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Manohar Infrastructure & Constructions Pvt. Ltd. v/s Usha Yadav

    First Appeal No. 336 of 2021

    Decided On, 22 June 2021

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MS. JUSTICE DEEPA SHARMA
    By, PRESIDING MEMBER & THE HONOURABLE MR. SUBHASH CHANDRA
    By, MEMBER

    For the Appellants: I.P. Singh, Pawan Kumar Ray, Advocates. For the Respondent: None.



Judgment Text

Oral:

The present Appeal, under Section 19 of the Consumer Protection Act, 1986 (for short “the Act”) has been filed by the Appellant (Opposite Party before the State Commission) against the order dated 1.4.2021 of the State Consumer Disputes Redressal Commission, U.T. Chandigarh (for short “the State Commission”) in Complaint No. 63 of 2020 filed by the Respondent/Complainant.

2. By way of the present Appeal, the Appellant has only challenged the findings of theState Commission regarding its having “territorial jurisdiction”.

3. The brief facts of the case are that the Complainant had booked a flat in the residential colony named “the Palm” of the Appellant. This property was situated at Sector-17, SAS Mohali, State of Punjab. All the documents relating to the subject property were executed between the parties at Chandigarh. Some dispute arose between the parties. Due to the deficiency on the part of the Appellant, the Respondent filed the Complaint before the State Commission Chandigarh. Although, in the Written Statement filed by the Appellant, they did not object to the territorial jurisdiction of the State Commission at U.T. Chandigarh where the Complaint was filed. It was during the course of arguments that the issue regarding the “territorial jurisdiction” of the State Commission situated at U.T. Chandigarh, was raised. The State Commission vide the impugned order has rejected these contentions and arguments and has held that it had the territorial jurisdiction in view of the fact that the property was situated in Chandigarh and that all the necessary documents were also executed at Chandigarh. The argument of the learned Counsel for the Appellant that the agreement clause excludes the jurisdiction of the Courts except that of Courts at Punjab, was interpreted in the manner that the clause was vague since it does not speak of any particular District of Punjab and that since all the documents were executed at Chandigarh and the property is also situated at Chandigarh, under the Act, the State Commission at Chandigarh had the territorial jurisdiction.

4. These findings are impugned before this Commission. It is submitted that Chandigarh is a Union Territory and the parties since have agreed to invoke the jurisdiction of the Courts of State of Punjab, the State Commission at Chandigarh did not have the territorial jurisdiction.

5. We have heard the arguments and perused the relevant record.

6. Section 17 of the Consumer Protection Act, 1986 under which the said Complaintwas filed reads as under:

“17. Jurisdiction of the State Commission —[(1)] Subject to the other provisions of this Act, the State Commission shall have jurisdiction—

1. to entertain—

(i) complaints where the value of the goods or services and compensation, if any, claimed [exceeds Rupees twenty lakhs but does not exceed rupees one crore]; and

(ii) appeals against the orders of any District Forum within the State; and

(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any District Forum within the State, where it appears to the State Commission that such District Forum has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity.

[(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) 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 State Commission is given or the opposite parties who do not reside or carry on business or have a branch office or personally works for gain, as the case may be, acquiesce in such institution; or

(c) the cause of action, wholly or in part, arises.]”

7. Sub-section 2 of the said Section which is relevant for the purpose of this Complaint also reads as under:

[(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) 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 State Commission is given or the opposite parties who do not reside or carry on business or have a branch office or personally works for gain, as the case may be, acquiesce in such institution; or

(c) the cause of action, wholly or in part, arises.]”

8. This section gives jurisdiction to a State Commission where the Opposite Party is actually/voluntarily resides or carry on business or has a branch office or personally works for gain and/or where cause of action wholly or in part arises. It is not in dispute that the subject property is situated in Sector 17 of Chandigarh. This fact is also clear from the various documents including the receipts of payments issued by the Appellant. The property, therefore, was situated at Chandigarh and all the documents admittedly were executed at Chandigarh. Therefore, as per the definition of the provision of the Act, the State Commission at Chandigarh has the jurisdiction to entertain the Complaint.

9. Learned Counsel for the Appellant has vehemently relied on the exclusion clause ofthe agreement which reads as under:

“ 20.3 The venue of Arbitration shall be at Chandigarh and only the Courts at Punjab shall have the jurisdiction in all matters arising out of this Agreement.”

10. Learned Counsel for the Appellant has argued that Chandigarh is not a part of Stateof Punjab but a Union Territory and therefore, is excluded as per this term of the Agreement as the parties had agreed to exclude the jurisdiction of the State Commission at Chandigarh. This argument certainly is a meritless argument and against the law. By an agreement, the parties can exclude the jurisdiction of a place only when such jurisdiction lies in two or more places. Here it is apparent that the jurisdiction vests only in the State Commission at Chandigarh because all the documents were executed between the parties at Chandigarh and the property is also situated at Chandigarh and the Appellant is also carrying on its business at Chandigarh and is having its branch/permanent office at Chandigarh. From the facts of this case, it is, therefore, apparent that it is only the State of Chandigarh which has the jurisdiction and therefore, the jurisdiction of the State Commission at Chandigarh could not have been excluded by virtue of any agreement by the parties. It is a settled proposition of law that by virtue of an agreement the parties cannot confer a jurisdiction to a Court, where by virtue of definition, the jurisdiction does not lie. Here in this case, admittedly, all the documents between the parties were executed at Chandigarh and no part of the cause of action has arisen at any other place but Chandigarh. The parties thus could not have excluded the jurisdiction of Chandigarh. Any such agreement, which excludes the jurisdiction of Chandigarh, is contrary to the provisions of law and is an invalid agreement. Moreover, by this very clause, the parties had agreed to confer the arbitration jurisdiction to the

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venue at Chandigarh. If we read the entire clause together, it does not seem to be an intention of the parties to exclude the jurisdiction of Courts at Chandigarh. Had it been their intention to exclude the jurisdiction of Chandigarh, they would not have conferred the arbitral jurisdiction to Chandigarh. It is also apparent that the Appellant did not raise the objection regarding the territorial jurisdiction in the written statement filed before the State Commission but had raised it at the time of arguing the matter finally. The State Commission has duly considered this argument and has elaborately discussed it. It has also discussed on the entire laws relied upon and has reached to a finding. We do not find any infirmity or illegality in the impugned order. The present Appeal has no merit and is dismissed. 11. Copy of this order be sent to the Complainant. Appeal dismissed.
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