Present (1) Nisha Nath Ojha,
District & Sessions Judge (Retd.) President
(2) Smt. Karishma Mandal,
Member
Date of Order : 30.08.2016
Nisha Nath Ojha
- In the instant case the Complainant has sought for following reliefs against the Opposite party:-
- To direct the opposite parties to execute the sale deed in favour of the complainant.
- To direct the opposite parties to refund the amount to the complainant at present market rate of the plot in question with litigation costs.
- The facts of this case lies in a narrow compass which is as follows:-
It has been asserted by the complainant that he entered in two agreements (vide annexure – 1) with opposite party no. 1 company namely Leo Housing Pvt. Ltd. on 24.01.1991 with respect to farm house no. 201 and 202 (later on farm no. 157 and 159) at a consideration amount of Rs. 95,000/- for each to be liquidated in five years at monthly installment of Rs. 1,250/- + 15,000/- in lum - sum after completion of the said period.
It has been further stated that complainant deposited all together a sum of Rs. 1,07,500/- during the period of 91 to 95 against the said two plots which is equal to full consideration money for one plot and thereafter the complainant demanded certain documents to continue the installment which was not supplied by the opposite party and as such the complainant kept the installment in abeyance.
It is further case of the complainant that after laps of years, the company failed to supply the documents and as such the complainant was left with no option but to demand the refund of the money deposited by her for which she has also given a legal notice to the opposite party dated 16.08.2003. Again the complainant vide annexure – 2 has requested the opposite party to refund aforesaid the amount. The opposite party replied the aforesaid legal notice of the complainant (annexure – 2) vide legal notice dated 19.08.2009 which has been annexed as annexure – 3. When the amount of the complainant was not returned then he sent legal notice (vide annexure – 4 and 5). The complainant has asserted that despite the aforesaid notice etc. neither sale deed has been executed in her favour nor her money has been returned at market rate.
On behalf of opposite party no. 2 a written statement ( version of opposite party no. 2) has been received through post stating therein that this forum has no jurisdiction to entertain this case because as per Para – 1 and 2 of the averment of the complaint and agreement dated 24.01.1991 the entire cause of action arose at Chennai and thus District Consumer Dispute Redressal Forum Chennai (South) has jurisdiction to entertain this case. The second objection taken by opposite parties is that this complaint is hopelessly bared by limitation because the complainant has executed agreement on 24.01.1991 and the amount of Rs. 95,000/- had to liquidated in five years at monthly installment of Rs. 1,250/- which expired on 24.01.1996 and thus this complainant would have filed complaint on or before 24.01.1998 but this complaint has been filed after laps of eleven years in 2009 and thus this case is hopelessly bared by limitation.
It has been further asserted by opposite party no. 2 in Para – 9 of the written statement that the complainant never demanded any document from opposite party and there is no deficiency in the service on the part of opposite parties. In Para – 8 of aforesaid written statement of opposite party no. 2 it has been asserted that “the second opposite party categorically denied the averment contained in Para – 2 of the complaint. The complainant has remitted Rs. 53,750/- during the period from Jan 91 to March 95. Geetha Modi has remitted Rs. 53,750/- during the period Jan 91 to March 95. The complainant has got no right to club both amounts since agreements were entered separately and Geetha Modi and Rekha Modi paid amounts separately. After March 95 the complainant committed default in paying monthly installments. The complainant also shifted her residence from Chennai to Patna without any intimation, any averments contained in Para – 2 contrary to the above facts is hereby denied as false.”
On behalf of opposite parties a separate “ proof affidavit of M. Jothi Prakasham @ MJFLN Leo Muthu” have been filed in the form of affidavit repeating the same fact and explaining the relevant fact which is also on the record.
On behalf of complainant a reply cum written argument has been filed stating therein that no doubt the agreement was entered in Chennai and part of installment was also paid in Chennai and opposite party did not have branch at Patna although the complaint can be filed at Consumer Forum Patna with the leave of court or Forum where the complainant lives. It is also submitted that as the case has been admitted hence the leave of the court may be presumed to have been granted. It has been also submitted by the complainant that as the opposite party had played the fraud with the complainant hence limitation does not apply.
We have narrated the fact of the case briefly pleaded by both the parties.
Heard the learned counsel for the complainant no one appeared on behalf of opposite party.
As on behalf of opposite party the question of territorial jurisdiction as well as limitation has been raised hence we think it proper to decide the question of territorial jurisdiction because if this Forum lacks territorial jurisdiction then this Forum has no right to decide either question of limitation or merit of this case.
No purpose will be served in repeating the same fact again and again.
It appears to be an admitted case that agreement vide annexure – 1 was entered at Chennai. The part of installment was also paid at Chennai and opposite parties did not have any branch at Patna. The legislature has enacted “The Consumer protection Act 1986” and Section 11 of the aforesaid Act defines the jurisdiction of the Forum which is as follows.
“Subject to the other provisions of this act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed [ does not exceed rupees twenty lakhs].
(2) a complaint shall be instituted in a District Forum within the local limits whose jurisdiction, -
(a) 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
(b) Any 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, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not resides, or [carry on business or have branch office], or personally work for gain, as the case may be, acquiesce in such institution or
(c) The cause of action, wholly or in part arises.”
If we examined the facts of this in the light of the aforesaid legal provisions then real picture emerges.
It is an admitted case that the agreement was entered in Chennai and part of installment was also paid in Chennai and opposite party did not have branch at Patna although the complaint can be filed at Consumer Forum Patna with the leave of court or Forum where the complainant lives.
The learned counsel for the complainant has submitted that as the case has been admitted hence it will be presumed that the court has granted leave, is not tenable under law because no court has jurisdiction to act against any law enacted by competent legislature.
In view of the discussion made above, we find and hold that in terms of Section 11 of the Consumer protection Act 1986 referred above this Forum has got no jurisdiction to decide this case.
We want to make it clear that as we have no territorial jurisdiction to decide this case hence we have not expressed our mind with regard to other question raised by parties. However it is open for the complainant to file appropriate application before appropriate court or forum for redressal of his grievance if any.
In view of the aforesaid facts and circumstances we find no substance in this case and as such this complaint stands dismissed for want of territorial jurisdiction but without costs.
Member President
