State Consumer Disputes Redressal Commission
Suresh Kumar vs Emerging Valley Pvt. Ltd. on 22 January, 2018
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.684 of 2017
Date of institution: 26.09.2017.
Date of decision : 22.01.2018.
Suresh Kumar aged about 57 years s/o Late Sh.AnandParkash
R/o H.No.199, Professor Colony, Street No.1, Sirhind Tehsil and
District Fatehgarh Sahib.
....Appellant/Complainant.
Versus
1. Emerging Vally (P) Limited, Registered Office at SCO 46-47,
1st Floor, Sector 9-D, Madhya Marg, MatkaChowk,
Chandigarh through its Director Gurpreet Singh Sidhu.
2. Emerging Vally (P) Limited, having its working/sales office at
Shop No.40, Opposite Baba Banda Singh Bahadur
Engineering College, Fatehgarh Sahib through its Area
Sales Manager, Anil Kumar Sood.
3. Satish Kumar Sharma s/o Sh.Surinder Kumar Sharma R/o
MansooriTibba, Sirhind City Tehsil and District Fatehgarh
Sahib active worker and broker of Emerging Vally (P)
Limited.
....Respondents/OPs.
First Appeal against the order dated
08.09.2017 of the District Consumer
Disputes Redressal Forum, Fatehgarh
Sahib.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mrs. Kiran Sibal, Member
Present:-
For the appellant : Sh. Saajan Singla, Advocate For respondents No.1&2: Sh.Harmandeep Singh, Attorney For respondent No.3 : Ex-parte JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT The instant appeal has been preferred by the appellant/complainant against the order dated 08.09.2017 passed First Appeal No.684 of 2017 2 by the District Consumer Disputes Redressal Forum, Fatehgarh Sahib (in short "District Forum") in CC No.56 of 2016, wherein the complaint was ordered to be returned to the complainant for redressal of his grievances before the appropriate Forum/court of law having territorial jurisdiction.
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Forum.
Facts of the Complaint
3. The brief facts of the case are that OP No.1 initiated a project namely "Trinity Home" in which the OP No.1 had set-up a colony and started selling residential plots. OP No.1 had their branch offices at various places and one branch office was being run at Shop No.40, Opposite Baba Banda Singh Bahadur Engineering College, Fatehgarh Sahib through Area Sales Manager Anil Kumar Sood. OPs No.2&3 contacted the complainant and convinced him to purchase a residential plot of 2BK (610 square feet) at First floor in the said project. The total value of flat was ₹13,60,000/- and after deducting the discount of ₹1,80,000/-, the actual cost of the flat came out to be ₹11,60,000/-. Complainant deposited Rs.7,60,000/- for purchasing the flat No.TRI-155 First Floor, vide cheque No.421972 dated 03.01.2013 and a receipt No.0430 dated 24.01.2013 was issued by the OPs. The remaining amount of ₹4,00,000/- was to be paid by him at the First Appeal No.684 of 2017 3 time of execution and registration of the sale deed in respect of the said flat. Thereafter, the complainant, after depositing the initial amount of ₹7,60,000/-, requested the OPs number of times to execute the agreement in respect of the said flat, but he did not get any response. Even, the OPs failed to construct the flat and the matter was delayed by one reason or the other. Only a sample flat was partly constructed at the spot. The complainant visited to see the spot and shocked to note that OPs had started construction of third floor over the said building without the consent and knowledge of the complainant, whereas the complainant was told that the building will be built upto 2nd floor only and there will be no third floor. Furthermore, they were using very cheap and substandard material for raising the construction of the said flats. Feeling aggrieved by the conduct of the OPs, the complainant approached the District Forum, alleging gross negligence, unfair trade practice and deficiency in service on the part of OPs and sought directions to refund the amount of ₹7,60,000/- paid to OPs with interest and ₹2,00,000/- as compensation on account of mental tension etc. Defence of the Opposite Party
4. In pursuance to notice, the OPs appeared and filed joint written reply taking preliminary objections that the District Forum had no jurisdiction to try and decide the complaint; complainant has no locus standi or cause of action to file the First Appeal No.684 of 2017 4 complaint; the complainant has not come to the District Forum with clean hands and had suppressed the true and material facts; the complaint was false, fictitious, wrong, vexatious, vague, baseless and frivolous and not maintainable. On merits, it was averred that the complainant had himself approached the OPs at its office at Chandigarh in order to purchase the said flat, which was allotted to him at the first floor. It was admitted that complainant had made part payment of ₹7,60,000/-, rest of the amount was payable by 28.02.2013. It was admitted that a discount of Rs.1,50,000/- was given to the complainant, but it is alleged that it was subject to the condition that remaining amount of Rs.4,00,000/- would be paid by the complainant on or before 28.02.2013. The complainant failed to pay the said amount as per the terms and conditions of the contract. After denying the other averments made in the complaint, the OPs prayed for dismissal of the complaint. Finding of the District Forum
5. Both the parties produced their evidence in support of their averments before the District Forum, which after going through the same and hearing learned counsel for the parties, returned the complaint to the complainant, vide impugned order. Hence, this appeal.
