Delhi

StateCommission

CC/256/2017

ANJU KAUL - Complainant(s)

Versus

BPTP LTD. - Opp.Party(s)

JATIN DHAWAN

07 Mar 2017

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

                                                     Date of Arguments: 07.03.2017

     Date of Decision: 14.03.2017

 

Complaint No. 256/2017

In the matter of:

Anju Kaul w/o Umesh Kaul

Through Power of Attorney Holder

Ms. Rita Jan W/o Ajay Jan

R/o 15-A, DDA Flats

Gulabi Bagh

New Delhi-110007.                                                                       ………..Complainant

 

                                                            Versus

BPTP Ltd.

Through Mnaging Director/Directors

M-11, Middle Circle

Connaught Place

New Delhi.                                                           …….Opposite Party

 

CORAM

 

Hon’ble Sh. O.P.Gupta, Member(Judicial)

1.     Whether reporters of local newspaper be allowed to see the judgment?  Yes

2.      To be referred to the reporter or not? Yes

 

SHRI O.P.GUPTA

 

JUDGEMENT

 

            The present complaint is being disposed of on the point of territorial jurisdiction at the stage of admission itself.  The relevant facts are that complainant booked flat No. PB-220 SF in project named  “Parkland Pride” at Sector-77, Faridabad, Haryana on 15^th April, 2011 at the cost of Rs. 54,26,724/- .  OP promised delivery of complete flat within 30 months.  After 15 months OP raised copy of BBA which were unilateral/lopsided.  Due to economic hardship, family pressure and growing family needs to accommodate elderly parents the complainant agreed to execute the allotment letter.  Now this complaint for directing OP to hand over possession of flat within six months, to release acute late possession penalty as per clause V of the allotment letter, to pay compensation for deficit services by paying the interest @ 18%  per annum, not to escalate the price of flat.  In the alternative the directions to OP to refund the entire amount alongwith 18% compounded quarterly has been prayed.  Over and above the complainant has prayed for compensation of Rs. 10/- lakh for mental agony and Rs. 2,00,000/-  as litigation cost.

2.        In para 12 of the complaint dealing with territorial jurisdiction the complainant has pleaded that registered office of the OP is in New Delhi and all correspondence were made from New Delhi.  Entire/substantial cause of action has arisen at New Delhi.

3.        The copy of the agreement at page 34 recites that floor buyer agreement was executed at Gurgaon.  Copies of receipts at pages 69 to 87 reveal that payments were made through cheques drawn on Kotak Mahendra Bank but they are silent about the location of branch on which the cheque was drawn.  The project is located in Faridabad. Hence no part of of cause of acation arose in Delhi.,

4.        During the course of argument counsel for the complainant stressed that location of registered office in New Delhi alone is sufficient We are unable to subscribe to the arguments.  Similar question reached Hon’ble Supreme Court in Sonic Surgical vs. National Insurance Company Ltd, IV (2009) CPJ 40. In the said judgement Hon’ble Supreme Court held that it could not agree with counsel of the appellant. It was held that interpretation has to be given to amended section 17(2) (b) of the Act which does not lead to absurd consequence. If contention of counsel for appellant is accepted, it would mean that even if cause of action has arisen in Ambala, then too the complainant can file complaint even in Tamil Nadu or Gauhati or any where in India where branch office of insurance company is situated.  That would be absurd consequence and lead to bench hunting.  The expression ‘branch office’ would mean branch office where cause of action has arisen.  No doubt said interpretation would be departing from plain and literal words of section 17 (2) (b) of the Act but such departure is sometime necessary (as it is in this case) to avoid  absurdity.

5.        If branch office in clause 17 (2)(b) has to be read alongwith cause of action, the same interpretation should apply to section 17(1)(a) so  as to mean “OP voluntarily resides or carries on business………..” alongwith cause of action.

6.        Reference with advantage may also be made to decision of National Commission in Revision Petition No, 1100/2011 titled as Rajan Kapoor vs. Estate Officer, HUDA decided on 04.11.11.  In that case District Forum, Panchkula allowed the complaint.   In appeal the State Commission found that district forum Panchkula had no territorial jurisdiction.  The decision of State Commission was based on decision of Hon’ble Supreme Court in Soni Surgical Supra.  In para 3 of the decision of National Commission it has been observed that merely because Head Office of HUDA was in Panchkula, did not confer jurisdiction on district forum, Panchkula, cause of action had arisen in Ambala. Consequently the proper forum was district forum, Ambala,  Order of the State Commission directing return of the complaint for  being presented to district forum, Ambala was maintained by the National Commission.

7.        Moreover in Revision petition No. 2780 of 2011 titled as Pramod Kumar Malik vs. HUDA decided by National Commission on 08.11.12, in para 12 it has been held tht complainant applied for plot in Gurgaon but filed the complaint at Faridabad.  In para 10 it was held that facts of the case are fully as attracted to Sonic Surgical case.  Merely because there is office of HUDA at Faridabad does not give any right to the complainant to file complaint at Faridabad and thus complaint was not entertainable before district forum in Faridabad.

8.        In Cosmos Infra Engineering India Ltd. Vs. Sameer Saxena Volume 1 (2013) CPJ 31 National Commission held that since floors were constructed in Gurgoan  it clearly showed that petitioner, builder were working for gain at Gurgaon only..

8.        In appeal No. FA 12/183 titled as Bhaiya Ram Sahu vs. Vipin Jain decided on 18.10.12 State Commission, Chattisgarh held that location of registered ffice is not sufficient to confer jurisdiction on district forum at that place.  In  para 10 it has been held that on this question law has been clarified by Hon’ble Supreme Court  and now it is settled that clauses of section 11 (2) of Consumer Protection Act are required to be read together.  There should not be a branch office or a working place or residence of the OP but cause of action  wholly or in part within jurisdiction of that district forum must have also arisen.  So requirement for the purpose of jurisdiction, is to fulfill that condition i.e.  OP must have residence or working place or branch office of OP.  Then some part of cause of action must have arisen within the jurisdiction of that district forum and then only consumer complaint can be filed.

9.        Applying the above law complaint is returned for presentation to State Commission, Haryana.

            Copy of the order be sent to both the parties free of cost.

 

 

 

 

                                                                                                                                               (O.P.GUPTA)                                                                                                              

MEMBER (JUDICIAL)