SHANTI vs ANSALS HOUSING AND CONSTRUCTION LTD.

IN the present complaint, filed under Section 17 of the Consumer Protection Act, 1986 (hereinafter referred as ''the Act'') the case of the complainant is that her husband, in response to an advertisement of the opposite party, had booked a residential flat in the scheme known as "Ashiana", at Lucknow. The aforesaid residential flat was to comprise an area of 962 sq. feet and consists of two bed rooms with attached bath room, one drawing and dining room, staircase, kitchen, varandah, gallery etc. The complainant had the option of making the payment of the total cost of the flat in instalments as per Plan-A, under progress linked payment plan or instalment Plan-B spread over 30 months. The complainant opted for the payment of the total cost of the flat, booked by him, amounting to Rs. 2,65,000/-, in accordance with Plan-A and accordingly paid the registration amount of Rs. 26,900/- against Receipt No. 256 dated 3.2.1989 issued by the opposite party. Thereafter a flat No. 964 in Sector ''K'' Arzoo Type-''C'', Ashiana, Lucknow was allotted to the complainant. The complainant made the payments of instalment as per the requirements of the opposite party from time to time as detailed in paras 3 and 5 of the complaint. On 9.12.1989, the complainant requested for the transfer of the booking of the aforesaid flat, booked in the name of her husband, to be transferred in her name and as such paid a sum of Rs. 300/- as transfer charges against receipt dated 9.12.1989. Thus it is the case of the complainant that she has till date paid an amount of Rs. 2,59,050/- being 95% of the total price of the flat in question. IN the meanwhile, the opposite party revised the cost of the flat unilaterally from Rs. 2,65,000/- to 2,69,000/-. Thereafter the opposite party vide letter dated 12.1.1991 invited the complainant to take over the possession of the flat No. K-777 instead of K-964 earlier allotted to the complainant. However on reaching the site for taking over the possession of the flat in question the complainant received a shock when instead of a two bed room flat, a flat having only one bed room and of a much lesser area than the booked area was offered to her. The complainant however refused to take over the possession of the said flat and instead lodged a protest with the opposite party, who admitted its mistake vide letters dated 19.1.1991, 16.4.1991 and 17.7.1991 and also allotted a new flat No. 773 as well as promised early possession of the same. But despite the correspondence and the admission of its mistake the opposite party failed to deliver the flat, and therefore, the complainant has filed the present complaint before this Commission praying for directions to the opposite party to hand over the vacant physical possession of the flat booked and also to pay damages calculated @ 2,000/- p.m. w.e.f. 15.1.1991, together with interest amounting to Rs. 1,15,000/- together with pendente lite and future interest @ 24% p.a. and has also prayed for costs of the complaint.

THE opposite party has filed its reply/written version before this Commission controverting the averments made in the complaint and thereafter has filed an additional reply/written version on 16.2.1994 whereby certain preliminary objections have been raised, in view of the amendments in the Act w.e.f. 18.6.1993. THE preliminary objections raised by the opposite party in its reply/written version are that this Commission lacks the territorial jurisdiction to adjudicate upon the present complaint in view of Clause 24 of the letter of allotment dated 9.12.1989; that on account of amendments in the Act the pecuniary jurisdiction of the District Forum has been raised and as such, the complaint should be referred for decision to the District Forum; that the relief claimed by the complainant regarding the directions to opposite party to hand over the possession of the flat cannot be granted under Section 14 read with Section 17 of the Consumer Protection Act and the proper Forum for seeking the relief of specific performance of a contract lies before the Civil Court and as such, this Commission cannot entertain the present complaint. On merits, the defence of the opposite party is that as per Clause 6 of the allotment letter/agreement executed between the parties on 9.12.1989, the expected time for the completion of the project was four years from the date of commencement of the development of the mini city or about one and half years from the date of sanction of the building plan, whichever was later and that no claim by way of damages or compensation would lie against the opposite party in case of delay in handing over the possession. It is further stated by the opposite party in its reply that since the sanction plans of the building were conveyed to the opposite party on 13.9.1989, the possession offered to the complainant on 12.1.1991 was within one and half years period specified as per the above mentioned agreement. It was also alleged by the opposite party that though the flat booked by the complainant was to comprise an area of 962 sq. feet and was to be a two bed room flat, but on account of a mistake on the part of Lucknow Office of the opposite party, only one-bed room flat, having a lesser area than what was originally booked, could be offered for possession to the complainant, however the said mistake was immediately rectified and the complainant was assured of an early possession of a flat as per specifications mentioned at the time of booking. It was further alleged by the opposite party in its reply/written version that it was not only on account of the above said mistake by the opposite party that the possession of the flat was delayed but the delay also occurred on account of the fact that the complainant had not cared to pay the remaining amount due from him amounting to Rs. 50,437.77 being the balance amount of the price of the flat and, therefore, there is no deficiency in service on the part of the opposite party. The complainant has filed a rejoinder reiterating the contents of the complaint and denying those of the reply/written version of the opposite party. The complainant has also filed her own affidavit by way of evidence along with the relevant documents whereas no affidavit by way of evidence has been filed on behalf of the opposite party.

