K.S. Chaudhari, Presiding Member:— These appeals arise out of single order of State Commission; hence, decided by common order.
2. These appeals have been filed by the appellant against the order dated 21.10.2013 passed by the State Consumer Disputes Redressal Commission, UT, Chandigarh (in short, ‘the State Commission’) in CC No. 44/2013 - Gurpreet Singh v. Taneja Developers & Infrastructure Ltd. by which, complaint was partly accepted.
3. Brief facts of the case are that Ritu Sharma and Bharat Bhushan Sharma were allotted Floor No. 254-GF measuring 1322 Sq. Feet, in “Tuscan Residency” part of fully integrated Township TDI City in Sector 110-111 at Mohali vide provisional allotment letter dated 26.07.2011 (Annexure R-3). It was stated that the complainant purchased the said floor from Ritu Sharma and Bharat Bhushan Sharma and got it transferred from Opposite Party No. 1 on 20.08.2011 vide booking transfer certificate and paid 20% of the basic price of Rs. 36 Lacs. It was further stated that a Floor Buyer Agreement was executed between the complainant and Opposite Party No. 1 on 20.08.2011 at its Chandigarh Office. It was further stated that the basic price of the floor, in question, was Rs. 36 Lacs. It was further stated that the complainant opted for payment plan C, which was subvention plan, under which, he could take loan up to 75% of the base value. It was further stated that the complainant took loan of Rs. 25 lacs from Opposite Party No. 2, which was approximately 70% of the basic sale price of the floor, in question. It was further stated that the complainant paid a sum of Rs. 2 Lacs to Opposite Party No. 1 through cheque against proper receipt. It was further stated that the complainant also paid a sum of Rs. 55,000/- towards the balance external development charges and Rs. 42,277/- towards pending service tax, through cheque No. 741599 dated 9.5.2013, to Opposite Party No. 1. It was further stated that as on the date of filing of the complaint, the complainant had paid the remaining sale consideration, except Rs. 3,25,000/-. First instalment of loan was disbursed by OP No. 2 on 31.12.2011. OP No. 1 vide letter dated 15.4.2013 asked complainant to pay full and final amount of Rs. 5,04,180/- within 30 days, failing which, interest and holding charges would be payable. It was further submitted that possession letter was issued; though; only 50% construction work was completed. Complainant vide letter dated 9.5.2013 requested OP to withdraw possession letter and issue it after completion of construction work. Complainant also brought to notice of OP No. 1 many defects in the construction. OP No. 2 was also requested not to withdraw any pre-EMI. Alleging deficiency on the part of OPs, complainant filed complaint before District forum. OP No. 1 resisted complaint and submitted that complaint was not maintainable and learned State commission had no territorial jurisdiction to entertain the complaint as Mohali is under jurisdiction of Punjab State Consumer Disputes Redressal Commission. OP admitted initial allotment to Ms. Ritu Sharma and Bharat Bhushan Sharma and later on transferring floor in the name of complainant. It was further alleged that possession of floor was offered to the complainant on 15.4.2012, but complainant never turned up with payments of dues. Number of allottees had taken possession of floors. Denying any deficiency on their part, prayed for dismissal of complaint. OP No. 2 resisted complaint and submitted that as relief claimed in the complaint was below Rs. 20 lakhs, learned State Commission had no pecuniary jurisdiction to entertain the complaint. OP No. 2 can be held liable only if it has taken extra amount from complainant. Denying any deficiency on their part, prayed for dismissal of complaint. Learned State Commission after hearing both the parties allowed complaint and directed OP No. 1 to complete pending work in the allotted floor and hand over possession after obtaining necessary permission from competent authorities subject to payment of outstanding dues. OP No. 2 was directed not to charge any pre-earnest money interest till handing over of floor. OP No. 1 was also directed to pay Rs. 20,000/- as compensation and Rs. 7,000/- as cost of litigation. Complainant and OP No. 1 both filed appeals against impugned order along with application for condonation of delay in F.A. No. 33 of 2014.
4. Heard learned Counsel for the OPs and complainant in person and perused record.
5. As there is delay of only 15 days in filing Appeal No. 33 of 2014, I deem it appropriate to condone delay of 15 days for the reasons mentioned in the application and delay stands condoned.
6. Learned Counsel for OP submitted that as learned State Commission, UT Chandigarh had no territorial jurisdiction to entertain complaint, order passed by learned State Commission be set aside and complaint be returned to complainant for filing it before appropriate forum. Counsel for OP No. 2 also adopted same argument. Complainant who appeared in person submitted that as part of cause of action arose at UT, Chandigarh, order passed by learned State Commission is in accordance with law; hence, appeal filed by OP be dismissed and compensation be enhanced.
7. OP No. 1 has taken specific plea in the written statement that learned State Commission has no jurisdiction to entertain the complaint as built up floor is situated at Mohali under jurisdiction of Punjab State Consumer Disputes Redressal Commission. Learned State Commission while dealing with territorial jurisdiction observed as under:
“13. The first question, which arises for consideration, is, as to whether, this Commission has the territorial jurisdiction to entertain and decide the present complaint. The answer to this question is in the affirmative. The Floor Buyer Agreement was executed at Chandigarh. Since a part of cause of action arose at Chandigarh, this Commission has territorial jurisdiction, to entertain and decide the complaint”.
