State Consumer Disputes Redressal Commission
Asha Sharma vs Sunworld City Pvt. Ltd. on 11 July, 2017
Daily Order IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL, COMMISSION : DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Arguments :11.07.2017 Date of Decision :13.07.2017 Complaint No.960/2017 IN THE MATTER OF: Ms. Asha Sharma, S/o. Shri Ram Rakshpal Sharma, R/o. Flat No.A-804, Loboni Apartments, Crossing Republic, Ghaziabad,UP. ......Complainant Versus M/s. Sunworld City Pvt. Ltd., Having registered office at 117, Hans Bhawan, 1-Bahadurgah Shah Zaffar Marg, New Delhi-110002. Also at: Sunworld City Pvt. Ltd., A-4, GF Sector-4, Noida UP. ....Opposite Party CORAM HON'BLE SH. O.P.GUPTA, MEMBER(JUDICIAL) HON'BLE SH. ANIL SRIVASTAVA, MEMBER
1. Whether reporters of local newspaper be allowed to see the judgment? Yes/No
2. To be referred to the reporter or not? Yes/No Present: Shri Anil Mehta, counsel for complainant.
PER : HON'BLE SHRI ANIL SRIVASTAVA, MEMBER Ms. Asha Sharma, resident of Ghaziabad has filed a complaint against Sunworld City Pvt. Ltd., hereinafter, referred to as complainant and OP respectively, alleging deficiency of service, have prayed for the relief as under:-
To direct the OP to repay R.6,65,124/- plus interest @18% in the interest of justice; and To direct the OP to pay Rs.10,00,000/- as damages sustained by the complainant due to the poor practice adopted by the OP with interest to the complaint.
And also the opposite party may be directed are also liable to pay the compensation for as mental and physical harassment; complaint.
And finally the amount of Rs.22,000/- towards litigation charges.
Any other or further relief as may be deemed fit an proper in the facts and circumstances of the case.
Facts of the case are these.
The complainant have booked one flat no.T12/908, Floor-9th, Tower Name-Tower-12, Super Built up area admeasuring approx. 925.00 sq ft in the project Sunworld City Vandita situated at TS-7, Sector-22 D Yumuna Express City, Gautam Budh Nagar, UP for a total cost of Rs.25,39,750/-. This had also entered into an agreement with the opposite party. We have perused the terms and conditions of the agreement.
The complainant having regard to the agreement has made the payment as under:
S.No. Ch. No. Date Amount Bank 1 041688 09.0413 12,892 Central Bank of India 2 085775 05.01.13 2,00,000 State Bank of India 3 912402 12.03.13 2,16,250 Same 4 912408 29.08.13 2,35,983 Same Total 6,65,124 The allotment letter was issued on 08.07.13. Thereafter the complainant visited the site where he found that nothing has been done on the site, no construction has been done and no works appears to have started. Consequently, the complainant requested the OP the refund of the money. His request was also followed by several reminders but of no avail.
Being frustrated with the in action of the OP the complainant has filed this complaint for the redressal of her grievances.
This matter was listed before us on 11.07.17 when the ld. Counsel for the complainant advanced his arguments. We have perused the record.
In the first instance we notice that this Commission does not njoy the jurisdiction to try and hear this case keeping in view the provision of Section 17 of the Consumer Protection Act. Provision of Section 17 of the Consumer Protection Act, 1986 posits as under:-
{(2) A complainant shall be instituted in a State Commission within the limit 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 Any of the opposite parties, where there are more than on, 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 State Commission is given or the opposite parties who do not reside or carry on business or have a branch office or personally works for gain, as the case may be, acquiesce in such institutions; or The cause of action, wholly or in part, arises.} On a plain reading of the afore extracted provision it becomes clear to us that a complaint under the Act can be instituted before a State Commission within limits of whose jurisdiction any one of the three situations contemplated in the provision is shown to exist. The use of the word `of' at the end of sub-clauses (a) & (b) of the said sub-section is significant and reflects the object of the legislation, leading to the conclusion that each of the three contingencies enumerated therein is independent of each other And not cumulative.
The expression `casue of action' is neither defined in the act nor in the Code of Civil Procedure. However, by virtue of a catena of decisions of the Supreme Court, wherein the meaning of the said expression in legal parlance has been explained, the expression has been held to be of wide import. Generally, the expression `cause of action' is described as `bundle of facts' which the petitioner must prove, if traversed, to entitle him to the relief prayed for.
It would be manifestly clear from bare reading of the afore mentioned provision of the Act that the complaint can be filed before the fora where the cause of action arose. In the subject the cause of action arose at NOIDA.
In Navinchnadra N. Majithia s.State of Maharashtra & Ors (2007) 7 SCC 640, explaining the import of the said expression, in his concurring judgement, K.T.Thomas J. observed as under:
"The collection of the words "cause of action, wholly or impart, arises" seems to have been lifted from Section 20 of the Code of Civil Procedure, which section also deals with the jurisdictional aspects of the courts. As per that section the suit could be instituted in a court within the legal limits of whose jurisdiction the "cause of action wholly or in part arises". Judicial pronouncements have accorded almost a uniform interpretation of the said compendious expression even prior to Fifteenth Amendment of the Constitution as to mean "the bundle of facts which would be necessary for the plaintiff to prove, it traversed, in order to support his right to the judgement of the court."
In Read V. Brown Lord Esher, M.R. [(1988) 22 QBD 125:58 LJOB 120:60LT 250 (CA)], adopted the definition for the phrase "cause of action that it meat "every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgement of the court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved".
In Kandimalla Raghaviah & Co. Vs. National Insurance Co. Ltd. & Anr., (2009) 7 SCC 768, the Hon'ble Supreme Court has held that "cause of action" is cause of action which gives occasion for and forms the foundation of the suit.
The Ld. Counsel for the complainant had also argued that this Commission enjoys a jurisdiction by virtue of agreement arrived at between them. It is a trite law that agreement does not over ride the provisions of the Act. We are unable to except the arguments so advanced. We accordingly order return of the complaint to be filed before appropriate court of jurisdiction. We order accordingly.
Having regard to this we are of the considered view that this complaint is not maintainable before this commission on account of territorial jurisdiction. Accordingly we order to return this complaint to file before the Commission enjoying the territorial jurisdiction to entertain this complaint.
Copy of this order be sent to both the parties free of cost as contemplated under the Consumer Protection Rules 1987 read with Consumer Protection Regulations 2005.
File be consigned to Record Room.
(ANIL SRIVASTAVA) (O.P.GUPTA) MEMBER MEMBER (JUDICIAL)