get the allotment of said shares on Employee’s quota, and on the other hand, till now the appellant-complainant did not get back the refund of the said demand draft amount of Rs.2,62,500/- and thereby, the appellant-complainant has suffered a loss of Rs.13,72,125/-. He also submitted that not only so, neither of the O.P.-respondents ever discloses as to where the said demand draft bearing No-906556 dated 11.03.2014 for Rs.2,62,500/- is now lying.
14. The learned counsel for the appellant also submitted that for submission of bid-application form for purchasing 350 nos. of shares of ONGCL on Employee’s quota, the appellant had to take a loan of Rs.2,00,000/- from the SBI, ONGC Colony Branch, Agartala and the said Branch started realizing the loan amount with interest @ Rs.4,720/- per month w.e.f. April, 2004. He then submitted that if the respondent-O.P. No-1 would properly issue the said Demand Draft for Rs.2,62,500/- drawn on SBI, Sr. Branch, Kolkata, the appellant-complainant would get an allotment of ONGC shares of 350 in number, but due to the negligent and deficient act of the respondent No-1, the bid-application form of the appellant-complainant was not accepted and the shares were also not allotted accordingly, in favour of the appellant-complainant for which the appellant has suffered a loss of huge amount. He also submitted that be that as it may, the Ld. District Forum dismissed the complaint being not maintainable on the point of jurisdictional clause which not being sustainable in law, should be set aside by way of allowing the appeal and sending back the case on remand to the Ld. District Forum for adjudication of the matter in dispute finally.  
15. The learned counsel for the respondent-O.P. No-1 submitted that the respondent No-1 issued the Demand Draft as per requisition of the complainant. She also submitted that the appellant-complainant is, not only an educated person, but also was holding a responsible post in the ONGC Tripura Asset, Agartala at the relevant time. She also submitted that it was incumbent upon the appellant to verify the Demand Draft when it was handed over to the appellant by the respondent No-1 whether the particulars contained in the Demand Draft are properly printed or not. She also submitted that the respondent No-1 was never informed either by the appellant or by the respondent No-2 (The Manager, Deutsche Bank) or the respondent No-3 (The Registrar, MCS Ltd.,ONGC Offer) regarding the alleged dishonor of the Demand Draft due to the alleged mistake of the name and address of the drawee bank. She also submitted that had the respondent No-1 been informed regarding the alleged mistake, the respondent No-1 would take proper step then and there to rectify the same. She also submitted that till the filing of the complaint, the respondent No-1 was in dark about the alleged mistake. She also submitted that as the Demand Draft was issued as per requisition for the appellant-complainant, there was no negligence and deficiency in service on the part of the respondent-O.P. No-1. Not only so, the said demand draft till now has not been returned to the respondent No-1 and the appellant-complainant also could not show by producing any document that the name and address of the drawee bank was erroneously printed in the said Demand Draft and therefore, the alleged claim of the appellant-complainant against the respondent-O.P. No-1 is not legally entertainable and accordingly, the Ld. District Forum rightly dismissed the complaint.
16. The learned counsel for the respondent-O.P. No-2 submitted that O.P. No-2 was appointed as an ESCROW banker to IPO of ONGC share and further submitted that the Demand Draft submitted by the appellant-complainant along with bid-application form was dishonoured being payable in a wrong location and bid application submitted by complainant was not accepted. She also submitted that the respondent No-2 was only entrusted for collection of forms and cheques from the brokers and presenting the same to the drawee bank for collection thereof. She also submitted that the respondent No-2 informed the complainant on 28.11.2007 about the dishonor of Demand Draft and the said fact was also brought to the notice of Karvy Consultant. She also submitted that the bid-application form along with dishonor Demand Draft was sent to the respondent No-3 ( The registrar, MCS Ltd.) who was entrusted to allot the share of the ONGC and refund of the money as per letter dated 23.01.2004 (Annexure-R.1). She also submitted that the respondent No-2 was not entrusted either to allot share of ONGC or to refund the amount of the Demand Draft to the applicant and this job was entrusted only to the respondent No-3 and as such, the respondent No-2 is/was in no way responsible for non-allotment of alleged shares in favour of the appellant-complainant and also non-making of refund of the amount of the Demand Draft to the complainant and therefore, there is/was no deficiency in service on the part of the respondent No-2.
