District South 24
Parganas
Before the Hon'ble
district Consumer Disputes Redressal
Forum, at bariupur South 24 parganas
Complaint Case no 41 of
2016
In The Matter of :
Sri Malay Bhattacherjee ,
................Petitioner
Versus-
Sri Asit Kumar Mishra and Others
..................Opposite parties
Written notes of argument
on admission hearing
1) Since the
petitioner running his grocery shop for his livelihood, through his
proprietorship firm M/s. Triparna Traders and therefore he place his order of
the grocery product on being came into the knowledge by the employee of the
opposite parties. The petitioner is a consumer under section -2(1)(d) of the
consumer protection act 1986.
2) That the
petitioner made his advance payment of total values of goods ordered by him to
the opposite parties. The opposite parties even after in receipt of such
payment did not deliver the goods
ordered by the petitioner, therefore the opposite parties established their
acts and deeds of deficiency in services and unfair trade practices.
3) It is patient to
state that at First the petitioner came into knowledge about the product and
services of the opposite parties on the visit of their employee, who acknowledge
about the product and services of the opposite parties to your petitioner at
his grocery shop at Charial Bazar, Budge
Budge under the jurisdiction of Budge Budge police station, District South 24
Parganas.
Secondly, your petitioner placed his order of grocery
product to the opposite parties, only on visit of employee of the opposite parties
at the shop of your petitioner at chorial bazar, budge budge, district South 24
Parganas.
Thirdly the payment
of the value of the product which has been ordered by the petitioner to the
opposite parties has been collected by the employee of the opposite parties on
his visit at the shop of the petitioner at chorial bazar, budge budge, South 24
Parganas on several occasions.
Fourthly the employee of the opposite parties visited
to the shop of the petitioner at chorial bazar, budge budge South 24 Parganas
on several occasion repeatedly and periodically and lastly on 9th day of July
2015 on his such visit, he acknowledge to the petitioner that the opposite
parties refuse and neglect to deliver the goods to your petitioner and
suggested to take legal recourses against the opposite parties.
In
view of the fact that the petitioner never visited the office of the opposite
parties rather the employee of the opposite parties visited the shop of your
petitioner who takes the order of goods, take the payment of total value of
goods, visited the shop on several occasion and acknowledge on his last visit
about the refusal and neglect in delivery of goods by the opposite parties,
therefore all the acts and deeds pertaining of the opposite parties has been
arises and cause of action in its totality
sustained at the shop of the petitioner at chorial bazar, budge budge,
South 24 Parganas.
4) Sec 11(2)(c) of Consumer
Protection Act 1986, it speaks about the jurisdiction of the district forum as
the cause of action wholly or in part arises, in the present case the fact
remain shows the cause of action wholly arises in the district of South 24
Parganas, i.e. the shop of your petitioner at chorial bazar, budge budge, South
24 Parganas, therefore the present case is well within the jurisdiction of
Hon'ble Forum to adjudicate the present case, in the interest of administration
of justice.
5) This is the case
where the petitioner in a consumer and consumer dispute and the cause of action
wholly arises at the shop of the petitioner at chorial bazar, budge budge, South
24 Parganas, therefore this is a appropriate case for admission for
adjudication, before the Hon'ble Forum.
6) That the petitioner relied on TATA COFFEE
LTD cases of NCDRC, NEW DELHI (RP NO 2475 to 2478 of 2010) decided on 7th March
2014, wherein THE four respondents had filed separate complain before The
District Consumer Forum, Bellary, seeking refund and compensation against the
revision petitioners. All four complains where allowed by the District Forum
and appeals against them have been dismissed by the State Commission by a
common order.
In brief as per
Hon'ble NCDRC all four complainant are brothers and their complaints have
arises from a single transaction of purchase of block board from the
respondent. All four used the materials in their respective houses for making
of furniture box type wardrobe, tv cabinet, dressing table and other furniture
item. The block after sometime where found to be affected by borer infestation.
They took up the matter with the vendor/ O.P but did not get appropriate
response. Hence four different complain where filled before the District Forum
Bellary with prayer for refund of cost and award of compensation.
