Mr.R.K.Bawri, Member – Heard Shri S.P.Sharma, learned counsel for the Appellant and Shri. N.Seikh, Authorised representative for respondent no. 3 (Dynasty Motors, Guwahati). No one appears for Respondent No. 1 (The Premier Automobiles Ltd, Mumbai) or for Respondent No. 2 (Ceat Financial Services Ltd,. Calcutta).

 

2. This Appeal is directed against the order dated 28.5.98 passed by the learned District Forum, east Khasi Hills, Shillong in Complaint Case No. 25(S) of 1997 whereby the Forum dismissed the complaint on the ground of lacking territorial jurisdiction over the case.

 

3. The complaint in question is against the non supply of Fiat Uno Car to the Appellant/Complainant on priority basis by the Respondent/Opposite Party. The Appellant/Complainant’s case, in brief, is that she booked a Fiat Uno Car with Opposite party No.1 through the Opposite Party No.2. She paid a sum of Rs.2500/- vide Demand Draft payable at Vijaya Bank, Calcutta in favour of Opposite Party No.2 on account of margin money and processing fees for obtaining finance of Rs.21,000/- for a period of 6six) months from Opposite Party No.2 for booking of the car. The Opposite Party No.1 had assured that the receipt cum priority cards for the accepted booking will be sent to the applicant within 3 (three) months from the date of closing of the booking.

 

However, thereafter, the complainant herself directly sent the payment of booking advance to the Opposite Party No.1 by Demand Draft for Rs.21,000/- drawn on State Bank of India payable at Mumbai which was duly acknowledged by the Opposite party No.1 by Courier Service from Shillong on 8.8.96. However, the complainant received no further communication from Opposite Party No.1 and inspite of many reminders by the Complainant to the Opposite parties No.1 and 3 they did not reply back to her until 22.1.97 when the Receipt cum Priority Card for Uno car was received by the Complainant regarding maturity of the booking or delivery f the Car despite repeated reminders issued by her. Only on 5.8.97 the Opposite Party No.3 informed the complainant that they were ready to deliver the Fiat Uno Car against City Priority No.10/000023 as soon as she completed certain formalities and sent them the balance payment by Demand Draft. Further vide their intimation letter dated 30.8.97 the Opposite Party No.3 informed the Complainant that the car would be delivered to her within 8 to 10 weeks of receiving full payment.

 

4. In substance, the grievance of the Complainant is that although she paid the booking amount of Rs.21,000/- to Opposite Party No.1 on 8.8.96 she received the Booking-cum-Priority Card only on 22.1.97 whereas she was entitled to get the card only within 3 (three) months from the date of closing of the booking and further that delivery of the Car was inordinately delayed and, going by the letter dated 30.8.97 issued by Opposite Party No.3, would be ready for delivery not earlier than November, 1997 i.e. more than 15 months after booking and that too after repeated reminders and strenuous efforts made by her.

 

5. Being thus aggrieved the Complainant filed the Complaint before the District Forum, Shillong on 22.9.97 and claimed refund of the booking amount of Rs.21,000/- paid to Opposite Party No.1, refund of Rs.2500/- being margin money and processing fees paid to Opposite Party No.2, together with interest thereon as well as compensation for the loss and injury suffered by her due to the negligence of the Opposite parties and costs of the Complaint.

 

6. Before the District Forum, Opposite Parties No.1 & 2 remained absent throughout without steps and failed to take any action to represent their case which proceeded ex-parte against them. The Opposite party No.3 filed a written statement but did not appear either in person or through counsel. The Complainant filed counter affidavit against the written statement filed by the Opposite Party No.3.

 

7. On its part, the District Forum decided that, before entering into the merits of the case, the points that they were required to discuss and determine in the complaint were whether the Forum had jurisdiction to entertain the complaint and whether the complaint was a consumer as per the provisions of the Consumer protection Act and whether any cause of action had arisen at Shillong within the jurisdiction of the Forum.