We have carefully perused the documents/material placed on record as well as have gone through the written submissions filed. We have also heard the arguments advanced on behalf of the parties. The first point for consideration which arises in view of the preliminary objections raised by the opposite party is whether this Commission has the territorial jurisdiction to entertain the present complaint having regard to Clause 24 of the allotment letter dated 9.12.1989 executed between the parties. The said clause reads that "any disputes arising out of this agreement shall be subject to jurisdiction of Lucknow Courts only". The contention of the complainant in this regard is that, since the Head Office of the opposite party is situated at Delhi, the State Commission, Delhi has the jurisdiction to adjudicate upon the complaint in terms of Section 11 of the Act. The validity and effect of such a clause, ousting the jurisdiction of all Courts except one, came up for consideration before the Hon''ble Supreme Court in case entitled A.B.C. Laminart Pvt. Ltd. & Anr. v. A.P. Agencies, Salem, reported as AIR 1989 SC 1239, wherein their lordships of Hon''ble Supreme Court have held : "So long as the parties to a contract do not oust the jurisdiction of all the Courts which would otherwise have jurisdiction to decide the cause of action under the law it cannot be said that the parties have by their contract ousted the jurisdiction of the Court. If under the law several Courts would have jurisdiction and the parties have agreed to submit to one of these jurisdictions and not to other or others of them it cannot be said that there is total ouster of jurisdiction. In other words, where the parties to a contract agreed to submit the disputes arising from it to a particular jurisdiction which would otherwise also be a proper jurisdiction under the law their agreement to the extent they agreed not to submit to other jurisdictions cannot be said to be void as against public policy. If on the other hand the jurisdiction they agreed to submit to would not otherwise be proper jurisdiction to decide disputes arising out of the contract it must be declared void being against public policy."

(Emphasis supplied)

IN the above mentioned decision, the Hon''ble Supreme Court also made it clear that before upholding the validity and applicability of an ouster of jurisdiction clause, it has to be considered, as to whether the clause excluding the jurisdiction of other Courts was within the knowledge and formed part of the agreement between the parties, and also whether the exclusion clause clearly, unambiguously as well as specifically by use of words like ''alone'', ''only'', ''exclusive'' and the like debarred the other Courts from exercising jurisdiction. It is only when all such conditions are fulfilled that it can be said that the jurisdiction of all the other Courts is barred in such cases. However where the ouster clause does not include such words, it would be necessary to interpret the same in terms of the conditions of the agreement so as to infer the intention of the parties. Therefore, applying the principles of law enunciated in the above decision to the facts in hand, it would be seen that the clause regarding ouster of jurisdiction forms part of the agreement/allotment letter dated 9.12.1989 executed between the parties and the fact that the same is duly signed by the complainant further fortifies the view that the said term/condition was well within the knowledge of the complainant and that both the parties were ad-idem regarding the conferment of jurisdiction, relating to dispute arising out of the said allotment letter, to the Lucknow Courts exclusively. Furthermore, the word "only" used in the said clause makes it amply clear that the intention of the parties was to exclude the jurisdiction of all other Courts except the Lucknow Courts, to entertain disputes relating to the allotment of the flat in question. Therefore, though both, the Delhi as well as the Lucknow State Commission share the territorial jurisdiction to entertain the present complaint, Clause 24 of the letter/agreement dated 9.12.1989 debars this Commission from entertaining and adjudicating upon the present complaint. Thus the preliminary objection regarding the bar of territorial jurisdiction is decided against the complainant and in favour of the opposite party and the present complaint is liable to be dismissed on this ground alone.

ACCORDINGLY, in view of the above observations the present complaint is dismissed, in the circumstances the parties are left to bear their own costs. It is however clarified that the complainant shall be at liberty to raise the issues in dispute in the present complaint before the Fora of appropriate jurisdiction, if so advised. The present complaint is disposed of in above terms. Complaint dismissed.