17. The learned counsel for the O.P.- respondent No-2 also submitted that the MCS Ltd.(O.P.No-3) as per letter dated 23.01.2004 issued by the Government of India was entrusted as Registrar to issue allotment of shares of ONGC and also to make refund of the demand draft and cheque to the applicant as cheque or demand draft return-cases. She also submitted that the O.P. No-3 was performing the said job till 01.02.2005 and thereafter M/S Karvy Consultant Ltd. took the role of the O.P. No-3 on this issue. She also submitted that in view of the above, Karvy Consultant Ltd. is, obviously, a necessary party. She further submitted that the O.P. No-2 in the written objection specifically stated the same, but the Ld. Forum did not give any finding in the impugned judgment regarding the non-joinder of M/S Karvy Consultant Ltd. as necessary party, rather the Ld. Forum dismissed the complaint holding that the District Forum suffers from lack of territorial jurisdiction as per mandatory clause contained in bid application form regarding jurisdictional point in case of any dispute on this issue. She also submitted that however, for non-joinder of M/S Karvy Consultant Ltd. as necessary party, the case of the complainant must fail as the complainant, in spite of such plea of defect of non-joinder of necessary party in the written objection of O.P. No-2, did not take any step to implead M/S Karvy Consultant Ltd. as party to the complaint.   
18. The learned counsel for the respondent-O.P. No-3 submitted that the appellant-complainant being a prospective investor is not a consumer under Section 2(1)(d) of the C.P.Act, 1986 in view of the principle of law enunciated in the decision reported in 1994(4) SCC 225 in between Morgan Stanley Mutual Fund Vs Karthik Das. He also submitted that the amount of Rs.2,62,500/- claimed to be deposited by the complainant by Demand Draft was never forwarded by the schedule bank to the O.P.-respondent No-3 being Demand Draft return-case. He also submitted that as the bid application form bearing No-88963054 for 350 nos. of ONGC shares as submitted by the complainant was received as a Demand Draft return-case from Deutsche Bank,Kolkata, the same was not considered for allotment of shares of ONGC and therefore, complainant is not a consumer and as such, the District Forum, West Tripura, Agartala is not legally competent authority, having no jurisdiction, to entertain the complaint and accordingly, the Ld. District Forum rightly dismissed the complaint. He also submitted that it was not the duty of the respondent No-3 to inform the appellant-complainant about the dishonor of cheque, rather it was the duty of the banker of the complainant to inform him about the non-remitting of the amount of the Demand Draft to the ESCROW Account and as such, there is no deficiency in service on the part of the respondent No-3 and accordingly, the Ld. District Forum rightly dismissed the complaint.
19. The learned counsel for the respondent No-4, The Secretary, ONGC Ltd. submitted that in view of the principle of law enunciated in the decision of the Hon’ble Supreme Court reported in 1994(4) SCC 225 between Morgan Stanley Mutual Fund Vs Karthik Das, the appellant-complainant who applied for getting shares of ONGC by filing a bid application form along with the Demand Draft of Rs.2,62,500/- for allotment of 350 shares of ONGC Ltd. is merely a prospective investor and therefore,  is not a consumer as provided under Section 2(1)(d) of the C.P.Act, 1986 and as such, the complaint lodged by the appellant-complainant claiming himself as consumer under the C.P.Act, 1986 is not legally entertainable by the Consumer Fora.
20. The learned counsel for the respondent No-4 also submitted that the object of filing bid-application form along with the Demand Draft for an amount of Rs.2,62,500/- by the appellant-complainant to purchase 350 shares of ONGC I.P.O. on Employee’s quota was, in the first instance, to make a profit by way of getting dividend from such investment and, in the second instance, is to sell the said shares later on at a higher rate which is completely a commercial purpose. He also submitted that commercial purpose does not come within the purview of the definition “Consumer” as provided under Section 2(1)(d) of the C.P.Act, 1986 and therefore, on this ground alone i.e. the lodging of the complaint by the complainant-appellant under Section 12 of the C.P.Act before the Consumer Fora is not legally maintainable and the complaint is liable to be dismissed being not legally maintainable  under Section 12 of the C.P.Act, 1986.
