Chandigarh

StateCommission

CC/116/2015

Anoop Kumar - Complainant(s)

Versus

M/s Silver City Housing and Infrastructure Ltd. - Opp.Party(s)

H.S.Awasthi, Adv.

08 Jun 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

 

Complaint Case No.	:	116 of 2015
Date of Institution	:	03.06.2015
Date of Decision	:	08.06.2015

 

Anoop Kumar s/o Sh.Dhruv Krishan Sharma, r/o H.No.1001-H, Sector 21, Panchkula.

……Complainant

V e r s u s

M/s Silver City Housing and Infrastructure Limited, registered office at H.No.89, Sector 8-A, Chandigarh, through the authorized signatory/Managing Director.

 

                                         .... Opposite Party

BEFORE:  MR. DEV RAJ, PRESIDING MEMBER.

                MRS. PADMA PANDEY, MEMBER

 

Argued by:

Sh. H.S.Awasthi, Advocate for the complainant.

                

PER PADMA PANDEY, MEMBER

 

              The facts, in brief, are that the Opposite Party invited public for allotment of built up flats in its project i.e. Silver City Themes, Derabassi, District Mohali, for which, the complainant visited its office in order to find out eligibility and conditions etc. and it (Opposite Party) supplied a copy of the application form (Annexure C-1) but the original was retained by it and not supplied to him. It was stated that Opposite Party assured to complete the project and delivery of possession, as per the terms and conditions of the application form.  On the assurance given by the Opposite Party, the complainant completed the application form and deposited Rs.3,30,800/- vide cheque dated 23.02.2012, which was encashed by it immediately. It was further stated that on receipt of the application form and advance, the Opposite Party allotted the apartment bearing No.139, Block No. B-4, Ground Floor of B2 Type of house vide Annexure C-1/A. It was further stated that the Agreement was executed between the parties on 24.02.2012 (Annexure C-2), containing terms and conditions but the complainant had objected to various clauses of the Agreement and got clarification from the Opposite Party. Thereafter, the complainant approached the financial institution i.e. First Blue Home Finance Limited, Chandigarh, for a loan, which was sanctioned and installment worked out @ Rs.17,080/- per month from February, 2012 to February, 2032 vide Annexure C-3.

2.           It was further stated that the total remaining amount was disbursed by the financial institution to the Opposite Party immediately and the Opposite Party, thereafter, executed Tripartite Agreement with the financial institution, where the house had to be mortgaged and the complainant had to bear unnecessarily expenses of mortgage and Rs.1,27,820/- as insurance charges.  In this way, the Opposite Party had received entire sale price by 29.02.2012, as clear from Annexure C-3 except service tax. It was further stated that even after receipt of the entire payment, the Opposite Party failed to deliver possession. It was further stated that Opposite Party had manipulated such conditions in Annexure C-1 and C-2 leaving no escape for the allottee, to disagree with any conditions even after the allotment and after payment of the entire money. It was further stated that the Opposite Party used sub-standard material in construction than promised in Annexure C-1 and C-2 and the said unit was still incomplete. Ultimately, the Counsel for the complainant sent notices (C-4, C-4/1 & C-4/2) to the Opposite Party, but to no avail. It was further stated that the complainant was paying the interest @13.5% from February, 2012 on the entire amount received by the Opposite Party @Rs.17,080/- per month as installment.  It was further stated that the aforesaid acts of the Opposite Party, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed.

3.           The complainant, in support of his case, submitted his affidavit, by way of evidence, alongwith which, a number of documents (Annexure C-1 to C-5) were attached. The complainant also placed on record copies of two judgments (Annexure C-6 and C-7)

4.           We have heard the Counsel for the complainant, at the preliminary stage, and, have gone through the evidence and record of the case, carefully. 

