The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the behest of Opposite Party Nos. 1 and 2 i.e. a proprietorship construction firm represented by its proprietor to impeach the Judgment/final order dated 22.02.2016 passed by the District Consumer Disputes Redressal Forum, Howrah (in short, ‘Ld. District Forum’) in Consumer complaint No. 115 of 2015. By the impugned order, the Ld. District Forum allowed the complaint lodged by the respondent No. 1 Sri Palash Das under Section 12 of the Act ex parte without costs with the following directions:
“That the OP Nos. 1 and 2 are directed to return the balance amount being (Rs. 4,15,500/- - Rs. 50,000/-) = Rs. 3,65,000/- to the complainant within 30 days from the date of this order.
The complainant do get an award of Rs. 20,000/- as compensation toward mental agony and harassment and Rs, 5,000/- as litigation costs and the OP Nos. 1 and 2 are directed to pay the same within 30 days from the date of this order i.d., 8% p.a. interest shall be charged on Rs. 3,90,000/- till actual payment.
The complainant is at liberty to put the decree into execution after expiry of the appeal period.”
The respondent herein being complainant lodged the complaint before the Ld. District Forum stating that he entered into an agreement for sale with the Opposite Parties to purchase of a self-contained flat measuring about 750 sq. ft. super built up area on the first floor in a building christened M/s. Parbati Complex lying and situated at holding No. 11, G.T. Road, Serampore, Dist- Hooghly within the local limits of Serampore Municipality at a total consideration of Rs. 8,25,000/- i.e. @ 1100 per sq. ft. The complainant has stated that he has already paid Rs. 4,15,000/- out of said total consideration amount. It was agreed that the developer will handover the flat within December, 2011. However, the complainant has failed to complete the construction till the year 2013 for which the complainant asked for refund of earnest money and the developer has paid back Rs. 50,000/- to the complainant and despite repeated requests and reminders did not returned the balance amount of Rs. 3,65,200/-. Hence, the respondent No. 1 approached the Ld. District Forum with prayer for following reliefs, viz.- (a) refund of Rs. 3,65,000/- together with interest thereon @ 18% p.a. from the date of payment till realisation of the same alternatively to deliver the possession of the flat after receiving the balance consideration of Rs. 4,60,000/-; (b) payment of Rs. 2,00,000/- as compensation for loss or damages suffered by the complainant; (c) litigation costs etc.
Despite service of notice, the appellants or other Opposite Parties did not appear to contest. Under compulsion, the complaint was heard ex parte. After assessing the materials on record, the Ld. District Forum by the impugned order allowed the complaint lodged by the respondent No. 1 with certain directions upon Opposite Party Nos. 1 and 2, as indicated above. Being aggrieved and dissatisfied with the said order, the Opposite Party Nos. 1 and 2 have come up in this commission with the instant appeal.
Mr. Amit Pachal, Ld. Advocate for the appellants has confined his argument only on 2 points, viz.- (i) the Ld. District Forum had no territorial jurisdiction to entertain the complaint in view of the provisions of Section 11(2) of the Act and (ii) when the respondent No. 1 has already received Rs. 50,000/- and claimed refund, he ceased to be a ‘consumer’ and on that ground alone the Ld. District Forum should have dismissed the complaint.
Per contra, Mr. J.P. Roy, Ld. Advocate for respondent No. 1 submits that keeping in view the avowed object behind the legislation of the Act, liberal construction is required to be made and as such the impugned order should not be interfered with on technical ground.
I have scrutinised the materials on record and considered the submission advanced by the Ld. Advocates appearing for the parties.
On the threshold of discussion, we will first consider as to whether the Ld. District Forum had territorial jurisdiction to entertain the complaint. Needless to say, jurisdiction means the authority of a court/forum to administer justice subject to the limitations imposed by law. The limitations are three fold, viz.- (a) as to pecuniary jurisdiction; (b)as to territorial jurisdiction and (c) as to subject matter of the dispute.
Since the appellants have raised the point on territorial jurisdiction, let us see the averment in the petition of complaint. Admittedly, the schedule property is lying and situated within Serampore Municipality which falls within Hooghly district. The OP No. 1, proprietorship firm is carrying on their business from Serampore which also falls within the district of Hooghly. In paragraph 10 of the petition of complaint the complainant has spell out-
“10. That the entire or whole cause of action a rose at Howrah, since the agreement for sale has been executed at Howrah and the respective payment has been made at the house of the complainant within the District Howrah and the Ld. Forum has got the jurisdiction to entertain the present application.”
Now, proper appreciation of the matter, let us have a look to the provisions contained in Section 11(2) of the Act which is set out below:
“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 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 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.”
In the instant case, it is evident that the OPs carry on business from Hooghly District. The complainant lodged the complaint in the District Forum at Howrah only on the plea that the agreement for sale has been executed at Howrah and the respective payment has been made in the house of the complainant within the district Howrah. Such a statement is contrary to the provisions of Section 11(2) of the Act. There is no whisper in the petition of complaint as to how the cause of action wholly or in part arises within the jurisdiction of the Ld. District Forum, Howrah.
Needless to say, an order passed by a Forum/Court without any competency is a nullity in the eye of law. The Ld. District Forum without appreciating the proposition of law and without entering into its competency has passe
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d the impugned order. Therefore, the impugned order being not sustainable in the eye of law, the appeal should be allowed. For the reasons aforesaid, the appeal is allowed on contest. However, there will be no order as to costs. The impugned final order dated 22.02.2016 passed by the Ld. DCDRF, Howrah in complaint case No. 115/2015 is hereby set aside. The complaint is rejected being not maintainable for want of territorial jurisdiction of the Ld. District Forum. However, this order will not debar the respondent No.1/complainant to approach the appropriate forum in accordance with law. The Registrar of the Commission is directed to send a copy of the order to the Ld. District Consumer Dispute Redressal Forum at Howrah for information.