21. He also submitted that the bid-application form contained a jurisdictional clause if any dispute arises regarding the offering of shares of ONGC Ltd. He also submitted that as per jurisdictional clause only appropriate court in New Delhi has the jurisdiction of entertain the case if any dispute arises out of this offer of ONGC shares on Employee’s quota. He also submitted that the jurisdictional clause contained in the bid-application form excludes the jurisdiction of any other court as the complainant accepting the said restriction regarding the jurisdiction clause submitted bid-application form along with Demand Draft for purchasing ONGC shares. He also submitted that the Ld. District Forum on the basis of this jurisdictional clause rightly held that the District Forum, West Tripura, Agartala suffers from the lack of territorial jurisdiction to entertain the complaint filed by the complainant-appellant. He also submitted that on the basis of this jurisdictional point, the Ld. District Forum passed the impugned judgment which being found proper, legal and justified should be affirmed and the appeal should be dismissed.
22. On scrutiny of the record, it transpires that in spite of service of notice, the respondent-O.P. No-5 and 6 (The Security and Exchange Board of India) and (Bombay Stock Exchange Ltd.) did not appear either in the District Forum or before this Commission.
23. We have gone through the pleadings of the parties, the evidences, the impugned judgment and the memo of appeal. We have also heard the learned counsels of the parties at length. Admittedly, Government of India decided to disinvest 14,25,93,300 equity shares of ONGC Ltd. by way of offering for sale and out of the same, 10% was reserved for shareholders of ONGC and 10% was reserved for permanent Employees/whole time Directors of ONGC Ltd.. It is an admitted fact that while the complainant-respondent was posted at Transport Section, ONGC Tripura Asset, Agartala, at that time i.e. on 11.03.2004 he applied for 350 nos of ONGC shares under ONGC Employee’s Quota vide bid-application No-88963054 dated 11.03.2004 along with the bid amount of Rs.2,62,500/-in the form of Demand Draft vide No-906556 dated 11.03.2004 and the depository participant was Karvy Consultant and the beneficiary account number was 13520840. It is also admitted position that the bid-application form was not accepted and the shares of ONGC were also not allotted in favour of the complainant-appellant as the Demand Draft so submitted along with the bid-application form by the complainant was dishonoured. It is also admitted fact that the O.P.-respondent No-2 (Deutsche Bank) was appointed by the Govt. of India as the ESCROW Banker and Bankers to the offer for accepting the application and the amount deposited by the applicant at various places. It is also admitted fact that the Govt. of India vide letter dated 23.01.2004 appointed the O.P. No-3, the M/S MCS Ltd. to act as the Registrar to issue the ONGC shares and also to settle the refund amount to the applicants as per terms and conditions contained in the said letter.  
24. It transpires that the O.P. No-3 was working as Registrar share transfer agent of O.P. No-4 (ONGC) till 01.02.2005 and thereafter, the Karvy Consultant Ltd. took over the role of Registrar on that issue. No evidence whatsoever has been adduced by any of the parties before the Ld. District Forum as to the date on which the Demand Draft of the complainant was dishonoured and the bid-application form submitted by the complainant was not accepted. In that view of the matter, it is found clear that Karvy Consultant Ltd. is a necessary party to the dispute concerning the issue of alleged non-allotment of the shares of ONGC under Employee’s quota in favour of the complainant, but the said Karvy Consultant Ltd. has not been made a party to the complaint lodged before the Ld. District Forum under Section 12 of the C.P.Act, 1986. In this regard, we find substance in the submission made by the learned counsel for the respondent No-2,3 and 4.
25. Admittedly, the appellant-complainant did not get returned of the dishonoured cheque. It is also admitted fact that the amount of said Demand Draft for Rs.2,62,500/- is still lying with the O.P.-respondent No-1, SBI,ONGC Colony Branch, Agartala, Tripura.It is also admitted fact that the Demand Draft in question has contained the endorsement payable at Bazar Danga S.A.B.(SBI Code No-8854) although, it is appearing from the copy of the bid-application form that it is payable at SBI, Sr. Branch, Kolkata. It is also admitted fact that the O.P.-respondent No-2 could not collect the Demand Draft amount as per Demand Draft as the same has been made payable in other location by the issuing bank i.e. SBI, ONGC Colony Branch, Agartala.