8. Learned State Commission assumed jurisdiction on the ground that Floor Buyer Agreement was executed at Chandigarh which is part of cause of action. Clause 38 of Floor Buyer Agreement runs as under:
“That in case of any dispute of differences arising out of or touching upon or in relation to the terms of this agreement including the interpretation and validity of the terms thereof then the same shall be resolved through mutual understanding. In case the parties fail to resolve the same within 30 days of communication of such dispute by the party raising the dispute, the same shall be referred to Arbitration of a sole Arbitrator who shall act as per the provisions of Indian Arbitration & Conciliation Act, 1996 as amended from time to time. Both the parties also agree that the person designated for appointing the sole arbitrator shall be Chief Executive Officer of the Company. The parties also agree that venue of the arbitration shall be at Mohali and subject to the exclusive jurisdiction of Mohali Courts only”.
9. Perusal of aforesaid clause reveals that parties agreed that venue of arbitration shall be at Mohali and subject to exclusive jurisdiction at Mohali Courts only. Learned Counsel for the OP submitted that as parties agreed to exclude jurisdiction of any other Court only Courts at Mohali had jurisdiction to entertain the complaint. In support of his contention, he placed reliance on judgment of Hon'ble Apex Court in (2013) 9 SCC 32 - Swastik Gases Private Limited v. Indian Oil Corporation Limited in which it was observed as under:
“31. In the instant case, the appellant does not dispute that part of cause of action has arisen in Kolkata. What appellant says is that part of cause of action has also arisen in Jaipur and, therefore, Chief Justice of the Rajasthan High Court or the designate Judge has jurisdiction to consider the application made by the appellant for the appointment of an arbitrator under Section 11. Having regard to Section 11(12)(b) and Section 2(e) of the 1996 Act read with Section 20(c) of the Code, there remains no doubt that the Chief Justice or the designate Judge of the Rajasthan High Court has jurisdiction in the matter. The question is, whether parties by virtue of clause 18 of the agreement have agreed to exclude the jurisdiction of the courts at Jaipur or, in other words, whether in view of clause 18 of the agreement, the jurisdiction of Chief Justice of the Rajasthan High Court has been excluded.
32. For answer to the above question, we have to see the effect of the jurisdiction clause in the agreement which provides that the agreement shall be subject to jurisdiction of the courts at Kolkata. It is a fact that whilst providing for jurisdiction clause in the agreement the words like ‘alone’, ‘only’, ‘exclusive’ or ‘exclusive jurisdiction’ have not been used but this, in our view, is not decisive and does not make any material difference. The intention of the parties - by having clause 18 in the agreement - is clear and unambiguous that the courts at Kolkata shall have jurisdiction which means that the courts at Kolkata alone shall have jurisdiction. It is so because for construction of jurisdiction clause, like clause 18 in the agreement, the maxim expressio unius est exclusio alterius comes into play as there is nothing to indicate to the contrary. This legal maxim means that expression of one is the exclusion of another. By making a provision that the agreement is subject to the jurisdiction of the courts at Kolkata, the parties have impliedly excluded the jurisdiction of other courts. Where the contract specifies the jurisdiction of the courts at a particular place and such courts have jurisdiction to deal with the matter, we think that an inference may be drawn that parties intended to exclude all other courts. A clause like this is not hit by Section 23 of the Contract Act at all. Such clause is neither forbidden by law nor it is against the public policy. It does not offend Section 28 of the Contract Act in any manner.
10. In the case in hand parties agreed that in case of dispute, venue shall be at Mohali and excluded jurisdiction of any other Court. In such circumstances, only Punjab State Consumer Disputes Redressal Commission had jurisdiction to entertain any dispute pertaining to Floor Buyer Agreement executed between the parties. Complainant submitted that this clause pertains only to venue of arbitration. No doubt, in this clause it has been mentioned that any dispute arising out of this agreement will be decided by arbitration at Mohali, but as it has been held by Hon'ble Apex Court that inspite of arbitration clause complaints are maintainable before Consumer Fora, it can very well be held that parties intended to get dispute resolved exclusively at Mohali which falls within jurisdiction of Punjab State Consumer Disputes Redressal Commission. Merely because part of cause of action has arisen at Chandigarh, learned State Commission, UT, Chandigarh does not get territorial jurisdiction to entertain complaint when there was specific clause in Floor Buyer Agreement restricting disposal of any dispute only at Mohali and learned State Commission has committed error in assuming jurisdiction and allowing complaint.
11. In the light of aforesaid discussion, when complaint was not entertainable by learned State Commission and complaint has to be returned for filing before appropriate Forum, it would not be appropriate to express opinion on other findings given by learned State Commission.
12. Consequently, Appeal No. 33 of 2014 filed by OP is allowed and impugned order dated 21.10.2013 passed in Compliant No. 44/2013 - Gurpreet Singh v. Taneja Developers & Infrastructure Ltd. is set aside and complaint is returned to the complainant for filing it before appropriate Forum. As complaint is to be returned Appeal No. 126 of 2014 filed by complainant becomes infructuous and appeal stands disposed of having become infructuous. Parties to bear their costs.