National Consumer Disputes Redressal
Pratap Chandra Sinha vs M/S. Kindle Developers Pvt. Ltd. & Anr. on 31 July, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 337 OF 2016 (Against the Order dated 19/01/2016 in Complaint No. 1237/2015 of the State Commission Delhi) 1. PRATAP CHANDRA SINHA S/O. SH. PRAMATHESH KUMARB SINHA, 1, P.C. BOSE ROAD, DANAPUR CANTT, PATNA BIHAR ...........Appellant(s) Versus 1. M/S. KINDLE DEVELOPERS PVT. LTD. & ANR. REGD. OFFICE : B-9, SECOND FLOOR, MODEL TOWN, DELHI-110009 2. PIYUSH TIWARI DIRECTOR, M/S. KINDLE DEVELOPERS PVT LTD., R/O. D-203, SECTOR-47, NOIDA, UTTAR PRADESH ...........Respondent(s)
BEFORE: HON'BLE MR. DR. B.C. GUPTA,PRESIDING MEMBER HON'BLE MR. DR. S.M. KANTIKAR,MEMBER
For the Appellant : For the Respondent :
Dated : 31 Jul 2017 ORDER
APPEARED AT THE TIME OF ARGUMENTS
For the Appellant
:
Mr. Rohit Kumar, Advocate
Mr. Rohitash Kumar, Advocate
For the Respondents
:
Mr. Karan Sachdeva, Advocate
PRONOUNCED ON : 31.07. 2017
O R D E R
PER DR. B.C. GUPTA, MEMBER This appeal has been filed under Section 19 read with section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 19.01.2016, passed by the Delhi State Consumer Disputes Redressal Forum, New Delhi (hereinafter referred to as State Commission), vide which, Complaint no. 1273/2015, Pratap Chandra Sinha v. M/s Kindle Developers Pvt. Ltd. & Ors. was dismissed in limini.
2. Brief facts of the case are that the present complainant/appellant Pratap Chandra Sinha filed a consumer complaint before the State Commission, stating that he booked an apartment for ₹ 64,37,500/- in the residential scheme to be constructed by the OP-1 in Sector- 79, Noida, U.P. and paid a consideration of ₹ 25,59,406/- for the same. The OPs were to deliver the possession of the fully-completed apartment to the complainant at the end of 36 months, as per the agreement between the parties.
3. In January 2015, the complainant went to the construction site only to find that there was no significant progress and by no stretch of imagination, the project could be completed within the stipulated period. The complainant, being dissatisfied with the unsatisfactory progress towards the completion of the project, decided to withdraw from the project and demanded his money back via email on 03.02.2015, to which he received a reply on 04.02.2015, stating that the procedure for refund from the OPs be complied with by the complainant. As per the complainant, the refund was not given, despite completing all the formalities. He, therefore, filed a complaint against the OPs alleging deficiency in service on their part and for the return of ₹ 25,59,406/- alongwith interest @ 18 %, with a direction to the OPs to pay interest @ 18% on ₹ 12,18,071/- for making unlawful gains to themselves and causing unlawful loss to the complainant, and directing OPs to pay ₹ 10 Lacs as compensation.
4. The State Commission vide their impugned order dated 19.01.2016 dismissed the complaint in limini and observed as follows:-
"3. At the very outset, it is mentioned that booking a flat was situated in Noida, agreement was executed in Noida as is clear from the copy of non-judicial stamp paper at page-14 and copy of application form at page-15. Hence, this Commission has no territorial jurisdiction.
4. The other fact is that as per clause 29 of the Builder Buyers' Agreement at page-31, the OP was to handover the physical possession of the apartment within 36 months from start of the construction i.e. 1st August, 2013. That time has not yet arrived and the complaint is premature."
5. Being aggrieved against the order of the State Commission, the complainant is before this Commission by way of the instant appeal.
