JUSTICE V.K.JAIN (ORAL)

The complainant took admission in a coaching institute, which the petitioner is running for preparing the candidates for JEE (Advance) paying a sum of Rs.2,34,777/- by way of a Demand Draft issued by State Bank of India, Barnala. After taking coaching for about one year, the complainant sought refund of the fee paid by him on proportionate basis. The request having been declined, he approached the concerned District Forum at Barnala seeking refund of the amount of Rs.1,17,380/- with compensation.

2.      The complaint was resisted by the petitioner which took a preliminary objection that the District Forum at Barnala had no territorial jurisdiction to try the consumer complaint. On merits, the petitioner claimed that the complainant was not entitled to refund of any part of the fee which he had paid.

3.      An application was filed by the petitioner interalia seeking dismissal of the consumer complaint on the ground that the District Forum at Barnala did not have the requisite territorial jurisdiction. The application was allowed by the District Forum and consequently the consumer complaint was dismissed.

4.      Being aggrieved from the order passed by the District Forum, the complainant / respondent approached the concerned State Commission by way of an appeal. Vide impugned order dated 2.8.2018, the State Commission allowed the appeal and remitted the matter back to the District Forum to decide the consumer complaint on merits. Being aggrieved from the order passed by the State Commission, the petitioner is before this Commission.

5.      It is vehemently submitted by the learned counsel for the petitioner that since no part of the cause of action arises in Barnala and the petitioner does not have even a branch office in Barnala, the District Forum at Barnala did not have a territorial jurisdiction to entertain the consumer complaint. The learned counsel for the respondent on the other hand submits that the Demand Draft was got prepared at Barnala and even the post-dated cheques were drawn on a bank at Barnala and, therefore, the District Forum did have the requisite territorial jurisdiction.

6.      The learned counsel for the petitioner further submits that the cheque was handed over to the petitioner company at Chandigarh and the admission was also taken in the institute situated at Chandigarh. However, in my opinion, it will not be necessary for this Commission to go into the correctness or otherwise of the view taken by the State Commission since the order passed by the said Commission has in my opinion, subserved the interest of justice and has not resulted in any manifest, miscarriage or failure of justice.

7.      In Nusli Neville Wadia Vs. Ivory Properties & Ors. – AIR 2019 SC 5125 dated 4.10.2019, the Hon’ble Supreme Court while dealing with an objection to the territorial jurisdiction interalia held as under:-

“13. Sub­-section (1) of Section 21 provides that before raising an objection to territorial jurisdiction before an appellate or revisional court, two conditions precedent must be fulfilled:

(i) The objection must be taken in the court of first instance at the earliest possible opportunity; and

(ii) There has been a consequent failure of justice.

This provision which the legislature has designedly adopted would make it abundantly clear that an objection to the want of territorial jurisdiction does not travel to the root of or to the inherent lack of jurisdiction of a civil court to entertain the suit. Hence, it has to be raised before the court of first instance at the earliest opportunity, and in all cases where issues are settled, on or before such settlement. Moreover, it is only where there is a consequent failure of justice that an objection as to the place of suing can be entertained. Both these conditions have to be satisfied.

14. The learned counsel appearing on behalf of the respondents has submitted that the objection as to the lack of territorial jurisdiction was raised in the written statement before the trial court. But evidently, the suit was decreed ex parte after the respondents failed to participate in the proceedings. The provisions of Section 21(1) contain a clear legislative mandate that an objection of this nature has to be raised at the earliest possible opportunity before issues are settled. Moreover, no such objection can be allowed to be raised  44 even by an appellate or revisional jurisdiction, unless both sets of conditions are fulfilled.”

In Pathumma & Ors. Vs. Kuntalan Kutty & Ors. – [(1981) 3 SCC 589] dated 6.8.1981, the Hon’ble Supreme Court interalia held as under:-

5. In order that an objection to the place of suing may be entertained by an appellate or revisional court, the fulfilment of the following three conditions is essential:

(1) The objection was taken in the Court of first instance.

(2) It was taken at the earliest possible opportunity and in cases where issues are settled, at or before such settlement.

(3) There has been a consequent failure of justice.

6. All these three conditions must co-exist. Now in the present case conditions Nos. 1 and 2 are no doubt fully satisfied;  but then before the two appellate Courts below could allow the objection to be taken, it was further necessary that a case of failure of justice on account of the place of suing having been wrongly selected was made out. ……………………………”  

8.      In terms of Section 21 of the C.P. Act, this Commissions does possess the requisite jurisdiction to pass an order passed by the State Commission where the State Commission has exercised a jurisdiction not vested it in law or it has failed to exercise a jurisdiction so vested or has acted in the exercise of its jurisdiction illegally or with material irregularity. It is by now a settled legal proposition that revisional Forum will not interfere with an order passed by the Court/Forum below, if the said order has not resulted in a failure or miscarriage of justice. The complainant before the District Forum was a student at the relevant time and was seeking to pursue higher education by taking admission in IIT. He was residing with his parents at Barnala. The parties had appeared and file their respective pleadings before the District Forum, Barnala. The petitioner company was represented by its counsel before the District Forum at Barnala. The State Commission approached by the petitioner has its seat at Chandigarh. The petitioner company was represented by a counsel before the State Commission at Chandigarh. If the order passed by the State Commission is set aside and the complainant is made to file a consumer complaint at Chandigarh, he will have to engage a new counsel to represent him at Chandigarh. Considering the nature of the dispute and the amount involved in the consumer complaint, it would not be fair and reasonable and will not be in the interest of justice to interfere with the order passed by the State Commission and relegate the complainant to the District Forum at Chandigarh. Therefore, this is not an appropriate case warranting interference by this Commission with the order passed by the State Commission in exercise of revisional jurisdiction of this Commission. The revision petition is, therefore, dismissed with no order as to costs.

9.      On the request of the learned counsel for the petitioner, it is made clear that the view taken by the State Commission on the territorial jurisdiction of the District Forum will not be a treated as a legally binding precedent.