JUSTICE DEEPA SHARMA (ORAL) The present Revision Petition under Section 21(b) of the Consumer Protection Act, 1986 (for short “the Act”) has been filed challenging the findings of the State Consumer Disputes Redressal Commission, Maharashtra, Circuit Bench at Kolhapur (for short “the State Commission”) dated 03.06.2019 in Appeal No.1049 of 2017 dismissing the Appeal of the Petitioner. The said Appeal had been filed by the Petitioner against the order dated 11.05.2017 of the District Consumer Disputes Redressal Forum, Kolhapur (for short “the District Forum”) allowing the Complaint No.91 of 2017 of the Respondent. -2- 2) The brief admitted facts of the case are that the Petitioner/Complainant is a resident of Kolhapur and the Petitioner is a builder and developer by profession. The Respondent had booked a flat No.305 situated on third floor in the project building of the Respondent. He paid a sum of ₹62,531/- and ₹17,25,000/- through cheques drawn on Bank of Maharashtra, Kolhapur Branch vide receipt dated 11.12.2015 towards the booking of the said flat. Some dispute arose between the parties in respect of sanction plan of the construction which was not as per the choice of the Complainant/Respondent. The Complainant cancelled the booking transaction. He asked the Petitioner through e-mails for refund of his booking amount. Vide e-mail dated 11.02.2016, he was informed by the Petitioner that his booking had been cancelled and the refund amount had been credited to his bank account. Despite that, the booking amount was not refunded by the Petitioner as agreed. Thereafter, the Complaint was filed. As per the order of the District Forum which is duly confirmed by the State Commission in the impugned order, a notice of the Complaint was served upon the Petitioner but the Petitioner did not contest the Complaint and did not file any written version and never appeared before the District Forum. Relying on the material -3- before it, the District Forum allowed the Complaint and issued the following directions: Complainants application is sanctioned partly The complainants be refunded booking amount ₹17,83,531/- (Rupees Seventeen Lacs Eighty Seven Thousand Five Hundred Thirty One Only) by the Opposite Party.Also from the date of submission of application by the complainant, an interest @ 9% on the paid booking amount and application expenses ₹5,000/- be recovered from the Opposite Party and be refunded to the Complainant. An amount of ₹15,000/- being mental harassment to the Complainant be recovered by the Opposite Party and be paid to the Complainant. All the contents of above order should be executed on or before 45 days. If within the prescribed time limit, the Opposite Party will be failed to execute above order, the Complainant is a right to take action against the Opposite Party under the Consumer Protection Act, 1986, Section 25 and 26. The true copies of order be made available to the parties herein at free of cost.” 3) The Petitioner had challenged the territorial jurisdiction of the District Forum and also contended that the District Forum had acted wrongly while allowing the Complaint as the Directors were not joined as party to the Complaint and hence there was no proper service. On these two grounds, the findings of the District Forum were challenged by the Petitioner. The State Commission after hearing the Petitioner at length and considering -4- all documents on record and after re-appreciating and re-assessing all the evidences on record, dismissed the Appeal holding as under: “Sum of ₹17,25,000/- towards payment of consideration of flat bearing no.305 situated in B Wing by Cheque no.060663 dated 07/12/2015 drawn on Bank of Maharashtra, Kolhapur branch and another payment in the sum of ₹62,531/- as advanced towards service tax in respect of flat no.305, B Wing in the project floated by Pinnacle Vastunirman Pvt. Ltd. As receipts in writing at Sr. No.47 dated 11/12/2015 and Sr.No.22 dated 11/12/2015 which indicate that the cheques were drawn on Bank of Maharashtra, Kolhapur Branch as were duly acknowledged on behalf of Opposite Party which were accepted as payment made towards advance consideration for flat no.305, Wing B and further more when the complaint was filed by the complainant, doctor couple residing at Kolhapur in the Kolhapur Consumer Forum, they had sought refund of their amount advanced together with interest @ 18% p.a. and costs of prosecuting the consumer complaint. The complainant had explained that the transaction for booking was concluded at Kolhapur as amount advanced for booking was issued by cheques drawn upon Bank of Maharashtra, Kolhapur branch to explain the cause of action and jurisdiction in consumer complaint. This consumer complaint was absolutely unopposed and ended in the order for refund advanced by the complainants by the impugned judgment and order. No appeal has been filed on behalf of the complainants to show their interest within possession of flat no.305 situated in Wing B of building project constructed by the opponent. Consumer complaint was decided ex-parte though opponent was duly served in the consumer complaint bearing no.CC/17/91. That being so, there was acquiescence on the part of the opponent for institution of consumer complaint in Consumer For a as also payments advanced on behalf of the complainants towards consideration and service tax in respect of flat drawn on Bank of Maharashtra, Kolhapur Branch and duly acknowledged by the opponent indicate for filing of the consumer complaint cause of action occurred in the district where complainants reside though part of cause of action in respect of territorial jurisdiction does -5- occur in such cases where project is situated. Looking to the facts and circumstances of the case, though the complainants were interested in claiming refund of advance instead of flat for which booking amount was advanced and further more though judgment and order was decided ex-parte in respect of refund of amount advanced by the complainants. Complainants did not file any appeal in respect of regaining possession of the flat no.305 situated in Wing B to the project. That being so, case of the complainants came under the provision of Section 11(2)(b) of Consumer Protection Act, 1986 as well as in clause (c) as observed above. Hence, as the appeal is without merit, it is dismissed with costs in the sum of ₹5,000/- in addition. 