6. During arguments, the learned counsel for appellant/complainant stated that the registered office of the OP-Builder was situated at Delhi and hence, the consumer complaint could very much be filed at Delhi under section 17 of the Consumer Protection Act, 1986. The office at Delhi is the main controlling office and the Directors of the company are situated at Delhi itself. The learned counsel further argued that the OP Builder had not offered the possession of the building in question, although they were required to do so within three years from the start of the construction, i.e., 01.08.2013, meaning thereby that the possession was to be delivered by the end of July 2016. The State Commission, should, therefore, be directed to decide the complaint on merits. The learned counsel has drawn attention to the order passed by the Hon'ble Apex Court in "Sonic Surgical v/s National Insurance Company Limited" [2010 (1) SCC 135], in support of his arguments.
7. Per contra, the learned counsel for the respondent stated that the project in question was located at Noida, U.P. The agreement between the parties was also signed at Noida and the Corporate Office of the OP Company was also located at Noida. The order passed by the State Commission, therefore, was in accordance with law, in so far as the issue of territorial jurisdiction was concerned. The learned counsel further argued that in accordance with the agreement, a further grace period of six months could be given for the completion of the project. Moreover, the penalty clause was also provided in the agreement, if the possession was not given in time.
8. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.
9. The main issue that merits consideration in the matter is whether the Delhi State Commission had the territorial jurisdiction to deal with the consumer complaint in question. As per the facts on record, not denied by either party, the registered office of the OP Developer is situated at Delhi. It is evident, therefore, that the affairs of the OP Company are being managed and controlled from Delhi. Section 17(2) of the Consumer Protection Act, 1986 reads as below:-
"17(2) A complaint shall be instituted in a State Commission within the limits of whose jurisdiction,--
(a) 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
(b) .................
(c) the cause of action, wholly or in part, arises."
10. It is evident from the wording of section 17(2)(a) that the consumer complaint could be filed at Delhi because the OP Builder is 'carrying on business' at Delhi in addition to other places. In so far as the order passed by the Hon'ble Apex Court in "Sonic Surgical v/s National Insurance Company Limited" (supra), is concerned, the Hon'ble Apex Court observed as follows:-
"In our opinion, the expression 'branch office' in the amended Section 17(2) would mean the branch office where the cause of action has arisen. No doubt this would be departing from the plain and literal words of Section 17(2)(b) of the Act but such departure is sometimes necessary (as it is in this case) to avoid absurdity. [vide G.P. Singh's Principles of Statutory Interpretation, Ninth Edition, 2004 P. 79]"
11. The Hon'ble Apex Court made it clear in the above order that the consumer complaint could not be filed at every branch office of an opposite party. A party could have a branch office at numerous places in the country, but the complaint should be filed at the place of a branch office, where the cause of action had arisen. It was also made clear that a departure from the literal words of section 17(2) was required as it was in the case under consideration. It is evident, therefore, that the order of the Hon'ble Apex Court is applicable to the case under consideration before them only and also refers to the issue of 'branch office' only. In the instant case, when the head office/registered office of the company is situated at Delhi, the consumer complaint can very well be filed at that place, considering the provisions of section 17(2) of the Act. The view taken by the State Commission is, therefore, not in accordance with law and deserves to be set aside and we order accordingly.
12. In so far as the time schedule for the completion of the project is concerned, it is true that the period of 36 months had not expired when the impugned order was passed by the State Commission. At the present juncture, however, the said period has already expired in June 2016. No valid explanation is forthcoming from the OP Builder, as to why they were not able to meet their commitment given in the agreement between the parties. It is necessary, therefore, that the matter should be adjudicated, after considering the merits of the case in detail.
13. Based on the discussion above, this appeal is allowed. The order passed by the State Commission is set aside and the matter is remitted to the State Commission with the direction that they should hear the parties in detail, allow them to lead necessary evidence in their favour and decide the consumer complaint in accordance as per law. The parties are directed to appear before the State Commission for further proceedings on 31 August 2017.
...................... DR. B.C. GUPTA PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER