Chandigarh

StateCommission

CC/148/2015

Gurcharan Singh Soni - Complainant(s)

Versus

Unitech Limited - Opp.Party(s)

G.K.Jain, Authorised person

31 Jul 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

                                                                 

Complaint Case No.	:	148 of 2015
Date of Institution	:	22.07.2015
Date of Decision		31.07.2015

 

1.    Gurcharan Singh Soni, son of Bhagwant Singh Soni, resident of 14 Blueleaf Trail, Brampton, Ontario L7A2B5, CANADA.

2.    Kuldeep Kaur Soni wife of Gurcharan Singh Soni resident of 14, Blueleaf Trail, Brampton Ontario L7A2B5, CANADA.

Through their General Power of Attorney hold G.K. Jain, son of Pawan Kumar Jain resident of #2125, Sector 15-C, Chandigarh 160015.

……complainants.

V e r s u s

1.    Unitech Limited having its office at SCO 189-90-91, Sector 17-C, Chandigarh 160017

2.    Unitech Limited having its registered office at 6, Community Centre Saket New Delhi-110 017.             

  ....Opposite Parties.

 

Complaint under Section 17 of the Consumer Protection Act, 1986.

 

BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

               Sh.Dev Raj, MEMBER.

               MRS. PADMA PANDEY, MEMBER.

             

Argued by:

 

Sh. G.K. Jain, General Power of Attorney of the complainants.

 

PER DEV RAJ, MEMBER.

 

            The facts, in brief, are that the complainants who are non-resident Indians applied for the allotment of a flat in the project of the Opposite Parties and paid earnest money of Rs.3,73,175/-. It was stated that Flat Buyer Agreement dated 10.2.2011 was executed between the complainants and Alice Developers Pvt. Ltd. at New Delhi. It was further stated that since no money was paid to the said Company, as such, it was not arrayed as a party. It was further stated that the total price of the flat was Rs.41,52,825/-. It was further stated that the complainants were to pay the payment as per the status of construction. It was further stated that out of the total price of the flat, the complainants paid a sum of Rs.39,82,315.42.  It was further stated that as per the Agreement, possession of the flat was to be delivered within 36 months from the date of signing of the same i.e. by 9.2.2014. It was further stated that there was no development, at the site, and even no flooring had been carried out in the building despite payment of 11^th installment on 24.06.2015, which was payable on completion of flooring as per the demand of the Opposite Parties. It was further stated that since the complainants were residing at Canada, they were not in a position to verify the status of the project and kept on making payments as demanded from time to time by the Opposite Parties. It was further stated that the Opposite Parties till date, failed to offer of possession of the flat in question.

2.         It was further stated that the aforesaid acts of the Opposite Parties amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed seeking directions to the Opposite Parties to refund Rs.39,82,315.42 alongwith interest @18% p.a. from the date of respective payments, pay Rs.5,00,000/- as compensation for mental agony and physical harassment and Rs.55,000/- as cost of litigation.

3.         We have heard the Authorised Representative of the complainants in person, at the preliminary stage, and have gone through the record of the case, carefully.

4.         The principal question, which falls for consideration, is, as to whether, this Commission has got the territorial jurisdiction, to entertain and decide the complaint or not. The complainants in Para 10 of the complaint, have categorically stated that they signed the Agreement at Chandigarh in the office of the Opposite Parties situated at Chandigarh and made all payments to them at their Chandigarh office and, as such, this Commission has the territorial jurisdiction to entertain and try the complaint. However, the perusal of the record shows that Buyer’s Agreement (Annexure P-1) in respect of Unit No.0303, Block A-3 Floor-03 in Gardens (Sector 97), Uniworld City, Mohali, was executed at New Delhi on 10.02.2011 amongst Alice Developers Private Limited, Unitech Limited and the complainants. Even otherwise, all the pages of the Buyer’s Agreement, bore the stamps of Unitech Limited, Gurgaon and Alice Developers Pvt. Ltd., New Delhi. The complainants had also signed all the pages of this agreement. In the Agreement, nowhere it was stated that the same was executed at Chandigarh or at the Chandigarh office of the Opposite Parties. Further Annexures A, B & C, annexed to the Buyer’s Agreement, also bore the signatures of the complainants and the respective stamps of the Opposite Parties and Alice Developers Pvt. Ltd. of Gurgaon and New Delhi. From the bare perusal of email (Annexure P-2), whereby the complainants asked the Opposite Parties, to confirm the date for refunding the principal amount with interest, it cannot be said that the payments were made at Chandigarh, though the same were made through cheque. Merely making payments through cheques drawn at Chandigarh Branch cannot confer jurisdiction on this Commission. No doubt, the complainants applied for registration for provisional allotment of an apartment to the Chandigarh office of the Opposite Parties vide Annexure P-3. It may be stated here that merely applying for registration for provisional allotment of an apartment to Chandigarh office of the Opposite Parties, does not mean that the same was accepted at Chandigarh, when the registered office of the Opposite Parties is situated at New Delhi, by which the decision for acceptance of application or otherwise, was to be taken. Had the complainants produced some reliable document to the effect that allotment was made by the Chandigarh office of the Opposite Parties, the position would have been different. In that case, it would have been said that part of cause of action accrued to the complainants at Chandigarh. While interpreting the provisions of Section 17(2)(b) of the Act, which are para-materia to Section 11 of the Act, in Sonic Surgical Vs National Insurance Company Ltd. IV (2009) CPJ 40 (SC), the Apex Court held as under;