In the above
mentioned landmark decision Hon'ble NCDRC has been pleased to observe keeping
in mind the essence of Section 11(c) of the consumer protection act 1986 that
complainant purchased block boards for making furniture items -After some item
block boards were found to be affected by borer intestation complaints filed at
Bellary opposite party objected that there was a stipulation in purchase bill.
Stating all disputes are subject to Bangalore jurisdiction. in this regard
Hon'ble Court has been pleased to observe that goods where deliver in Bellary -
Hence Jurisdiction lay with the District Forum Bellary. jurisdiction would lie
with the District Forum where the cause of action has arises whether wholly or
in part. In instance case the cause of action arise in Bellary, where the goods
were physically received and utilized. Therefore District Forum Bellary has
rightly exercised jurisdiction over the consumer complain because as per 11(c)
of the C.P. Act considering the "Cause of action" District Forum
Bellary has territorial Jurisdiction.
7) This case is a
classic example of the length to which large commercial organisations can
sometime go to deny the rightful claim of innocent consumer who repose their
implicit trust in them, based on the reputations that they enjoy. yet at the
moment of reckoning when the veneer peels away, the reputation on shows itself
to be only an illusion the trust totally misplaced. What reveals itself is a
powerful organization which consider that
it can do no wrong, books no opposition are consumer towards its action
and inaction is ready to justify its action any which way, rises every
conceivable objection before the Consumer Forum whether sound in law or not
fair or unfair tries to confuse and compound the issue involve and to divert
the attention of the juridical forums from the root of the matter prolongs the
litigation and eventually tries out the consumer .It prefers to rise the speech
of a simple consumer complain to that of a legal battle and to make large sums
of money, often public money, to tight search unnecessary battles rather than
accept that it is not in tillable and settle
the dispute in a just and fair manner. Consumer Forum which are expected to
dispose consumer cases by the summary procedure are forced to follow in the
footstep of civil court as multiple issues and objection are raised and once
raised have invariable to be death with an adjudicated upon.
8) Now we have to examine separately under
clauses (a), (b) and (c) of section
11(2) of the Consumer protection Act 1986, as whether the District Forum at
Baruipur South 24 Parganas have territorial jurisdiction over the complaint.
Clause (a) : This
clause has no application to the fact of the case as admittedly, not all the
opposite party resize or carry on business or have a branch office at the
District South 24 Parganas.
Clause (b) : This
clause applies to the case where there are more opposite party than 1 and
postulates that at least any one of them should, at the time of the institution
of the complaint either actually and voluntarily reside or carry on business,
or have a branch office or personally work for gain within the local limit of
the Jurisdiction of the Forum where the complaint is instituted provided
further that either permission o f the District Forum is obtained with
reference to the opposite parties who are not actually and voluntarily residing
or carrying on business or having a branch office or personally working for
gain within the local limit of the Jurisdiction of the Forum where the
complaint is instituted or they acquiesce in the institution of the complaint.
Clause (c) : Let us
now consider clause (c) section 11(2) of the act and also see whether the
clause of action In the complaint has arises party or wholly within the local
limits of the territorial Jurisdiction of the District Forum at South 24
Parganas. It cannot be disputed can a consumer
Dispute Redressal Forum is competent to
entertain a consumer complaint even if only and infinite simile part of the
clause of action arises within its territorial jurisdiction. Now cause of
action as is well known is a bundle of fact which taken with the law applicable
to them gives the plain tiff are right to relief against the defendant.
9) In the case at
hand the complaint who is a resident of South 24 Parganas placed his order for
purchasing grocery product and made payment of the total value of goods to the
opposite parties at his shop at Chorial bazaar, Budge budge, South 24 parganas,
therefore the facts having cause of actions arises within the district South 24
Parganas, and the present complaint is maintainable having proper Jurisdiction
under section 11(2)(c) of the Consumer Protection Act 1986.
Through___________
Advocate for the
Complainant, Date:17th Day of May,2016, Place: Baruipur, South 24
Parganas.
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