Consumer Court Jurisdiction

[sendtomanish]

Another Judgment in Jurisdiction Matter



NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSIONNEW 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

[sendtomanish]

New Delhi, June 26, 2008 Frowning on real estate developers who refuse to pay compensation for delayed deliveries, a court here has fined leading builders er Ansal Properties and Infrastructure (API) Rs. 27.3 lakhs for not handing over an apartment on time.
The National Consumer Redressal Commission also asked API to pay it Rs.50,000 for the ‘rough behaviour’ of one of its officials.
The case dates to 1998 when Kunj Behari Mehta booked an apartment in the Celebrity Homes complex API was developing in the Palam Vihar neighbourhood of west Delhi.
He deposited Rs.2.62 million and was promised possession in three and a half years.
When this did not happen, Mehta filed a case with the commission seeking damages of 24 percent per annum from the booking date to the delivery date on the amount he had deposited.
API contended that such heavy compensation was not justified since the price of the property had also appreciated in the meanwhile.
A two-member bench of the commission, headed by its president, Justice M.B. Shah, and member, Anupam Dasgupta, in its judgement earlier this week disagreed with the company.
‘In our view such contention of any builder is unjustified and unreasonable because after sale of the property, all the benefits accrue to the purchaser and not to the vendor,’ the commission maintained.
‘In any case, if such contention is accepted, the builders would earn millions of rupees by delaying the delivery of the possession of the flat for months together for one reason or the other,’ it added.
The commission ordered that the Rs.2.73 million fine be handed over to Mehta, who was finally given possession of the apartment late last year.
‘If the price of an immovable property increases, it cannot be said that the parties are not required to abide by their contractual obligations,’ the commission said.
‘In any case, it is the luck of the owner that the price of the property has increased and it cannot be said that it is for the benefit of the vendor.
‘The builder of the property cannot claim advantage on account of increase in price after sale,’ the commission ruled.
The commission also fined API Rs.50,000 for the high-handed and rough behaviour of its manager and ordered the money to be deposited in the Consumer Legal Aid Account.