WHEELS WORLD vs AMARJIT SINGH GREWAL

- THIS appeal is directed against order dated August 22, 1994 passed by the District Forum, Bathinda whereby complaint by Amarjit Singh Grewal was allowed and a direction was given to the Opp. Party-appellant to refund a sum of Rs. 20,000/- with 18% interest thereon (per annum) from the date of deposit till the date of cancellation and costs of litigation of Rs. 2,000/-. It was further directed that the complainant would be entitled to interest after the date of cancellation till payment @ 18%. Facts in brief are that the complainant, Amarjit Singh Grewal, resident of Bathinda in response to advertisement issued in the news papers booked a car with the Opp. Party, a car dealer at Ambala Cantt. Alongwith payment of advance amount of Rs. 20,000/- paid through bank draft dated December 11, 1990 issued by State Bank of Patiala, Bathinda Branch. Allotment letter was issued in favour of the complainant on February 20, 1991, booking D-l Sipani Diesel Car. As mentioned in the order of allotment, delivery of the car was to be made before March 31, 1994. However, it was not done and the delivery was being delayed as per letters written to the complainant Vide letter dated March 31, 1992, delivery of the car was offered, however enhanced price of the car was demanded amounting to Rs. 1,90,000/- balance amount. The car was to be handed over on March 15, 1992. Originally, car was to be sold at the price of Rs. 1,80,000/- as mentioned in the allotment letter. In this manner, the enhanced price was claimed at Rs. 2,10,000/-. Car was not delivered and again a vague letter was written on July 20, 1992 to the complainant. Vide letter dated January 5, 1993, the complainant cancelled the booking of the car and requested the Opp. Party to refund the sum of Rs. 20,000/- paid in advance. It is on these premises that the complaint was filed. The Opp. Party contested the claim on different grounds. Jurisdiction of the District Forum at Bathinda to entertain the complaint was challenged. Though, there was some delay, it was asserted that the car in fact was offered. The order of booking the car was wrongly cancelled. The amount of Rs. 20,000/- received in advance was forwarded by the Opp. Party to the manufacturer of the car at Bangalore. According to the terms and conditions, the parties agreed that in case of any dispute, Bangalore Courts would have jurisdiction. Even otherwise, it was asserted that by mere payment of the advance amount through bank draft obtained at Bathinda, District Forum, Bathinda could not assume jurisdiction. The Opp. Party was working at Ambala Cantt. On merits, it was alternatively pleaded that only agreed interest could be clamed i.e., 8% as per Clause 9 of the agreement. In the rejoinder filed by the complainant, the stand taken up in the complaint was reiterated. It was asserted that the advance amount was deposited from Bathinda. The complainant was a consumer as defined and it was a case of deficiency of service. The assertion to the contrary made by the Opp. Party was denied. Both the parties produced affidavit in support of their allegations alongwith some documents.

WE have heard Mr. S.R. Bansal, Advocate for the appellant. Nobody put in appearance at the time of hearing arguments on behalf of the respondent. Although, on the last date of hearing, on behalf of Advocate for the respondent request was made for adjournment and the adjournment was allowed on the payment of Rs. 300/- as costs. Although, the learned Counsel for the appellant has vehemently argued on the points taken up in the grounds of appeal, however we are of the view that question of jurisdiction of the District Forum, Bathinda to entertain the complaint would decide the fate of the appeal.

The original form for booking of the car has not been produced by the Opp. Party. The complainant has not produced its copy. Thus with respect to the factum of booking of the car, reliance has to be placed on the pleadings and the affidavits of the parties produced. It was argued that as per terms and conditions of the allotment, only Court at Bangalore has the jurisdiction to entertain the dispute relating to the contract. Reference was also made to some decisions on the subject as well as printed terms and conditions, copy of which was produced on the record. Such specimen of terms and conditions contains 19 Clauses. It is Clause No. 18 on the basis of which argument was raised. It is mentioned therein that the disputes would be subject to the jurisdiction at Courts in the city of Bangalore. In para 2 of the rejoinder, the complainant stated that the alleged contractual clause (Clause No. 18) was unilateral and not binding upon the complainant''s rights. Since, the original contract has not been produced, it cannot be specifically held that the complainant has accepted the terms and conditions, specimen of which has been produced and would be bound by the same. The contention would have been accepted if it had been established that the complainant had signed under these terms and conditions of the contract and accepted the same. It is in this situation that it is not considered necessary to refer to the judicial pronouncements on the subject that by consent parties could choose a particular Court having jurisdiction to try the dispute and other Courts who may also have jurisdiction to entertain the dispute would be debarred from doing so. In para 1 of the complaint with regard to the booking of the car and payment of Rs. 20,000/- as advance, assertion was made in the following terms:- "1. The complainant after hearing wide publicity in the Newspapers and otherwise with regard to performance of Sipani-D1 (Diesel/Petrol) Car of Montana and under the allurement made by the Opp. Party got booked one Sipani-D1 Diesel Car and deposited with the Opp. Party the required advance amount of Rs. 20,000/- vide Bank Draft No. 069486 dated 11.12.1990 issued by State Bank of Patiala, Bathinda Branch."

IN the corresponding para 1 of the written statement filed by the Opp. Party, it was asserted that the complainant was not a consumer as the vehicle has not been sold and delivered. There is no specific assertion with respect to the facts mentioned in para 1 of the complaint. IN para 1 of the rejoinder, the complainant asserted that the Opp. Party was to provide service against consideration, and the complainant was a consumer as defined. IN the affidavit filed by the complainant, Amarjit Singh Grewal similar assertion was reproduced in para 1 thereof as contained in the complaint. IN the absence of any more details or evidence, the assertion as made in the complaint is taken into consideration. It only makes a mention that advance amount was paid through bank-draft issued by the State Bank of Patiala, Bathinda Branch. Otherwise, the Opp. Party the present appellant as already stated above, is a concern at Ambala Cantt. IN order to decide the question of territorial jurisdiction, it was incumbent upon the complainant to assert and prove either, (i) that the Opp. Party was actually and voluntarily residing or carried on business at the place or if there were more Opp. Parties, one of them at the time of institution of the complainant was actually and voluntarily residing or carrying on business at such a place; or (ii) the cause of action wholly or partly arose at a place. It is only the last Clause that can be applied in the case in hand to clothe jurisdiction with the District Forum, Bathinda to entertain the complaint. By merely obtaining a bank draft from State Bank of Patiala, Bathinda Branch by the complainant, which was forwarded to the Opp. Party, as is the case pleaded, it cannot be said that any cause of action much-lees part thereof accrued at Bathinda to clothe the District Forum, Bathinda jurisdiction to entertain the complaint The District Forum observed in the impugned order in para 10 that it was the case of the complainant that he deposited the advance money with the State Bank of Patiala, Bathinda Branch vide bank draft dated December 11, 1990, which was the collecting branch of the Opp. Party. It may have been so observed as orally argued by the parties'' Counsel and accepted by the District Forum. It may be observed that at the time of hearing before the District Forum, Bathinda, nobody on behalf of M/s. Wheels World was present. INcidently, before us, nobody has appeared on behalf of the complainant. The case thus is being disposed of as per assertions made on the record and not on any assumption. The District Forum also observed that since allotment letter was received by the complainant at Bathinda, therefore, District Forum, Bathinda would have jurisdiction to entertain the complaint. This approach again is incorrect. It is not the receipt of the allotment letter that would bestow any jurisdiction on the question of part of cause of action arising there. The delivery of the car, it has not been established or asserted was to be made at Bathinda. Such a question was considered by Himachal Pradesh State Commission in "K.K. Khanna v. District Town & Country Planning & Others" 1993 CPC 566. From Shimla the complainant booked a plot situated at Gurgaon with the Opp. Party-HUDA whose head office was at Chandigarh. Simply because the amount of earnest money was paid through Punjab National Bank, Shimla, it was held that the Commission at Shimla could not entertain the lis. Reliance was placed on the decision of the National Commission in Revision Petition No. 163/1991 "Ghaziabad Development Authority v. Smt. Sunita Garg" holding that the mere fact that the amount of initial deposit for the flat was remitted through the branch of Vijaya Bank at Chandigarh will not entitle the complainant to contend that any part of the cause of action had arisen at Chandigarh. The position in the present case being similar as in the two cases referred to above, we hold that the District Forum at Bathinda had no territorial jurisdiction to entertain the complainant merely on the ground that the earnest money was deposited through bank draft obtained from Bathinda Branch of the Bank or it was paid through Bathinda Branch of the Bank. Likewise, mere receipt of the allotment letter will not amount to any part of the cause of action arising within the territorial jurisdiction of District Forum, Bathinda. For the reasons recorded above, this appeal is allowed. The order of the District Forum is set aside. The complaint is ordered to be returned to the complainant alongwith documents produced by him for presentation of the same before the competent Forum. There will be no order as to costs. Appeal allowed.