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Cosmos Infra Engineering India vs. Sameer Saksena dated 2012-12-12

 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
                        
(1)                         REVISION PETITION NO. 3117 OF 2012
(From the order dated 28-05-2012 in Appeal No. 964 to 998/2011
  of the State Commission, Haryana)
 
Cosmos Infra Engineering India
Ltd. (Previously known as Cosmos
Builders & Promoters Ltd.)                                               … Petitioner (s)       
      Versus
Sameer Saksena                                                     … Respondent (s)
 
(2)                    REVISION PETITION NO. 3247 OF 2012
WITH
I.A./1/2012(For stay)
(From the order dated 28-05-2012 in Appeal No. 964 to 998/2011
  of the State Commission, Haryana)
 
Cosmos Infra Engineering India
Ltd. (Previously known as Cosmos                        
Builders & Promoters Ltd.)                                     … Petitioner (s)       
      Versus
Shalu Sharma & Anr.                                               … Respondent (s)
(3)                       REVISION PETITION NO. 3248 OF 2012
WITH
I.A./1/2012(For stay)
(From the order dated 28-05-2012 in Appeal No. 964 to 998/2011
  of the State Commission, Haryana)
 
Cosmos Infra Engineering India
Ltd. (Previously known as Cosmos
Builders & Promoters Ltd.)                                        … Petitioner (s)       
      Versus
Bimla Kapoor & Anr.                                                  … Respondent (s)
(4)                      REVISION PETITION NO. 3249 OF 2012
WITH
I.A./1/2012(For stay)
(From the order dated 28-05-2012 in Appeal No. 964 to 998/2011
  of the State Commission, Haryana)
 
Cosmos Infra Engineering India
Ltd. (Previously known as Cosmos
Builders & Promoters Ltd.)                                               … Petitioner (s)       
      Versus
Kuldeep Sharma                                                           … Respondent (s)
- 2 -
 
(5)                   REVISION PETITION NO. 3250 OF 2012
WITH
I.A./1/2012(For stay)
(From the order dated 28-05-2012 in Appeal No. 964 to 998/2011
  of the State Commission, Haryana)
 
Cosmos Infra Engineering India
Ltd. (Previously known as Cosmos
Builders & Promoters Ltd.)                                            … Petitioner (s)       
      Versus
Shampa Chakraborty & Anr.                                         … Respondent (s)
(6)                    REVISION PETITION NO. 3251 OF 2012
WITH
I.A./1/2012(For stay)
(From the order dated 28-05-2012 in Appeal No. 964 to 998/2011
  of the State Commission, Haryana)
 
Cosmos Infra Engineering India
Ltd. (Previously known as Cosmos
Builders & Promoters Ltd.)                                               … Petitioner (s)       
      Versus
Sonu Jain & Anr.                                                           … Respondent (s)
(7)                   REVISION PETITION NO. 3252 OF 2012
WITH
I.A./1/2012(For stay)
(From the order dated 28-05-2012 in Appeal No. 964 to 998/2011
  of the State Commission, Haryana)
 
Cosmos Infra Engineering India
Ltd. (Previously known as Cosmos
Builders & Promoters Ltd.)                                               … Petitioner (s)       
      Versus
Sarita Arora & Anr.                                                      … Respondent (s)
(8)                    REVISION PETITION NO. 3253 OF 2012
WITH
I.A./1/2012(For stay)
(From the order dated 28-05-2012 in Appeal No. 964 to 998/2011
  of the State Commission, Haryana)
 
Cosmos Infra Engineering India
Ltd. (Previously known as Cosmos
Builders & Promoters Ltd.)                                     … Petitioner (s)       
      Versus
Amitabh Sehdev                                                  … Respondent (s)
 
(9)                    REVISION PETITION NO. 3254 OF 2012
WITH
I.A./1/2012(For stay)
(From the order dated 28-05-2012 in Appeal No. 964 to 998/2011
  of the State Commission, Haryana)
 
Cosmos Infra Engineering India
Ltd. (Previously known as Cosmos
Builders & Promoters Ltd.)                                     … Petitioner (s)       
      Versus
Alka Vishnu                                                         … Respondent (s)
 
BEFORE:
 