“4.     In our opinion, no part of the cause of action arose at Chandigarh. It is well settled that the expression cause of action means that bundle of facts which gives rise to a right or liability. In the present case admittedly the fire broke out in the godown of the appellant at Ambala. The insurance policy was also taken at Ambala and the claim for compensation was also made at Ambala. Thus no part of the cause of action arose in Chandigarh.

XXX               XXX                  XXX

8. Moreover, even if it had application, in our opinion, that will not help the case of the appellant. Learned Counsel for the appellant submitted that the respondent-Insurance Company has a branch office at Chandigarh and hence under the amended Section 17(2) the complaint could have been filed in Chandigarh. We regret, we cannot agree with the learned Counsel for the appellant. In our opinion, an interpretation has to be given to the amended Section 17(2)(b) of the Act, which does not lead to an absurd consequence. If the contention of the learned Counsel for the appellant is accepted, it will mean that even if a cause of action has arisen in Ambala, then too the complainant can file a claim petition even in Tamil Nadu or Gauhati or anywhere in India where a branch office of the Insurance Company is situated. We cannot agree with this contention. It will lead to absurd consequences and lead to bench-hunting. In our opinion, the expression branch office’ in the amended Section 17(2) would mean the branch office where the cause of action has arisen. No doubt this would be departing from the plain and literal words of Section 17(2)(b) of the Act but such departure is sometimes necessary (as it is in this case) to avoid absurdity [vide G.P Singh’s Principles of Statutory Interpretation, Ninth Edition, 2004 P. 79].”

5.         The perusal of the facts of Sonic Surgical’s case (supra), clearly goes to reveal that the policy was taken by the complainant at Ambala; the godown, in respect of which, the Policy was taken, was situated at Ambala, whereas the complaint was filed before this Commission, at Chandigarh. Under these circumstances, it was held that since no cause of action arose, within the territorial Jurisdiction of this Commission, at Chandigarh, except that the Opposite Party had the Branch Office there, it had no territorial jurisdiction to entertain and decide the complaint. In Sonic Surgical’s case (supra), before the Hon’ble Supreme Court, an argument was advanced, by the Counsel for the appellant/complainant, that since the Branch Office of the Insurance Company, was situated at Chandigarh, even if, no other cause of action arose to the complainant, within the territorial jurisdiction of Chandigarh, the State Commission, at Chandigarh, had jurisdiction to entertain and decide the complaint. That argument of the Counsel for the appellant/complainant therein, was rejected, by the Hon’ble Supreme Court, in the manner, referred to above.  The principle of law, laid down, in Sonic Surgical’s case (supra), is fully applicable to the facts and circumstances of the instant case.

6.         Further in Puran Chand Wadhwa Vs. Hamil Era Textiles Ltd’s, 2003 48 SCL 59, a case decided by a Four Member Bench of the National Consumer Disputes Redressal Commission, it was held in Paras 8 to 10 as under:-

“8. Before we go into the question of merits of the case, we would discuss the question of jurisdiction. It is now settled law that while the Consumer Forum has the trappings of a Civil Court but we are not Civil Courts. For ‘substantive’ purpose, Consumer Protection Act is a wholesome and in itself a complete enactment. Section 11 of this Act reads as follows :

“11. 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 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 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 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 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.”