4) This order is impugned before me in the Revision Petition. Besides taking the contention raised before the State Commission, the Petitioner has taken an additional plea that the District Forum did not have the pecuniary jurisdiction. It is submitted that the value of the subject flat was more than ₹20 Lakhs, i.e., about ₹63 lakhs and therefore, the Complaint ought to have been filed before the State Commission. Reliance is placed on the findings of this Commission in “CC No.97 of 2016 - Ambrish Kumar Shukla & Ors. Vs. Ferrous infrastructure Pvt. Ltd. dated 7.10.2016”. It is argued that findings of the State Commission on the point of District Forum having territorial jurisdiction is also contrary to the settled proposition of law. It is also contended that they have been wrongly proceeded ex parte. -6- 5) I have given thoughtful consideration to the arguments of learned Counsel. 6) The issues relating to the pecuniary jurisdiction, territorial jurisdiction and proceeding the Petitioner ex parte are both questions of law and facts. I have to consider whether the findings given by the Forum below are based on the facts which were produced before it. It is apparent that the jurisdiction of this Commission under Section 21(1)(b) of the Act is very limited. This Commission has no jurisdiction to re-appreciate and re-assess the evidences and then substitute its findings to that of the Forum below especially when there are concurrent findings of facts. It has been so held by the Hon’ble Supreme Court in “Rubi (Chandra) Dutta Vs. United India Insurance Co. Ltd. – (2011) 11 SCC 269”:
“23. Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National -7- Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora”. 7) Again in “Lourdes Society Snehanjali Girls Hostel and Ors. Vs. H&R Johnson (India) Ltd. and others, (2016) 8 Supreme Court Cases 286,” the Hon’ble Supreme Court has reiterated the same principle and has held as under: “17. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons.” 8) In T.Ramalingeswara Rao (Dead) Through L.Rs. and Ors. Vs. N.Madhava Rao and Ors. decided on 05.04.2019 passed in Civil Appeal No. 3408 of 2019, the Hon’ble Supreme Court has held as under: “12. When the two Courts below have recorded concurrent findings of fact against the Plaintiffs, which are based on appreciation of facts and evidence, in our view, such findings being concurrent in nature are binding on the High court. It is only when such findings are found to be against any provision of law or against the pleading or evidence or are found to be perverse, a case for interference may call for by the High Court in its second appellate jurisdiction.” -8- 9) Keeping in mind the authorities where the Petitioners were rightly proceeded ex parte by the District Forum, it is clear that in the Appeal there is no contention that the Petitioner which is a Private Limited Company were never served. The plea taken is as under: (c) The Hon’ble Forum failed to appreciate the fact, that since Directors were not joined as party to the complaint, there was no proper service of notice and hence complaint should not have proceeded exparte. Hence the judgment/order needs to be set aside.” 10) This plea clearly shows that there is no contention that the Petitioner which is a juristic person was not served. It is the law that a Private Limited Company is a legal entity and any Complaint or Suit is to be filed against the Company and not against its Directors. Since there is no contention by the Petitioner that the Petitioner which is a Private Limited Company was never served, no fault can be found in the findings that the Petitioner was duly served of the notice of the Complaint. 11) As regards the finding on territorial jurisdiction is concerned, the State Commission after perusing the evidence on record has concluded that the cause of action had arisen within the jurisdiction of District Forum. 12) Section 11 of the Act describes the jurisdiction as under: -9- 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,— 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…..” 13) It, therefore, is clear that Complaint can also be filed at the place where the cause of action wholly or partly arises. Since on the basis of the evidence, the State Commission has rightly concluded that the part of cause of action had arisen within the jurisdiction of Kolhapur District Forum, the findings cannot be found fault since learned Counsel has failed to show on the basis of evidence which was considered by the State Commission while reaching to this conclusion that such findings are perverse, i.e., are not based on the evidences on record or contrary to the evidence on record. 14) As regards the argument of pecuniary jurisdiction is concerned, it has been raised for the first time before this Commission in the present Revision petition. This shows that the Petitioner is not serious about his contention otherwise he should have raised it at the first opportunity i.e. before the State Commission in the Appeal as well. Moreover, admittedly, in the -10- present case, there was no flat buyer agreement between the parties. He only paid the booking amount and thereafter, before any agreement could be executed between them, dissatisfied with the promises, the Respondent/Complainant had cancelled the allotment. It therefore is clear that since there was no agreement for the purchase of the flat and the cause of action only relates to the booking amount. The pecuniary jurisdiction thus has to be considered on the basis of the said amount. The findings of this Commission in the case of Ambrish Shukla are distinguishable because it relates to different set of facts. 15) Reliance has been placed on HUDA vs. Vipan Kumar Kohli,, 1995 1 CPJ (NC) 235, where it has been held that the issue of inherent lack of jurisdiction can be taken at any stage. It is a settled proposition of law that where the finding on the issue of jurisdiction depends on facts, such pleas ought to be taken at first instance. Thus, in terms of Section 21 of the Civil Procedure Code, the objections relating to jurisdiction (pecuniary or territorial) ought to have been taken at the first opportunity. First opportunity was before District Forum, where Petitioner chose to remain absent. Also in appeal though the plea of territorial jurisdiction was raised, no plea relating to pecuniary jurisdiction is taken. -11- 16) I found no illegality or infirmity in the concurrent findings of the Forum below. The present Revision Petition has no merits and the same is dismissed in limine. |