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
         
For the Petitioner (s)                 :         Ms. Vandana Bhatnagar, Advocate
 
Pronounced on:  12th  December, 2012
 
ORDER
Being aggrieved by common order dated 28.5.2012, passed by Haryana State Consumer Disputes Redressal Commission, Panchkula (for short, ‘State Commission’), petitioner/opposite party has filed these revision petitions.
2.       Brief facts are that respondents/complainants booked respective flats in Cosmos Executive Floors, Palam Vihar, Gurgaon.  Respondents executed agreement dated 2nd June 2005, with the petitioner.  The construction was to be done as per terms, conditions and   specification  as per agreement.  The possession was to be delivered in September, 2006. However, permissive possession was given to the respondents. After taking possession respondents found the changed site plan as against the plan supplied. Moreover, flats were found to be of sub standard material and not according to the  specifications.   There were several deficiencies and flaws in the flats which caused great harassment, mental agony and financial loss to the respondents. It is alleged that petitioner has adopted unfair trade practice.  Accordingly, respondents claimed compensation and damages for harassment, mental agony etc. and penalty for delayed possession.   
3.       Petitioner failed to file any reply before the District Consumer Disputes Reddresal Forum, Gurgaon (for short, ‘District Forum’).  Accordingly, defence of the petitioner  was struck off by the District Forum on 14.9.2009.
4.       After hearing the parties and after appraising the material on record, District Forum, vide order dated 25.5.2011,  dismissed the complaints being not maintainable on the ground of territorial jurisdiction. District Forum gave liberty to the respondents to fresh complaint in a Competent Court of Jurisdiction.
5.       Respondents challenged the order of District Forum before the State Commission.  Vide its order dated 26.7.2011, State Commission  set aside the order of the District Forum and remanded back the case to the District Forum to re-decide the same after following due procedure in accordance with law.
6.       Petitioner aggrieved by order dated 26.7.2011,  filed (Revision Petitions No.3196-3230 of 2011) before this Commission.
7.       Since order dated 26.7.2011 was passed by the State Commission without giving any notice and without hearing the petitioner, this Commission vide its order dated 5.3.2012 set aside that order and accepted the revisions of the petitioner.  The matter was remanded to the State Commission to decide it afresh, in accordance with law,  after giving opportunities to both the parties.
8.       State Commission after hearing the learned counsel for the parties, vide impugned order set aside the order of the District Forum.  It remitted back the cases to the District Forum, to re-decide it in accordance with law.
9.       Hence, the present revision.
10.     I have heard the learned counsel for the petitioner and gone through the record.
11.     It is contended by learned counsel for the petitioner that once agreement duly signed as per Clause No.33 of the Floor Buyer’s Agreement, has been executed between the parties, then the jurisdiction lies with  Delhi Courts only. Therefore, complaints filed by the respondents before the District Forum, Gurgaon are not maintainable. Further, the registered office of the petitioner is located at Delhi and petitioner works at New Delhi only.  Moreover, petitioner is not having any office or branch office located at Haryana.  Hence, jurisdiction could be conferred only at Delhi Courts.
12.     The  basic question which arises for consideration as to whether Delhi Forum alone has jurisdiction or respondents could have sought the jurisdiction of District Forum, Gurgaon, also.
13.     Clause No.33 of the Floor Buyer’s Agreement read as under;
“33.  That all disputes or differences arising between the Seller and the Purchaser in respect of any matter concerning this Flat Buyers Agreement shall be settled amicably between the parties failing which the same shall be referred for Arbitration to be adjudicated by a sole arbitrator, to be appointed by the seller and the venue for arbitration shall be at New Delhi the language of conducting the proceedings shall be English.  The arbitration shall be held in accordance with the provisions of Arbitration and Conciliation Act, 1996 or any statutory modification or enactments thereof for the time being  in force. The courts at Delhi/New Delhi alone shall have jurisdiction  to try and adjudicate upon any dispute  between the parties”. 
14.     Relevant provision of Consumer Protection Act, 1986 (for short, ‘Act’) which deals with the Jurisdiction of District Forum is Section 11 of the Act and it states;   
“11.    Jurisdiction of the District Forum-(1)   Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints, where the value of the goods or services and the compensation, if any, claimed [does not exceed rupees twenty lakhs].
(2)     A complaint shall be instituted in a District Forum within the local 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)     any 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, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or [carry on business or have a branch office], or personally work for gain, as the case may be, acquiesce in such institution; or
          (c)     the cause of action, wholly or in part, arises."
15.      State Commission in its impugned order observed;
”It is not disputed that immoveable property in question is located at Gurgaon, therefore, District Forum, Gurgaon cannot throw its liability upon the Courts at Delhi by taking the shelter of clause No.33 of the agreement because it is well settled proposition of law that by mentioning any specific   condition in the agreement one party cannot take the benefit of territorial jurisdiction of the courts of their own choice when the jurisdiction is otherwise vested in the District Forum at Gurgaon.  Even otherwise, the District Forum has itself given contradictory findings.  On the one side, it has observed that Gurgaon Forum has no territorial jurisdiction, however, on the other hand it has shifted the liability upon the Civil Court.  Out of two places of territorial jurisdiction, parties can choose one, but cannot create the jurisdiction upon a court of their own choice by entering into an agreement, which otherwise has no jurisdiction.”
16.     Though, as per Clause no.33 of the Floor Buyer’s Agreement executed    between the parties, only Delhi Courts have the jurisdiction. However, the Floor Buyer’s  Agreement, cannot be read in isolation.  It has to be read                      as whole.  Other relevant clauses of this agreement are quoted hereunder;
“Clause No.18.      That the Purchaser agrees and undertakes to abide by all laws, rule and regulations relating to Haryana Apartment Ownership Act, 1983 Haryana Urban Development Authority Town & Country Planning Department or any other statutory provisions as may be made applicable from time to time on the said land and for any breach thereof the purchaser shall be solely and exclusively responsible.
39.     That the Purchaser shall abide by all the laws, byelaws, rules and regulations of Town & Country Planning Haryana/HUDA/Local bodies or any other concerned authorities and shall be solely responsible for any breach thereof.
43.     That the Front & Rear Lawn on Ground Floor shall be the exclusive property of the Ground Floor Flat Owner(s), while the top terrace above Second Floor of the building shall be exclusive property of the Second Floor Owner(s), who shall have no right to raise construction of any kind whatsoever without prior approval from the Haryana Govt. of competent Authority in these portions.
44.     That the house tax shall be payable  by the Purchaser for the said Unit/Flat, to the Haryana Municipal Committee with effect from the date on which the liability of paying the house tax is fixed by the authorities for newly constructed building.  However, if the assessment of the property tax is not made separately for each Unit/Flat and a consolidated demand is made by the authorities, then in that event each Purchaser shall pay proportionate share to the Seller on the basis of the area of the Unit/Flat purchased.  If however the said Unit/Flat remains vacant, it shall be the responsibility of the Purchaser to take action to inform the authorities concerned in accordance with the provisions of Law and shall keep the Seller
 