5.           The principal question, that arises, for consideration, is, as to whether, this Commission has got the territorial Jurisdiction, to entertain and decide the complaint, or not. Admittedly, the complainant booked the residential apartment in the project of the Opposite Party i.e. “Silver City Themes” situated at Village Bhankarpur, M.C.Derabassi, District Mohali, Punjab and made the payment of Rs.3,30,800/- vide application form (Annexure C-1). A bare perusal of Annexure II Schedule of Payments (at page No.25 of the file) reveals that total cost of the apartment was Rs.21,50,000/- + service tax and the complainant opted for Plan B – Down Payment Plan (at page No.26 of the file). Annexure C-1/A is a copy of the letter of allotment dated 24.02.2012, from which, it is evident that Silver City Housing & Infrastructure Ltd. allotted Flat No.139, Block B-4, Ground Floor, Type/Category B-2 inclusive of car parking to the complainant in Silver City Themes and contents of Annexure C-1/A clearly reveal the address of Silver City Housing & Infrastructure Ltd. was mentioned on the letter head as Site Office : Silver City, MC Zirakpur, Chandigarh – Ambala Highway (N.H.22), Distt. Mohali, Punjab (PIN- 140603), India and no address of Chandigarh Office of Silver City Housing & Infrastructure Ltd. was mentioned on the said letter head. Annexure C-2 is a copy of the Agreement dated 24.02.2012, which was executed between the parties. From this document, it is proved that the address of M/s Silver City Housing & Infrastructure Ltd. mentioned in the Agreement as Silver City, Chandigarh – Ambala Highway (N.H.-22), MC Zirakpur, Tehsil Derabassi, Distt. SAS Nagar, Mohali (Pb.) and no address of Chandigarh office was mentioned in the Agreement.  Though legal notices (Annexures C-4 to C-4/2) were sent by the Counsel for the complainant to the Opposite Party at its Chandigarh address, but mere sending of notices at the Chandigarh address of the Opposite Party did not give rise to any cause of action at Chandigarh.  There is not even a single document, on record, from which, it could be established, that any cause of action, or part of cause of action, accrued to the complainant, at Chandigarh.  No doubt, the complainant took a loan from First Blue Home Finance Limited (Annexure C-3) from Chandigarh and repayment schedule (attached at page No.46 to 50 of the file), it is evident that various payments, towards the said apartment, were made by the complainant, through First Blue Home Finance Limited, Chandigarh, to “M/s Silver City Housing and Infrastructure Limited”, Opposite Party,  yet, from these documents, it is not at all evident, that the same (payments), were made by the complainant, to the Opposite Parties, at Chandigarh. The complainant has failed to place on record any document, which could show that the cause of action arose at Chandigarh. Thus, it is clearly proved that no cause of action, whatsoever, arose to the complainant, within the territorial Jurisdiction of this Commission, at Chandigarh. The judgments relied upon by the Counsel for the complainant in M/s Silver City Construction Limited & Anr. Vs. Smt.Jaswant Dhaliwal, First Appeal No.449 of 2013, decided by this Commission on 01.01.2014 and Munishwar Kumar Vs. Silver City Housing & Infrastructure Ltd., Consumer Complaint No.320 of 2013, decided on 25.09.2013 by District Forum-I, UT, Chandigarh, are of no help to the complainant, as each case is adjudicated upon on the basis of evidence adduced, and the facts of these cases are distinguishable from the facts of the case in hand.

6.           In Puran Chand Wadhwa Vs. Hamil Era Textiles Ltd., IV(2003) CPJ 26(NC),  a case decided by a Four Member Bench of the National Commission, it was held in Paras 7 to 9 as under:-

“7. 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.”

8. 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....”

9. 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.”

7.            In Puran Chand Wadhwa’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’s case (supra), the debentures were issued from Bombay; even the two installments as interest on debentures were issued from Bombay payable at Chandigarh; the same (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

8.             While interpreting the provisions of Section 17(2)(b) 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].”

9.            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 Consumer Disputes Redressal 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 the aforesaid cases, is fully applicable to the facts of the instant case. It is, therefore, held that this Commission has got no territorial Jurisdiction, to entertain and decide the instant complaint and, as such, the same (complaint) is liable to be returned to the complainant, for presenting the same, before the appropriate State Consumer Disputes Redressal Commission, having territorial Jurisdiction, to entertain and decide the same.

10.         For the reasons recorded above, the complaint, in original, alongwith the documents, is ordered to be returned to the complainant, 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.

11.        Certified copies of this order, be sent to the parties, free of charge.

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

Pronounced.

08.06.2015                                                            Sd/-

 [DEV RAJ]

PRESIDING MEMBER

 

Sd/-

 (PADMA PANDEY)

        MEMBER