Contentions of the Parties
6. We have heard learned counsel for the appellant and authorised representative of the OPs No.1&2 as OP No.3 did not appear and refused to receive the notice of the appeal and was First Appeal No.684 of 2017 5 thus proceeded against ex-parte. We have also carefully gone through the records of the case.
7. Learned counsel for the appellant vehementally contended that the order of the District Forum is not sustainable in the eyes of law. The OPs had taken a preliminary objection with regard to the territorial jurisdiction in the written reply and the said objection was treated as preliminary objection and was decided vide order dated 27.02.2017 whereby specific finding was recorded by the District Forum that OP No.2 has its office in a Shop No.40, Opposite Baba Banda Singh Bahadur Engineering College, Fatehgarh Sahib and District Forum, Fatehgarh Sahib has territorial jurisdiction to try and decide the complaint. Now, the complaint has been returned by observing that District Forum has no jurisdiction. The earlier order dated 27.02.2017 has become final because they never challenged the said order. So, now the OPs cannot raise same objection of territorial jurisdiction at the final stage of arguments of the complaint.
8. On the other hand, Sh.Harmandeep Singh, authorised representative appeared on behalf of the respondents No.1&2 vehementally contended that property situated in the area of Mohali and the office of company is in Chandigarh. There is no office at Fatehgarh Sahib. The order has been rightly passed by the District Forum by returning the complaint. First Appeal No.684 of 2017 6 Consideration of contentions
9. We have given our thoughtful consideration to the arguments raised by the learned counsel for the appellant and attorney of the respondents No.1&2. We have perused the record of the District Forum.
10. The only issue which arises in the present case is that once the preliminary objection has been decided by the District Forum with regard to territorial jurisdiction and has taken the cognizance of the complaint and proceeded with the same, at the final stage, can the District Forum order the return of the complaint to the complainant for filing in appropriate Forum?
11. Admittedly, OPs have taken a preliminary objection that District Forum, Fatehgarh Sahib has no territorial jurisdiction to try the complaint as the property does not situate within the territorial jurisdiction of District Forum, Fatehgarh Sahib nor the company has its office there. But the District Forum has decided the application filed by the OPs, as objection on the territorial jurisdiction and in the said application, District Forum has recorded the following finding :-
"After hearing the Ld. Counsel for the parties and going through the record, we find force in the submissions of Ld. Counsel for the respondent/complainant as the summons issued to OP No.2 were duly served and OP No.2 appeared through counsel in this Forum. Moreover, said address of OP No.2 is not a residential address of said Anil Kumar Sood, Area Sales Manager. It is the address of a shop, opposite Baba Banda Singh First Appeal No.684 of 2017 7 Bahadur Engineering College, Fatehgarh Sahib. Therefore, it is clear that the OPs were running their office at District Fatehgarh Sahib. Various judgments submitted by the Ld. Counsel for the applicants/OPs in support of his contention are not relevant in the present case. Moreover as per Section 11 of the Consumer Protection Act, 1986, this Forum has got the jurisdiction to try and decide the present complaint. Accordingly, the present application filed by the applicants/OPs is hereby dismissed. For evidence of the OPs, the case is to come up on 06.03.2017."
12. The perusal of the order clearly indicates that the District Forum has got jurisdiction to try and decide the complaint and the said order was never challenged by the OPs. So, the issue with regard to the territorial jurisdiction has become final. The said order was passed by the Members of District Forum on 27.02.2017. No reference has been made in the impugned order about the application decided by above said speaking order, which is at page 86-88 of the District Forum record.
13. The present order of the District Forum apparently appears to be passed in a casual manner and indicates non- application of mind by the President and Member of the District Forum. It clearly indicates that the order has been passed by the President and Member of the District Forum in a casual manner. Once, the preliminary objection has been decided and it has been held the Forum has territorial jurisdiction, on the same ground, the complaint cannot be ordered to be returned on the ground of territorial jurisdiction. Otherwise, also no prejudice is being caused to the OPs once they have contested the complaint on merit and tendered the evidence.
First Appeal No.684 of 2017 8
14. In view of this, we find that the impugned order is not sustainable in the eyes of law and is liable to be set-aside. Accordingly, the same is set-aside and this appeal is allowed. Complaint is remanded to the District Forum for fresh decision in accordance with law. Copy of this order be brought to the notice of President and concerned Member and they be made aware that this fact would be recorded in their ACRs and Registry is directed to send the copy of this order to the District Forum, Fatehgarh Sahib and a copy of this order be placed on the personal files.
15. Parties are directed to appear before the District Forum, Fatehgarh Sahib on 12.02.2018.
16. Record of the District Forum be returned immediately.
17. Since there is shortage of postal stamps in this Commission, therefore, the appellant through his counsel and attorney of the respondents No.1&2 are directed to receive free certified copies of the order by hand and it is the responsibility of the learned counsel for the appellant to inform him accordingly, whereas copy to other party(ies) be send as per usual practice.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (KIRAN SIBAL) MEMBER January 22, 2018.
Lb/-