indemnified for all the charges levied by any authorities on the Seller.”
17.     Thus, as per above clauses of the agreement, it is manifestly clear that if respondents have to  enforce the agreement, then only Courts at Gurgaon would have the jurisdiction.
18.     It is well settled principle of law that  where a relief is claimed in respect of compensation for wrong to, immoveable property situated within jurisdiction of different Courts, the suit may be instituted in any court within the local limits of whose jurisdiction any portion of the property is situated.
19.     Property in these cases, that is, floors in Cosmos Executive Floors, Palam Vihar are situated in Gurgaon. Since these floors have been constructed in Gurgaon only, it clearly shows that petitioner is “working for gain” at Gurgaon only.
20.     Thus, no jurisdiction or legal error has been shown to call for interference in the exercise of power under section 21 (b) of the Act, since State Commission in its order has given cogent reasons which does not call for any interference nor it suffer from any infirmity or revisional exercise of jurisdiction.
 21.    Under these circumstances, Gurgaon District Forum has got the jurisdiction to try the complaints of the respondents. Thus, I do not find any ambiguity or illegality in the impugned order.
 
22.     Accordingly, present revision petitions being without any legal basis, are hereby dismissed with cost of Rs.5,000/- (Rupees Five Thousand Only) each.
23.   Petitioner is directed to deposit the total cost of Rs.45,000/- (Rupees Forty Five Thousand only), by way of demand draft with ‘Consumer Legal Aid Account’ of this Commission, within eight weeks.
24.    In case, petitioner fails to deposit the aforesaid cost within the prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization.
25.     Pending application stands disposed of.
26         List on 22.2.2013 for compliance.
 
.…..…………………………J
(V.B. GUPTA)
PRESIDING MEMBER
Sg/

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