State Consumer Disputes Redressal Commission
Kamal Mehta vs Bestech India Pvt. Ltd. on 3 February, 2017
Daily Order IN THE STATE COMMISSION : DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Arguments: 03.02.2017 Date of Decision: 09.02.2017 Complaint No. 57/2017 In the matter of: Mr. Kamal Mehta S/o Sh. Surinder Kumar Mehta R/o H.No. CC-5, S.L.Tower Shire & Pilot Court, Gurgaon Haryana - 122002. .....Complainant Versus Bestech India Pvt. Ltd. Regd. Office at:- 1/2873, Ram Nagar Loni Road, Shahdara Delhi Also at: 124, Sector-44 Gurgaon, Haryana ........Opposite Party CORAM SHRI O.P. GUPTA, MEMBER(JUDICIAL) SHRI ANIL SRIVASTAVA, MEMBER 1.
Whether reporters of local newspaper be allowed to see the Judgement? Yes
2. To be referred to the reporter or not? Yes JUDGEMENT Shri O.P.GUPTA MEMBER(JUDICIAL) The present complaint at the stage of admission is liable to be disposed of on the short ground of lack of territorial jurisdiction. The complainant booked 3 BHK Apartment No. 702, admeasuring 1995 sq. ft. on 7th floor in Tower F in project " Park View Sanskriti" at Sector-92, Gurgaon, Haryana. He gave Rs. 7,00,000/- vide cheque drawn on HSBC Bank on 29.11.12. He further paid Rs. 7,00,000/- drawn on the same bank on 30.11.12.
2. On 04.03.13 he further paid Rs. 6,00,000/- by cheque. The receipts no. 548, 549 and 741 dated 10.05.13 were given. On 14.06.13 he paid another Rs. 16,19,048/- by cheque for which receipt No. 1713 was given. OP sent covering letter dated 18.06.13 alongwith buyer's agreement. Complainant signed both the agreements and sent the same to OP. In May 2014 OP sent original buyer agreement duly signed by both the parties in which date of 16.05.14 was written by AR of the OP. Clause 3 (a) of the agreement provides that OP was to offer possession of the apartments within 36 months from the date of signing the agreement or from date of approval of building plan byTown & Country Planning Deptt. whichever is later. On 02.07.14 complainant further paid Rs. 5,00,000/- by cheque. In all the complainant has paid Rs. 41,19.,048/-. Hence this complaint for refund of said amount with interest @ 18% per annum w.e.f. 02.07.14, Rs. 10,00,000/- for compensation on account of physical and mental agony and Rs. 1,00,000/- as litigation cost,
3. We have heard on the question of territorial jurisdiction and complaint being premature. The clause 3(a) of agreement at page 33 shows that period of 36 months is to be counted from the date of signing of the agreement. The same clause provides that developer is entitled to grace period of six months beyond the period of 36 months. The same will expire on 16.11.17. The complaint filed on 13 Jan., 2017 is premature.
4. The complainant cannot be allowed to count the period from 2012 on which date he paid the first installment. Reasons being that agreement does not speak of date of booking or date of payment. It speaks about the date of signing the agreement.
5. The other hurdle in the case of the complaint is about the territorial jurisdiction. The flat is situated in Gurgaon, stamp paper at page 23 is of Haryana, place of execution of agreement is Gurgaon as per page 25, payments were made through cheque drawn on bank in Gurgaon. Complainant has cleverly concealed the place of drawee bank on which the cheques were drawn, in the complaint in the hope that the same would escape notice of this commission., It is only on perusal of the receipts that this Commission could make out that cheque was drawn on branch at Gurgaon.
6. The counsel for the complainant made an effort to create jurisdiction on this Commission on the plea that OP has its regd. Office in Delhi. He stressed on clause(a) of section 17 (2) consumer protection Act and submitted that the same has nothing to do with cause of action. According to him clause (a), (b) and (c) are in the alternative and not cumulative.
7. 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.
8. 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.
9. 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.
10. Facts of the present case squarely lie in the ratio of aforesaid two decisions.
11. In view of the above discussion the complaint is directed to be returned for being presented to State Commission, Haryana.
Copy of the order be sent to both the parties free of cost.
(ANIL SRIVASTAVA) (O.P.GUPTA) MEMBER MEMBER(JUDICIAL)