 

8. In order to appreciate the reasons which led the Forum to come to its conclusion regarding its territorial jurisdiction, the relevant findings of the Forum are reproduced below:

 

“As to entitle this Forum to exercise jurisdiction, the burden is on the complainant to prove that any of the opposite parties carries on business, or personally works for gain, or has a branch of office within the jurisdiction of this Forum or Opposite parties resides within this jurisdiction or even if they do not carry on business or personally works for gain or has a branch office or voluntarily resides, yet acquiesced in such institution or the cause f action, wholly or in part, arises in Shillong. This is as per the provision of Section 11 of the Consumer Protection Act, 1986 as amended. However, in this instant case though the complainant has filed the petition alongwith the copy of the news paper showing that booking centers was at the Office of Opposite Party No.3 at Upland road, Laitumkhrah, Shillong yet the Complainant has filed to prove that as for her case she had booked the said car through Opposite Party No.3, but it is an admitted position that complainant has booked her car through Opposite Party No.2 whose business runs from Calcutta and complainant could not show that any branch office of Opposite Party No.3 also, it is shown that the office was based in Guwahati and nowhere it is stated either in the complaint petition nor in the counter affidavit that Opposite Party No.3 also has a branch office in Shillong, save and except showing the copy of the news paper which we do not incline to take cognizance for the institution of this complaint before this Forum.”

 

9. The finding and conclusion of the District Forum thus was that though the right of the complainant to be consumer may not be disputed but since she had failed to satisfy and prove that the cause of action had arisen in Shillong and since all the Opposite Party are not residing nor carrying on business or having a branch office at Shillong, it was constrained to dismiss the complaint and it was for the complainant to move the appropriate Forum having jurisdiction.

 

10. In the instant Appeal, despite due service of notice along with copy of the memo of Appeal and despite several opportunities having been given, Opposite Party No.1 has filed to give its version of the case and has failed to take any action to represent its case before us. Opposite Party No.2 has filed its written reply/objection to the Appeal for our consideration and prayed for dispensation with the requirement of personal appearance. We have taken this written reply on record and have perused and considered the same. Opposite Party No.3 has filed a written statement in reply to the memo of appeal and has appeared through its Authorized Representative whom we have heard.

 

11. Learned Counsel for the Appellant submits that the learned District Forum has erred in dismissing the complaint on the ground of not having territorial jurisdiction over the case as part of the cause of action did in fact arise at Shillong and, further, the Respondents were carrying on business through their Agent, respondent No.3 who has a branch office at Shillong, within the jurisdiction of the learned District Forum, Shillong.

 

On the other hand, the Authorised Representative of Respondent/Opposite party No.3 supports the findings and order dated 28.5.98 passed by the learned District Forum and prays that the Appeal may be dismissed. Opposite party No.2 too, although not represented, assert in their written reply/objections to the Appeal that the complaint is not maintainable against them and pray for dismissed of the Appeal.

 

12. having perused the order of the learned District Forum and having gone through the entire records of the case and heard the counsel for the Appellant as well as the authorized representative of Respondent No.3 and having perused the written reply/objections to the Appeal filed by the Opposite Party No.2, we are unable to agree with the findings and conclusion of the learned District Forum regarding its territorial jurisdiction. We are of the view that the learned District Forum failed to appreciate the full import of Clauses (b) & (c) of Section 11(2) of the C.P. Act, 1986 and to judiciously apply them to the facts and circumstances of the case.

 

13. For a clear understanding of the case it would, at the outset, be useful to reproduce section 11 of the Consumer Protection Act, 1986 (‘the Act’) which deals with the jurisdiction of the District Forum constituted under the Act:

 

“(1). Jurisdiction of the District Forum- (1) Subject to the other provisions of this Act the District Forum shall have jurisdiction to entertain complaints where the value of goods or services an the compensation, if any, claim does not exceed rupees five lakhs.

 

(2). A complaint shall be instituted in a District Forum within the local limits of 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 or 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 reside, or carry on business or have a 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.”

 

14. We now proceed to examine separately under clauses (a), (b) & (c) of Section 11(2) of the C.P. Act, 1986 whether the District Forum at Shillong had territorial jurisdiction over the Complaint.

 

15. Clause (a): It is not the case of the Appellant that all of the Opposite Parties either actually and voluntarily reside, or carry on business, or have a branch office or personally work for gain within the limits of jurisdiction of the District Forum, Shillong where the complaint was instituted and as such the Appellant was indeed precluded from instituting the Complaint at Shillong under Clause (a) of Section 11(2), C.P. Act, 1986.

 

16. Clause (b): This Clause applies to the case where there are more Opposite Parties than one and postulates that at least any one of them should, at the time of the institution of the Complaint either actually and voluntarily reside, or carry on business, or have a branch office or personally work for gain, within the local limits of the jurisdiction of the Forum where the Complaint is instituted provided further that either permission of the District Forum is obtained with reference to the Opposite Parties who are not actually and voluntarily residing, or carrying on business or having a branch office or personally working for gain within the local limits of the jurisdiction of the Forum where the complaint is instituted or they acquiesce in the institution of the Complaint.

 

17. The Appellant has filed before us along with the Memo of Appeal supported by an Affidavit, a copy of a cutting from the daily newspaper “The meghalaya Guardian” dated 6.2.96 which is an advertisement for booking of Fiat Uno car with inscription :-

 

“Booking Centres at: Dynasty Walford Ltd. G.S. Road, Guwahati Ph: 561526, 560526, Upland Road, Laitumkhrah, Shillong, Ph: 223767……”

 

This advertisement clearly shows the factum of Opposite Party No.3 having a Booking Centre at Shillong for Fiat Uno Cars which are manufactured by Opposite Party No.1 and as such we find that Opposite Party No.3 did indeed carry on business at Shillong by virtue of having a Booking Centre at Shillong and such the first condition of Section 11(2)(b) of the Act that at least one of the Opposite Parties resides, carries on business or, has a branch office or personally works for gain within the Forum’s local limits is satisfied.

 

18. It may be mentioned here that although the Opposite Party No.3 did object to the territorial jurisdiction of the District Forum at Shillong by filing a written statement they failed to take any further action to represent their case before the Forum as required under Section 13 of the C.P. Act, 1986. The Complainant also filed a copy of the advertisement referred to above which showed that the Opposite party No.3 had a Booking Centre for Fiat Uno Cars at Shillong before the Forum along with a petition in support of its plea that the complaint was maintainable in as much as the Opposite Party No.3 although located at Guwahati in the State of Assam carried on business at Shillong and as such the complaint could be instituted in the District Forum at Shillong, pursuant to the provisions of Section 11(2)(b) of the C.P. Act, 1986. However the learned District Forum was not inclined to take cognizance of the advertisement.

 

19. Now turning to the second part of Clause (b), admittedly, in this case, opposite party Nos. 1 & 2 do not reside or carry on business or have a branch office or personally work for gain at Shillong and no permission of the District Forum was given to the complainant to institute the Complaint against them at Shillong.

 

However, as discussed above, the Opposite Party/respondent Nos.1 & 2 neither denied or disputed the allegation contained in the Complaint nor took any action whatsoever to represent their case before the District Forum Shillong at the threshold and as such the Opposite Party Nos. 1 & 2 by their inaction have also acquiesced to the institution of the Complaint at Shillong having accepted the institution without any protest and such acquiescence gives jurisdiction to the District Forum, Shillong by virtue of the last part of clause (b) Section 11(2) of the C.P. Act, 1986.

 

20. There is yet another aspect of the matter viz, the doctrine of waiver. As a general rule, neither consent not waiver nor acquiescence can confer jurisdiction upon a Court or quasi-judicial authority which is otherwise incompetent to try a suit or Complaint but S.21 of the C.P.C. provides an exception, and the defect to as the place of suing and takes the chance of a verdict in his favour, he clearly waives the objection.

 

As held by the Honorable Supreme Court in Hira Lal patni –vs- Shri Kali Nath (AIR 1962 Sc 199 at Pg. 201), Sec 21 of the C.P.C. is a statutory recognition of the principle that the defect as to the place of suing may be waived and, independently of this Section, a defendant may waive the objection and may be subsequently precluded from taking it.

 

21. Section 21(1) of the C.P.C. 1908 states that “No objection as to the place of suing shall be allowed by any appellate or revisional Court unless such objection was taken in the court of first instance at earliest possible opportunity and in all cases where issues are settled, at or before such settlement and unless there has been a consequent failure of justice.”

 

22. Although there is no specific provision in the C.P. Act, 1986 akin to section 21 of the C.P.C. 1908, as held by the Honorable Supreme Court in the case of Fair Air Engineers Ltd. & Ors –Vs- N.K. Modi (AIR 1997 SC 533, at Para 10), Consumer For a established under the provisions of the Consumer Protection Act, 1986 have all the trappings of a Civil Court and judicial authority and the proceedings before them are legal proceedings. As such the spirit of Section 21 C.P.C would apply to the Forums constituted under the C.P. Act, 1986. It may also be observed that Section 11(2) of the Consumer Protection Act, 1986 and Section 20 of the Civil Procedure Code, 1908, are almost identical and as section 20 of the CPC has to read along with section 21 CPC, similarly the spirit of section 21 CPC has to be applied when considering Section 11(2) of the C.P. Act, 1986.

