It must, therefore, be held that though the District Forum, State Commission and National Commission are judicial authorities, for the purpose of Section 34 of the Arbitration Act, in view of the object of the Act and by operation of Section 3 thereof, it would be appropriate that these Forums created under the Act are at liberty to proceed with the matter in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceedings pursuant to a contract entered into between the parties. The reason is that the Act intends to relieve the consumers of the cumbersome arbitration proceedings or civil action unless the forums on their own and on the peculiar facts and circumstances of a particular case, come to the conclusion that the appropriate forum for adjudication of the disputes would be otherwise than those given in the Act.
| |||||||||||||
|
| ||||||
| Citation;2014(5)ALLMR(JOURNAL) 10 |
1. Being aggrieved by the order passed in Consumer Complaint No.135/2005 by the Additional District Consumer Disputes Redressal Forum, Mumbai Suburban, the present appeal has been preferred by the Complainant.
2. The facts necessary for deciding this appeal are summarized as under:
Mr.Dilip Kabra, the original Complainant and present appellant (hereinafter referred to as the Complainant for short) had filed consumer complaint under Consumer Protection Act, 1986 (hereinafter referred to as the Act for short) against the Sterling Holiday Resort, the original Opponent and the present Respondent (hereinafter referred to as the Opponent in short), claiming that there is deficiency in service on the part of the Opponent. As per the agreement between the parties the Complainant and the Respondent entered into an agreement of Time Shares for holidays. As per the Complainant, Opponent has not provided the accommodation in a resort as per the agreement and thus, there is deficiency in service and hence, the Complainant had filed complaint before the District Forum claiming compensation of `10,00,000/- and other reliefs during the pendency of the complaint.
3. The Opponent resisted the complaint by filing written say and admitted about the agreement between the parties. However, denied any deficiency in service. It was contended that the complaint deserved to be dismissed.
4. Considering the rival contentions and the record, the Ld.District Forum concluded that the said District Forum has no jurisdiction to entertain the complaint and thus, dismissed the complaint. It is against that order the Complainant came in appeal.
5. Considering the submissions, record and scope of the appeal, following points arise for our consideration and our findings are recorded against them for the reasons given below:
Points
|
Findings
| ||
(i)
|
Whether the District Forum has jurisdiction to entertain the complaint?
|
:
|
Yes.
|
(ii)
|
Whether it is necessary to remand the matter to District Forum?
|
:
|
Yes.
|
(iii)
|
What order?
|
:
|
As per order below:
|
REASONS:
Point No.(i)
From the submissions made before us and from the record it is clear that there was agreement between the Complainant and the Opponent about Time Shares. The District Forum has referred to Clause Nos.28 and 29 of the agreement between the parties, where the jurisdiction of the Court was limited to Madras Court. The District Forum has also referred the Clause No.28 about the reference of the dispute to arbitration at Madras. The Ld.District Forum has referred to a judgement of the Supreme Court in SLP (c) No.11455/2003 in case of ARIJIT PASAYATI (New India Assurance Co. V/s. United India Insurance Co. Ltd. & Ors. It was observed by the Honble Supreme Court that:
By a long series of decisions it has been held that where two Courts or more have under the CPC jurisdiction to try a suit or proceeding an agreement between the parties that the dispute between them shall be tried in any one of such Court is not contrary to public policy and in no way contravenes Section 28 of the Indian Contract Act, 1872
Relying on said authority Ld.District Forum has concluded that it is only at Madras Court or Arbitration at Madras have jurisdiction to entertain the dispute between the parties and the District Forum at Mumbai has no jurisdiction.
We find that there cannot be any dispute about decision of the Honble Apex Court, limiting the jurisdiction to any of the Courts. However, Ld.District Forum has lost the sight of the legal position that Section 3 of the Act provides an additional remedy. Said section reads as under:
The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.
The Ld.Advocate for the Appellant has submitted an authority reported in (1996) 6 Supreme Court Cases 385 (Fair Air Engineers Pvt. Ltd. and another V/s. N.K. Modi), by relying on the authority of (1994) SCC 243 (Lucknow Development Authority V/s. M.K. Gupta, the Honble Apex Court has observed that:
It must, therefore, be held that though the District Forum, State Commission and National Commission are judicial authorities, for the purpose of Section 34 of the Arbitration Act, in view of the object of the Act and by operation of Section 3 thereof, it would be appropriate that these Forums created under the Act are at liberty to proceed with the matter in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceedings pursuant to a contract entered into between the parties. The reason is that the Act intends to relieve the consumers of the cumbersome arbitration proceedings or civil action unless the forums on their own and on the peculiar facts and circumstances of a particular case, come to the conclusion that the appropriate forum for adjudication of the disputes would be otherwise than those given in the Act.
Admittedly, there is an agreement between the parties about Time Shares. Ld.Advocate for the Appellant has submitted an authority reported in III (2003) CPJ (NC) in the case of T.V. Sunderason & Anr. V/s. Sterling Holiday Resorts (India) Ltd., wherein the Honble National Commission relying on the case of Lucknow Development Authority V/s. M.K. Gupta, held that what the member purchased was his right of stay only and had to pay for separate services. When a member has purchased right of stay for seven days in a Resort and he is denied that right of stay or services rendered are not as per standard, agreed to, it is a clear case where there is deficiency in service on the part of owner running the resort. In view of the said authority of the Honble National Commission it is clear that the complaint filed by Complainant about deficiency in service is as per the Time Sharing Agreement. Thus, we find that in spite of the said agreement between the parties about limiting the jurisdiction of the Courts and arbitration at Madras, the District Forum at Mumbai has jurisdiction to entertain the complaint under the Act. Hence, we answer Point No.1 in affirmative.
Point No.(ii):
It is pertinent to note that the District Forum has disposed of the complaint on the ground that the District Forum has no jurisdiction to entertain the complaint. Other points were not considered by the District Forum. As this Commission has concluded that District Forum at Mumbai has jurisdiction to entertain the complaint case under the Act, obviously, we find it just and proper to remand the matter to District Forum to decide on other points.Therefore, we answer point no.(ii) accordingly. Hence, the order:
O R D E R
1.Appeal is allowed with costs of `2,000/- payable by the Appellant to the Respondent.
2.Order under appeal is quashed and set aside.
3.Matter is remanded back to the District Forum for deciding the matter on merit.
4.As the matter is very old one it should be decided expeditiously and within three months from the date of this order.
5.Parties should appear before the District Forum on 10/03/2014.
Pronounced on 21st day of February, 2014.
[HON'ABLE MR. P.B. Joshi]
|
Presiding Judicial Member
|
No comments:
Post a Comment