9. While one may concede that Section 20 of C.P.C. and Section 11 of C.P.A., 1986 had a common reading - but this was before the amendment made in the Act in June, 1983. By an amendment to the C.P.A., 1986 in June, 1983, words “carries on business or has a branch office or” have been added. In our view legislative intent is clear. The amendment is part of the statute and has not been challenged. Consumer Forums cannot go beyond or behind the provisions of the Act. In our view, it is not in dispute that the respondent neither has any business nor any branch office in Chandigarh. The effort by the petitioner to bring in Punjab and Sind Bank as an Agent of the respondent with a view to fall within Section 11(2)(c), is too naive to be accepted and dealt in by us. Bank is only a facilitator to accept the money at the time of floating of debentures and encash cheques issued by the respondent. This is a limited service being rendered by them for all aspiring investors - by no stretch of imagination can they be called the Agents of the respondent. We see no action wholly or the part taking place in Chandigarh - Debentures were issued from Bombay. Two instalments as interest on Debentures were issued from Bombay payable at Chandigarh; Debentures were to be redeemed from Bombay, no action whatsoever could be said to be performed at Chandigarh. We have seen the judgment of the Hon’ble Supreme Court in the case of Morgan Stanley Mutual Fund v. SEBI & Ors. After going through it we do not find that the present case has anything common with the facts and results of that case as it dealt with situation/cases dealing with injunction. However relying upon the Halsbury’s Laws of England the Supreme Court goes on to state that, ‘As per as Indian is concerned, the residences of the Company is where the registered office is located’. Normally cases should be filed only where the registered office of the Company is situated. The point at issue was more specifically dealt in the context of Companies Act by Hon’ble Supreme Court in the case of H.P. Gupta v. Hira Lal, wherein it was held that the cause of action would arise at the place where registered office of the Company is situated. This view was confirmed/reiterated by the Hon’ble Supreme Court in the case of H.V. Jaya Ram v. ICICI & Ors., 1999 (7) Scale 481. National Commission in the case of GDA v. Smt. Sunita Garg (supra), had held that ‘the very fact that the amount of initial deposit for the flat (in Ghaziabad) was remitted through the Branch of Vijaya Bank at Chandigarh will not entitle the complainant to contend that any part of the cause of action had arisen in Chandigarh. (emphasis supplied). On the point of jurisdiction another point made by the petitioner is that Consumer Protection Act is a piece of beneficial legislation and the poor small investor could not be expected to run to several places in this case to Bombay for recovery of less than Rs. 2,000/-. It also could not be the case of the petitioner that the respondents and similarly placed companies could be facing litigation in thousands of Courts spread over the country. We have also the Hon’ble Supreme Court warning us of the pit falls when it observed in the case of Morgan Stanley Mutual Fund v. SEBI & Ors.

“There is an increasing tendency on the part of litigants to indulge in speculative and vexatious litigation and adventurism which the Fora seem reality to oblige. We think such a tendency should be curbed....”

10. In our view this appears to be the case at the District Forum level. We wish to reiterate that it is admittedly a beneficial legislation, but Forum shall not go out of the boundaries of law provided under the Act to satisfy the desires of anyone. Hence we see no merits in the issue - Consumer Forum at Chandigarh clearly had no jurisdiction under the law to entertain the complaint. The order of the State Commission is as per settled law on the subject.”

 

In Puran Chand Wadhwa Vs. Hamil Era Textiles Ltd’s case (supra), the Bank was only the facilitator to accept the money at the time of floating of debentures and encash cheques issued by the respondent, which was a limited service being rendered by it to all aspiring investors. The National Commission held that by no stretch of imagination could it (Bank) be called the Agent of the respondent. In Puran Chand Wadhwa Vs. Hamil Era Textiles Ltd.’s case (supra), the debentures were issued from Bombay; even the two instalments as interest on debentures were issued from Bombay payable at Chandigarh; debentures were to be redeemed from Bombay; and, as such, no action whatsoever could be said to have been performed at Chandigarh. Under these circumstances, the National Commission held that the District Forum at Chandigarh had no territorial jurisdiction to entertain and decide the complaint. In the instant case, since the initial payment was made through cheque  of ICICI Bank Limited Chandigarh Branch, in favour of Unitech Uniworld City Mohali Gardens, as is apparent from copy of the same (cheque) at page 38 of the file, in view of the law settled in Puran Chand Wadhwa Vs. Hamil Era Textiles Ltd.’s case (supra), and in our considered opinion, this Commission has no territorial jurisdiction to entertain and decide the instant complaint. As such, the complaint, deserves to be returned to the complainants, for filing the same, before an appropriate Commission, having territorial jurisdiction to entertain and decide the same.

7.         For the reasons recorded above, the complaint, in original, is ordered to be returned to the complainants, alongwith the documents against valid receipt, after retaining the attested to be true photocopies of the same, for presentation, before the appropriate Commission, having territorial Jurisdiction, to entertain and decide the same.

8.         Certified Copies of this order be sent to the parties, free of charge.

9.         The file be consigned to Record Room, after completion.

Pronounced

July  31, 2015.

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

Sd/-

[DEV RAJ]

MEMBER

 

 

Sd/-

[PADMA PANDEY]

 MEMBER

 

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