Friday, August 30, 2013

Territorial Jurisdiction of the Consumer Court's

The biggest question that often baffles the Home Buyers when faced by deficiency and unfair trade practices of their respective colonizers is; which court would have territorial jurisdiction to admit their Complaint!! Most often, the Home buyers are mislead into believing that the Builder Buyer Agreement, mandates the place and court, which the Buyer has to approach, in case a dispute arises with the Builder. Here is a judgement of the Apex Consumer Forum which would help home buyers to understand the provisions and Objects of the Consumer Protection Act, 1986. The Apex Court in limine, allowed the appeal of home buyer, where the OP had contested the Jurisdiction of the court.





 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
Interim Applications Nos. 1 and 2 of the 2010
in

First Appeal No. 426 of 2010

(From the order dated 24.09.2010 in Complaint Case No. C-9/208 of the Delhi State Consumer Disputes Redressal Commission, Delhi)
Neha Singhal
D/o Shri Anil Kumar Singhal
R/o 61, Ashoka Cresent
DLF City, Phase - I
Gurgaon -122 002
........ Appellant
Vs

M/s. Unitech Limited
6, Community Centre
Saket, New Delhi – 110 017
........ Respondent
Interim Applications Nos. 1, 2 and 3 of the 2010
in

First Appeal No. 442 of 2010

(From the order dated 24.09.2010 in Complaint Case No. C-9/176 of the Delhi State Consumer Disputes Redressal Commission, Delhi)
Shri Abhishek Singhal
S/o Shri Anil Kumar Singhal
R/o 61, Ashoka Cresent
DLF City, Phase - I
Gurgaon – 122 002
........ Appellant
Vs

M/s. Unitech Limited
6, Community Centre
Saket, New Delhi – 110 017
........ Respondent
BEFORE:

 HON’BLE MR. ANUPAM DASGUPTA,   PRESIDING MEMBER
For the Appellants                   Mr. Vikas Tomar, Advocate



Pronounced on  18th February 2011

ORDER


ANUPAM DASGUPTA



            These two appeals arise from two separate orders dated 24th September, 2010 passed by the Delhi State Consumer Disputes Redressal Commission, Delhi (in short, ‘the State Commission’) in complaint cases Nos. C – 9 / 2008 and C – 9/ 176. Though the orders are separate, they are identically worded and involve the same issue, viz., the territorial jurisdiction of the State Commission to entertain the above-mentioned complaints.
2.     Observations in this regard made by the State Commission are re-produced below:
A preliminary objection has been raised by the OP builder by filing an application about this Forum having jurisdiction to try the case. It has been pointed out by the counsel for the OP that there is clear agreement between the parties to the effect that any complaint in this regard be filed at Noida, Gautam Budh Nagar. The contention from the side of the company is that the agreement was executed between them in Delhi and the payment was also made in Delhi, and the registered office of the OP builder is also in Delhi, and that is why Forum at Delhi will have jurisdiction.
We have heard Shri Vikas Tomar, counsel for the complainant and Shri Sunil Goel, counsel for the OP.
If there had been no agreement between the parties about jurisdiction, the Delhi Forum would certainly have jurisdiction to try the case, in accordance with Section 11 of the Consumer Protection Act, 1986, but since the parties have already agreed, the Courts only at Noida, Gautam Budh Nagar shall have jurisdiction, and the complaint can lie only at Noida, Gautam Budh Nagar in the State of UP.
In view of the agreement, the complainant is estopped and cannot resile from the agreement. Justice and fair play, and judicial ethics demand that the parties should be made to adhere to their mutual agreement and the only Forum at Noida, Gautam Budh Nagar in the State of UP where it shall have jurisdiction to try the complaint”.
3.     Thus, the State Commission proceeded to dismiss the complaint in limine entirely on the ground of its territorial jurisdiction citing the provision of a specific clause relating to this issue in this agreement between the parties.
        In a similar case (FA No.  425 of 2010 – Munish Sahgal vs DLF Home Developers Limited), the State Commission had taken the same view. The above-mentioned appeal was allowed by this Commission, vide order dated 9th February 2011, based on the decision dated 11th April 2002 of a 3 – Member Bench of this Commission in FA No. 142 of 2001 (Smt Shanti vs M/s. Ansal Housing and Construction Ltd.) The only point of some relevance in this case is that the housing property in question is located in NOIDA, Gautam Buddha Nagar, Uttar Pradesh. However, that fact alone cannot suffice to oust the territorial jurisdiction of the (Delhi) State Commission to adjudicate upon the complaint, in view of the specific provisions of section 11 (2) (b) of the Consumer Protection Act, 1986 (‘the Act’). To emphasise, the clause relating to jurisdiction of “courts” in the agreement between the parties cannot by itself over-ride the statutory right of the appellant/ complainant conferred by the above-mentioned provision of the Act – that would defeat the purpose and object of the Act. This view is also in accord with the provisions of section 28 of the Indian Contract Act, 1872 (as amended with effect from 8th January 1997).
5.     For these reasons, the impugned order of the State Commission is set aside and both the appeals are allowed in limine. The complaints are, therefore restored to their original status, for the State Commission to consider and adjudicate upon in accordance with law, after affording due opportunity to the parties. The appellants shall remain present before the State Commission on 21st March 2011 to receive further directions.

Sd/-
………………………..
[ Anupam Dasgupta ]
                                                                                                                Presiding Member
Satish

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