 

            Records of the District Forum show that Opposite Party/ Respondent Nos. 1 & 2 although served with copies of the Complaint did not even enter appearance nor filed any objection or show cause. As stated earlier, even at the appellate stage Respondent No.1 has neither responded to the Memo of Appeal filed by the Appellant nor has it entered appearance or filed any objection/denial despite being given several opportunities and the matter has proceeded ex-parte against them. Thus Opposite Party Nos.1 & 2 has also waived the objection if any, as to the place of suing.

 

23. In view of the above discussions we hold that by virtue of the provisions of Section 11(2)(b) of the C.P. Act, 1986 and, in view of the facts and circumstances of the matter, the District Forum, Shillong has territorial jurisdiction over the complaint and that the complaint was properly instituted before the Forum.

 

24. Clause (c) : Let us now consider clause (c) of Section 11(2) of the Act and also see whether the cause of action in the Complaint had arisen partly or wholly within the local limits of the territorial jurisdiction of the District Forum at Shillong.

 

25. It cannot be disputed that a Consumer Disputes Redressal Forum is competent to entertain a consumer complaint even if only an infinitesimal part of the clause of action arises within its territorial jurisdiction. Now, cause of action arises within its territorial jurisdiction. Now, cause of action, as it well known, is a “bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant” In the case at hand the complainant, who is a resident at Shillong sent her application to purchase the car from Shillong and purchased the Demand Draft for the Booking Advance of Rs.21000/- through the Shillong Branch of State bank of India. The Opposite Party No.1 acknowledged receipt of the demand draft and forwarded its official receipt to the Complaint at Shillong. All Correspondence with the Opposite Parties was made by the Complainant from Shillong. The Intimation letter and Booking Priority card were sent by the Opposite Parties to the Complainant at Shillong. These facts are vital in the information of the contract and in an action for breach as a complaint may be filed either at the place where the contract was made or at the place where it should have been performed and the breach occurred. Whether the contract was to have been performed or the breach occurred at Shillong or not, in view of the above facts it cannot be gain said that the contract was made partly at Shillong and that being so the nexus of the cause of action lay at Shillong and thus part of the clause of action arose at Shillong within the territorial jurisdiction of the District Forum, Shillong.

 

26. We may refer here to the judgment of the Honorable National Commission in the case of Indian Airlines Corporation V. Consumer Education & Research Society, Ahmedabad, (1991 CPJ 681 NC) wherein it was held as under:

 

“In our opinion, it will be much more reasonable to assume that in respect of complaints instituted against a corporation Parliament intended that the Forum before which a complaint is instituted should have either the nexus or accrual of the cause of action within its territory or the location of the principal office of the corporation within its territory.”

 

27. Therefore, we find that the District Forum at Shillong also had jurisdiction to entertain the complaint in view of clause (c) of Section 11(2) of the C.P. Act, 1986.

 

28. In view of the above discussion we hold that the District Forum, Shillong erred in law in dismissing the complaint on the ground of not having territorial jurisdiction over the case. We accordingly set aside the impugned order dated 28.5.98 passed by the learned District Forum at Shillong. We also hold that the complaint is maintainable under the provisions of Section 11 of the C.P. Act, 1986 before the learned District Forum at Shillong and it has jurisdiction to entertain the complaint.

 

29. The question now is whether the Complainant is again to be relegated to the District Forum for deciding the Complaint. Considering that the matter is pending for more than 4 (four) years whereas provision of speedy Redressal of Consumer disputes is one of the avowed objectives of the C.P. Act, 1986 and further that, in any event, the matter has already been heard by us at length in order to appreciate the full facts of the case and that the records of the District Forum are also before us, we deem it proper to dispose of the matter finally, in the interests of justice. No useful purpose will also be served by remanding the case to the District Forum as the Opposite Party No.1 has all along chosen not to take any action to represent its case before the District Forum and the case has proceeded ex-parts against them.

 

30. Now, delving into the merits of the case, let us first consider whether the Appellant/Complainant has been able to prove any negligence of the Opposite Party No.3 i.e. the agent/dealer of Opposite Party No.1, as required under section 14 of the Act. The records show that a sum of Rs. 21,000/- (Rupees twenty one thousand) being deposit for booking of the Car was paid by the Complainant directly to the Opposite Party no.1 viz. The Premier Automobiles Ltd. by Demand Draft dated 8.8.96 payable at Mumbai, receipt of which was acknowledged by the Opposite Party No.1 on 10.8.96. No Cause of action accrued to the Complainant/Appellant against opposite Party No.3 as they were only acting as agents of their Principals i.e. Opposite party No.1 and there was no contractual relationship between the Opposite party No.3 and the Complainant. In such cases, it is well settled that an agent is not liable to make or release any payment and liability if any, lies solely upon the principals. Here we may refer to the case of Bharat Motor –Vs- Usha Rani Samal & Anr reported  in 1(1995) CPJ 33 NC wherein the Honorable national Commission, held that the dealer of a manufacturing company is not liable for refund of the money deposited by the Complainant. Therefore in the instant case, too, no negligence or deficiency in service can be attributed to Opposite Party No.3 and the Complainant is entitled to no relief against opposite party no.3.

