DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> CC. No. 354 of 16-11-2009<br /> Decided on : 08-02-2010 <br /> <br /> Master Parteek Kumar Goyal S/o Sh. Parveen Kumar, R/o SCF 40, Opposite Rose Garden, Goniana Road, Bathinda.<br /> .... Complainant<br /> Versus<br /> <br /> 1.The Rayat Educational and Research Trust through its Chairman/Secretary, Railmajra, District Nawanshahar (Near Ropar)<br /> 2.The Rayat Institute of Engineering and Information Technology, V.P.O. Railjajra, District Nawanshahar through its Principal/Director Sh. R P Singh Suker-Chakia.<br /> 3.The Punjab Technical University, Jallandhar through its Vice Chancellor<br /> 4.State of Punjab through Secretary, Ministry of Education, Punjab Chandigarh (Opposite party Nos. 3 & 4 deleted vide order dated 17-12-2009)<br /> ... Opposite parties<br /> <br /> Complaint under Section 12 of the Consumer Protection<br /> Act, 1986.<br /> <br /> QUORUM <br /> <br /> Ms. Vikramjit Kaur Soni, President<br /> Dr. Phulinder Preet, Member<br /> Sh. Amarjeet Paul, Member<br /> <br /> For the Complainant : Sh. Jai Gopal Goyal, Counsel the complainant <br /> For the Opposite parties : Sh. Sandeep Singh,counsel for<br /> opposite party Nos. 1 & 2. <br /> <br /> O R D E R<br /> <br /> VIKRAMJIT KAUR SONI, PRESIDENT <br /> <br /> 1. In brief, the case of the complainant is that he took admission in the college of opposite party No. 1 in the session of CET 2008 and deposited Rs. 41,795/- on 26-08-2008. Thereafter he got admission in college B K Birla Institute of Engineering and Technology, Pilani (Rajasthan). He made many requests to the opposite parties to refund the amount deposited, but to no effect. Hence, this complaint for issuing directions to the opposite parties to refund Rs. 41,795/- with interest @18% P.A. with damages of Rs. 50,000/- and Rs. 11,000/- as costs.<br /> 2. Instead of filing reply, an application has been moved by the opposite parties for dismissal of the complaint on the ground that earlier complainant filed by the complaint against the same parties for the same cause of action. It has been pleaded that said complaint was dismissed in default for non-appearance of the parties at the stage of final arguments. The complainant had moved an application for its restoration which he withdrew without getting permission to file a fresh complaint. It has been further pleaded that this Forum has no territorial jurisdiction to entertain and try this complaint. Therefore, it is liable to be dismissed.<br /> 3. In reply to the application, the complainant has pleaded that a fresh complaint after dismissal of earlier complaint on the same cause of action is maintainable.<br /> 4. We have heard learned counsel for the parties and have gone through the entire record of the case.<br /> 5. Learned counsel for the complainant submitted that fresh complaint is maintainable if an earlier complaint on the same cause of action and against the same parties dismissed in default for non-appearance of the parties. In support of his contention, he placed reliance upon New India Assurance Co. Ltd., Vs. R. Srinivasan 2000(1) CPC 334 wherein it was held by the Hon'ble Supreme Court that :-<br /> “A. Consumer Protection Act, 1986 – Section 13(4) – Insurance Claim – Dismissal in default – Restoration – First complaint claiming Insurance amount was dismissed in default – Second complaint held maintainable as claim should not be defeated by rule of technicalities Order of authorities below granting relief to claimant upheld.<br /> B. Consumer Protection Act, 1986 – Section 13,14 & 23 – Civil Procedure Code – Order 9 Rule 9 – Dismissal in default – Restoration – Provision of Civil Procedure Code have been applied to consumer proceedings upto a limited extent. When there is no bar under the Consumer Protection Rules of a State to application of Order 9 Rule 9 of the Code, the same can be applied to the consumer proceedings in a given case in view of Section 13(4) of C.P. Act. The rule of prohibition contained in Order 9 Rule 9(1) C.P.C. cannot be extended to the consumer proceedings. It is permissible to file a second complaint after explaining the reason of dismissal of earlier complaint in default. The consumer authorities are within their jurisdiction to dismiss complaint for non prosecution and have also jurisdiction to restore the complaint on satisfactory reasons. The authorities are also empowered to dismiss fresh complaint on the ground of abuse of the process of law.”<br /> 6. The law laid down in this authority cannot made applicable to the facts of the case in hand because in the instant case, after dismissal of the complaint in default for non-appearance of the parties, complainant had moved an application for its restoration which was dismissed as withdrawn. Therefore, withdrawl of the application for restoration of the earlier complaint tantamounts to dismissal of earlier complaint as withdrawn. Hence, once the complainant withdrew the complaint without permission to file a fresh complaint, he is barred from filing a fresh complaint on the same cause of action and against the same parties. In this view of the matter, support may be sought from Suman Bhatia Vs. Punjab State Electricity Board 2005(1) CPC 303, Mohinder Pal Vs. General Manager/Director General New India Assurance Co. 2005(2) CPC 622, M/s. Economic Transport Organisation Vs. M/s. M R Agencies and Another 1997(1) CPC 370, M/s. L R Gupta & Company Vs. Telecom District Manager, Ambala Cantt. CPC 1993 126, Sadhu Singh Vs. AAR BEE Traders 1996(2) CPC 634 and M/s. Shanti Dal Mills, Hodal Vs. New India Assurance Co. 2007(1) CPC 285.<br /> 7. The opposite party Nos. 1 & 2 are residing at Village and P.O. Railmajra, District Nawanshahar, which does not fall within the jurisdiction of this Forum. Therefore, this Forum has no territorial jurisdiction to try and entertain this complaint against them.<br /> 8. In para No. 8 of complaint, it has been mentioned that this Forum has jurisdiction to entertain and try this complaint as the complainant has purchased prospectus at Bathinda, date of interview was circulated at Internet at Bathinda and the advertisement for admission was published in various news papers at Bathinda.<br /> 9. Grievance of the complainant is that after having been admitted to the college of opposite party No. 1 & 2. He got admission in B.K. Birla Instutute of Engineering and Technology, Pilani (Rajasthan). Therefore, he asked for refund of fee from opposite party Nos. 1 & 2 which they refused. Hence, the cause of action has arisen to the complainant to file his complaint within the jurisdiction Village and Post Office Railmajra, District Nawanshahar. Therefore, merely purchasing prospectus, publication of advertisement regarding admission and circulation of date of interview at Internet at Bathinda, do not show accrual of any cause of action to the complainant at Bathinda for filing this complaint.<br /> 10. In view of the above discussion, application filed by the opposite parties is accepted and the complaint is hereby dismissed being not maintainable.<br /> 11. Copy of this order be sent to the parties concerned free of cost and the file be consigned to record room. <br /> Pronounced :<br /> 08-02-2010 <br /> (Vikramjit Kaur Soni)<br /> President<br /> <br /> <br /> (Dr. Phulinder Preet)<br /> Member <br /> <br /> <br /> (Amarjeet Paul) *ik Member