26. As per letter dated 23.01.2004 issued by the Government of India (Annexure R-1), the O.P. No-3, the Registrar, MCS Ltd. was entrusted to deal with the matter of refund of cheque or Demand Draft  return-cases to the applicants whose bid application for any reason was not accepted and the shares of ONGCL on Employee’s quota was not allotted. It transpires that the Demand Draft for the amount of Rs.2,62,500/- submitted by appellant-complainant along with his bid application form was dishonoured and the O.P. No-2 sent the dishonoured Demand Draft and bid application of the complainant to the O.P. No-3 as cheque or demand draft return-cases. In that case, it was incumbent upon the O.P. No-3 to send back the said dishonoured Demand Draft with necessary endorsement to the complainant-appellant forthwith. But the O.P. No-3 did not return the said Demand Draft to the complainant when his bid application was not accepted. It is, no doubt, a sheer negligence and deficiency in service on the part of the O.P. No-3, the MCS Ltd. who was appointed by the Government of India to act as the Registrar to issue shares of ONGC Ltd. on Employee’s quota and also refund matters. Not only so, M/S Karvy Consultant Ltd. who took over the role of the Registrar, MCS Ltd. after 01.02.2005 also did nothing in this regard. The O.P. No-3 in its written objection (submission) filed in the District Forum has made an attempt to shift its responsibility of returning the dishonoured Demand Draft to the complainant by taking a plea that it was the duty of the O.P. No-1 to inform the complainant that the Demand Draft submitted by him has been dishonoured. But the fact remains that it was the responsibility of the O.P. No-3 to send back this dishonoured Demand Draft to the complainant then and there when his bid application form was not accepted for allotment of ONGCL shares. So, it is found that the O.P. No-3 was at fault.
27. We have gone through the principle of law enunciated by the Hon’ble Supreme Court reported in 1994 (4) SCC 225 between Morgan Stanley Mutual Fund Vs Karthik Das wherein it has been held that an applicant to an issue of securities to whom no shares were allotted is merely a prospective investor and hence, not a consumer within the meaning of the C.P.Act, 1986 and therefore, Consumer Fora has no jurisdiction to entertain any application filed under that Act. In the instant case, the appellant-complainant only submitted a bid-application form along with Demand Draft for Rs.2,62,500/- to purchase 350 nos. of ONGC shares on Employee’s quota. No share of allotment has been made in favour of the complainant. In that view of the matter, following the principle of law enunciated by the Hon’ble Supreme Court mentioned above, we are of the view that the appellant-complainant is a mere prospective investor and not a consumer and therefore, filing of the complaint under Section 12 of the C.P.Act by the complainant-appellant is not legally maintainable before the Ld. District Forum as the complainant does not come within the purview of the definition “Consumer” as provided under Section 2(1)(d) of the said Act.
28. The intention of the appellant-complainant to purchase 350 nos. of ONGC shares on Employee’s quota by filing bid-application form along with Demand Draft dated 11.03.2004 for an amount of Rs.2,62,500/- was to make a profit through dividends and later on to sell the said shares in the market at a higher rate. This makes it clear that the object was purely commercial in nature. The Section 2(1)(d) of the C.P.Act, 1986 precludes commercial purpose from the definition of “Consumer”. The appellant-complainant was posted in Transport Section of the ONGC Tripura Asset, Agartala. So, it cannot be said under any stretch of imagination that the appellant-complainant submitted the said bid application to purchase ONGC shares for the purpose of earning his livelihood by means of self-employment as provided under explanation to Section 2(1)(d) of the C.P.Act. That being the position, it is also clear from the above standpoint that the object of filing the said bid-application form was purely for commercial purpose and as such, the complainant-appellant does not come within the definition of “Consumer” as provided under the said Act. So, the filing of the complaint claiming himself as “Consumer” under the C.P.Act before the District Consumer Dispute Redressal Forum is not legally maintainable.