 

31. Coming to Opposite party No.2, although the Complainant paid a sum of Rs.2500/- to the Opposite Party No.2 as margin money and processing fees for obtaining finance from opposite party no.2, in fact the Complainant herself did not proceed with the obtainment of the loan and herself paid booking amount of Rs.21,000/- to Opposite Party No.1 which amounted to a ‘direct’ booking and was accordingly reflected as Direct Type of Booking in the Receipt Cum Priority card issued by opposite Party No.1 to the Complainant and all correspondence in the matter was carried out directly by the Complainant with Opposite Parties No.1 7 3 Opposite Party No.2 had no liability to refund the booking advance and had no role to play in the allotment or delivery of the car. Thus no negligence or deficiency of service can be attributed to Opposite Party No.2 and the Complainant can claim no relief against them.

 

32. The last point for consideration is what relief, if any, is the complainant entitled to against the Opposite Party No.1 who, it must be painful reiterated, has remained a silent and distant spectator to the entire proceedings ever since the institution of the Complaint till date and has omitted and failed to take any action to represent its case either before the District Forum or before this Commission.

 

33. The Opposite Party No.1 has neither denied nor disputed the allegations contained in the Complaint. The records reveal that a Demand Draft for Rs.21,000/- being booking advance was received by them from the Complainant on 10.8.96, Receipt-cum-Priority card for Fiat Uno car was issued by them to the Complainant showing type of Booking as ‘Direct’ which was received by the Complainant after more than 5(five) months of making the advance deposit.

 

34. Although the Complainant is also aggrieved that the Opposite Party no.1 had released the vehicle of priority No.26 in May 1997 to some other applicant whereas her vehicle of priority No.23 was released only in August 1997, except for the bare statement made in the Complaint there is nothing on record to substantiate this claim of the Complainant and we are unable to consider the same.

 

35. As regards the alleged delay in delivery of the car which, accordingly to the letter dated 30.8.97 issued to the Complainant by Opposite Party No.3 on behalf of Opposite Party No.1, would be ready for delivery within 8-10 weeks i.e. only around November, 1997, the Complainant’s complaint is that this has caused her severe loss and harassment as she had paid the booking advance as far back as in August 1996 and this intimation dated 30.8.97 too was obtained after undergoing immense hardships and making strenuous efforts and repeated reminders.

 

We have gone through the letters/reminders dated 16.9.96, 10.10.96, 19.11.96, 14.12.96, 15.7.97 & 5.8.97 sent by the Complainant to the Opposite Party Nos.1 & 3. The first reply in response thereto and that too issued by the Opposite Party No.3 is dated 5.8.97 i.e. almost one year after the Complaint initiated the long-drawn correspondence. Opposite party No.1 remained silent throughout and did not even reply to a single letter, not to speak of taking any action thereon and failed to allot the booked car for more than one year from the date of accepting the booking deposit and that too after repeated requests and reminders from the Complainant. Moreover the Opposite party No.1 has retained the deposit amount of rs.21,000/- ever since 10.8.96 without any justification. We are satisfied that the grievances of the Complainant in this regard are well-founded and sustainable and that the Opposite Party No.1 been negligent in its services, causing loss and injury to the Complainant.

 

36. In view of the above discussion, we direct the Respondent/Opposite Party no.1, The Premier Automobiles Ltd., to return to the Appellant/Complainant the sum of Rs.21,000/- (Rupees twenty one thousand) collected by them from the Appellant as Booking Advance for Fiat Uno Car together with interest thereon calculated at 18% (Eighteen percent) p.a. from the date of receipt i.e. 10.8.96 till the date of repayment of the said sum and also to pay a sum of Rs.5000/- (Rupees Five thousand) to the Appellant/Complainant as compensation for the loss and injury suffered by the Appellant due to the negligence of the Respondent/Opposite Party No.1 and a further sum of Rs.2000/- (Rupees two thousand) as costs, within 30 (thirty) days of receipt of an authenticated copy of this order.

 

The Appeal is disposed of with the above directions.