29. Admittedly, the bid-application form contains a clause on jurisdictional point which provides that  “any dispute arising out of this offer will be subject to the jurisdiction of appropriate Court(s) in New Delhi only”. It transpires that the Ld. District Forum dismissed the complaint by the impugned judgment holding that the District Forum, West Tripura, Agartala suffers from the lack of territorial jurisdiction to entertain the complaint. In this regard, the learned counsel for the appellant-complainant submitted before us that although the appellant as complainant filed the complaint under Section 12 of the C.P.Act, 1986 seeking redress against all the six O.Ps, but the complainant as P.W.1 during the time of his evidence has confined his claim of relief only against the O.P. No-1, the respondent No-1 herein and not against any other respondents. He also submitted that the complainant as appellant has sought for relief in the memo of appeal against the respondent No-1 by way of setting aside the impugned judgment. The learned counsel for the complainant also submitted that the endorsement made by the O.P.-respondent No-1 in the Demand Draft dated 11.03.2004 payable at Bazardanga S.A.B.(SBI Code No-8854) was erroneous rendering the said demand Draft dishonored and consequently, the bid-application form was not accepted and ONGC share was also not allotted. He also submitted that this has been caused due to the negligence and deficiency in service on the part of the O.P. No-1 by way of making such erroneous endorsement, although it ought to have been made payable at SBI Sr. Branch, Kolkata. He also submitted that the complainant has suffered huge amount of loss for the fault of the O.P. No-1 and as such, the jurisdictional clause mentioned in the bid-application form will not come into play in the instant case and from that standpoint, he submitted that the finding of the Ld. District Forum to the effect that the District Forum suffers from the lack of territorial jurisdiction to entertain the complaint, is not sustainable in law and the impugned judgment should be set aside.
30. We must not forget that the said Demand Draft for Rs.2,62,500/- was submitted along with the bid-application form by the complainant with a view to purchase 350 nos. of ONGC shares under Employee’s quota and therefore, it is related to the offer of shares of the ONGC under Employee’s quota. It was not a matter only in respect of a transaction between the complainant and the O.P. No-1. So, the matter concerning the shares of ONGC cannot be excluded from the facts and circumstances of the instant case. That being the position, there is no scope to overlook the jurisdictional clause contained in the bid-application form submitted by the complainant to purchase the shares of ONGC under Employee’s quota on the alleged plea that as the complainant is now seeking relief only against the O.P. No-1, the jurisdictional clause contained in the bid-cum-application form is not applicable in the instant case.
31. In this regard, the decision of the Hon’ble Apex Court reported in AIR 2004 Supreme Court 2154 between New Moga Transport Company (petitioner) Vs United India Insurance Co.Ltd. and others(respondents) is very vital wherein it has been held “ the intention of the parties can be culled out from use of the expressions “only”, “alone” ,“exclusive” and the like with reference to a particular Court. But the intention to exclude a Court’s jurisdiction should be reflected in clear, unambiguous, explicit and specific terms. In such case, only accepted notions of contract would bind the parties. The first Appellate Court was justified in holding that it is only the Court at Udaipur which had jurisdiction to try the suit. The High Court did not keep the relevant aspects in view while reversing the judgment of the trial Court”  
32. From the above cited decision, it is evident that any dispute concerning the offer of ONGC share is entertainable only by the appropriate Court in Delhi. This clause contained in the bid-application form excludes the jurisdiction of any other Court in view of the principle of law laid down by the Hon’ble Apex Court in the cited decision in para-30 of this judgment mentioned above. So, the territorial jurisdiction of the District Forum as provided under Section 11 of the C.P.Act, 1986 has no application in the instant case.
33. The Hon’ble Apex Court has been pleased to hold in a case between Patel Roadways Ltd.,Bombay Vs. Prasad Trading Company reported in AIR 1992 SCC 1514 that it is not open to the parties by an agreement to confer jurisdiction in any Court which it did not otherwise possess under Section 20 of the Code of Civil Procedure. Section 20 of the C.P.C. reads as follows :-

          “20. Other suits to be instituted where defendants reside or cause of action arises- Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction-

          (a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or

          (b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally works for gain, as aforesaid, acquiesce in such institution; or

          © the cause of action, wholly or in part, arises.”  

34. The complainant submitted the bid-application form dated 11.03.2004 accepting the jurisdictional clause contained in the said form and once the jurisdiction point is accepted by the complainant while submitting the bid application form, the complainant has no scope to deny the said jurisdiction being estopped from saying otherwise by the application of Rule of Estoppel and therefore, neither the Section 11 of the C.P.Act, 1986 nor Section 20 of the C.P.C. is found applicable in the instant case.
35. According to the complainant-appellant, due to the negligence and deficiency in service on the part of the O.P. No-1 by way of making a wrong endorsement payable to a different location, the Demand Draft was dishonoured and the bid-application form was not accepted and the ONGC shares for which the complainant made such application was not allotted. This complainant as P.W.1 stated in his cross-examination that it is true that he did not raise any objection when the Demand Draft was handed over to him by the O.P. No-1. This P.W.1 voluntarily stated before the Ld. District Forum in course of his cross-examination that he did not raise any objection at that time as he did not know the code number of the Drawee Branch of the SBI. But going through the photo copy of the said demand Draft lying with the record of the Ld. District Forum, we find that in the said demand Draft there is, not only a mentioning of the code No. of the Drawee Branch, but also the name of the Drawee Branch has been shown as SBI, Bazardanga S.A.B.. The appellant-complainant is not a mere layman. The bid-application form was submitted by the complainant mentioning therein the name of the Drawee Branch as SBI, Sr. Branch, Kolkata although the Demand Draft speaks otherwise. Had the appellant-complainant been sincere and vigilant, the alleged erroneous entry regarding the name of the Drawee Branch as appearing in the Demand Draft would have been detected by him and such dispute would not arise at all as there was a scope for the complainant to get the Demand Draft rectified as per his requisition regarding the name of the Drawee Branch of the bank before submission of the bid application form. In this regard, the O.P. No-1 examined its Branch Manager Smt. Anita Das as D.W.1 who categorically stated in her cross-examination that they have issued the Draft on the bank as per advice of the consumer. The complainant could not show by adducing any cogent and reliable evidence that he made a correct requisition before the O.P. No-1 to issue the Demand Draft mentioning therein the name of the Drawee Branch as SBI, Sr. Branch, Kolkata and not SBI, Bazardanga S.A.B.. Be that as it may, as we are in agreement with the finding of the Ld. District Forum regarding jurisdictional point, i.e. the lack of territorial jurisdiction to entertain the complaint in the District Forum, we are disposing of this appeal accordingly.
36. Relying on the two decisions of the Hon’ble Apex Court cited in this judgment, we are of the view that the complainant-appellant is not a Consumer as provided under Section 2(1)(d) of the C.P.Act, 1986 and the Ld. District Forum, West Tripura, Agartala suffers from lack of territorial jurisdiction to entertain the complaint and as such, the complaint under Section 12 of the said Act lodged by the complainant before the Ld. District Forum, West Tripura, Agartala is not legally maintainable. We are also of the view that the Ld. District Forum, West Tripura, Agartala is proper, legal and justified in dismissing the complaint holding that the District Forum suffers from lack of territorial jurisdiction to entertain the complaint under Section 12 of the C.P.Act,1986. That being the position and going through the impugned judgment, we are also of the view that the finding of the Ld. District Forum given in the impugned judgment calls for no interference by this Commission and as such, the impugned judgment should be affirmed and the appeal is also liable to be dismissed.            

 

 

37. In the result, the appeal fails. The impugned judgment dated 23.05.2014 passed by the Ld. District Forum, West Tripura, Agartala in case No.C.C.53/2009 is hereby affirmed. There is no order as to costs.

 

 

   

                      MEMBER                                             PRESIDENT

                            State Commission                                    State Commission

                                    Tripura                                                      Tripura