Research › Search › Judgment

Uttarakhand High Court · body

2014 DIGILAW 335 (UTT)

ASHOK AGGARWAL v. S. R. M. UNIVERSITY

2014-08-29

B.C.KANDPAL, D.K.TYAGI

body2014
ORDER (Per: Justice B.C. Kandpal, President): This is complainant’s appeal under Section 15 of the Consumer Protection Act, 1986 against the order dated 21.09.2010 passed by the District Forum, Dehradun, thereby dismissing his consumer complaint No. 206 of 2008. 2. Briefly stated, the facts of the case as mentioned in the consumer complaint, are that on the basis of the advertisement issued by the opposite party No. 1 – SRM University, Kattankulathur – 603 203, Kancheepuram District, Tamilnadu, Master Akshay Aggarwal, the son of the complainant, applied for admission in the said University in B.Tech. course for the academic session 2007-08 and appeared in the entrance test. The son of the complainant was granted provisional admission in the said University after deposit of Rs. 10,000/-. Later on, the fee of Rs. 1,55,000/- was deposited. The son of the complainant was asked to join the University on 22.08.2007. When the son of the complainant reached the University, he found that there were no world class facilities in the University, as was assured. He was granted room on the 10th floor of the hostel and there was no facility of elevator/lift. Later on, the son of the complainant was transferred to the opposite party No. 2, the Modinagar campus of the University. It was also alleged that excess amount of Rs. 44,000/- was charged from the complainant and that there was also no proper facility of hostel at Modinagar campus of the University also. The son of the complainant decided to withdrew from the University and the complainant asked the opposite parties for refund of the fee, which was declined by the opposite parties. Alleging deficiency in service on the part of the opposite parties, the complainant filed a consumer complaint before the District Forum, Dehradun. 3. The opposite parties filed written statement before the District Forum and pleaded that as per rules, sum of Rs. 75,000/- has been refunded to the complainant and that the District Forum, Dehradun has got no territorial jurisdiction in the matter. 4. The District Forum, on an appreciation of the material on record, dismissed the consumer complaint vide impugned order dated 21.09.2010. Aggrieved by the said order, the complainant has filed the present appeal. 5. We have heard the learned counsel for the parties and have also perused the record. 6. 4. The District Forum, on an appreciation of the material on record, dismissed the consumer complaint vide impugned order dated 21.09.2010. Aggrieved by the said order, the complainant has filed the present appeal. 5. We have heard the learned counsel for the parties and have also perused the record. 6. There is no dispute with regard to the fact that the SRM University, where the son of the complainant had taken admission, is situated at Kattankulathur – 603 203, Kancheepuram District, Tamilnadu and later on, he was transferred to the Modinagar campus of the said University. The opposite parties have specifically pleaded in para 15 of their written statement that no cause of action has arisen in favour of the complainant at Dehradun, so as to file the consumer complaint before the District Forum, Dehradun. 7. The copy of the application form dated 20.03.2007 submitted by Akshay Aggarwal, the son of the complainant with the SRM University is on record (Paper No. 6kha/4 of the original record). In the said admission form, the applicant – Akshay Aggarwal has made a declaration that all disputes are subject to the jurisdiction of the courts at Chennai only and that the fees paid on counselling and admission will not be claimed back under any circumstances and he along with his father (complainant) have voluntarily signed this declaration. The hall ticket for SRM Entrance Examination 2007-2008 (Paper No. 6kha/5) was also issued at Chennai and the counselling was also held at University Auditorium, SRM University Campus (Near SRM University Medical College), Kattankulathur, Kancheepuram District – 603203 (Chennai), Tamilnadu, as would be evident from the letter dated 09.05.2007 issued by SRM University (Paper Nos. 6kha/6 to 6kha/7). The mere reading of the advertisement issued by the University by the complainant or his son at Dehradun, will not confer the territorial jurisdiction to entertain and decide the dispute between the parties upon the District Forum, Dehradun. Learned counsel for respondents cited a decision of this Commission given in the case of Institute of Management Studies Vs. Arpan Jindal; I (2006) CPJ 408, wherein it was held that reading of the advertisement at a particular place, does not confer jurisdiction upon the Consumer Fora of that place. Learned counsel for respondents cited a decision of this Commission given in the case of Institute of Management Studies Vs. Arpan Jindal; I (2006) CPJ 408, wherein it was held that reading of the advertisement at a particular place, does not confer jurisdiction upon the Consumer Fora of that place. In the present case, as is stated above, the mere reading of the advertisement issued by the University by the complainant at Dehradun, will not give the territorial jurisdiction to the District Forum, Dehradun to entertain and decide the consumer complaint filed by the complainant against the University. In the instant case, it can safely be said that no cause of action, wholly or in part, has arisen in favour of the complainant to file the consumer complaint before the District Forum, Dehradun and in view of the specific provision of Section 11(2) of the Consumer Protection Act, 1986, which deals with the territorial jurisdiction of the District Forum, the consumer complaint could not have been filed before the District Forum, Dehradun. 8. This apart, the son of the complainant has made a declaration in the application form that all disputes are subject to the jurisdiction of the courts at Chennai only. Learned counsel for respondents also cited decision dated 16.09.2009 of this Commission rendered in First Appeal No. 82 of 2009; The Director, Directorate of Distance Education, Annamalai University Vs. Rakesh Kumar, wherein it was held that the complainant could not file the consumer complaint against the University for redressal of his grievance before the District Forum, Dehradun. In the said decision, this Commission placed reliance on the decision of the Hon’ble Apex Court in the matter of Mayor (H.K.) Ltd. and others Vs. Owners & Parties, Vessel M.V. Fortune Express and others; 2006 AIR SCW 863, wherein it has been held that, “when the court has to decide the question of jurisdiction pursuant to an answer clause, it is necessary to construe the ousting expression or clause properly to see whether there is ouster of jurisdiction of other courts. When the clause is clear, unambiguous and specific, accepted notions of contract would bind the parties and unless the absence of ‘ad idem’ can be shown, the other courts should avoid exercising jurisdiction. As regards construction of the ouster clause, when words like ‘alone’, ‘only’, ‘exclusive’ and the like have been used, there may be no difficulty. When the clause is clear, unambiguous and specific, accepted notions of contract would bind the parties and unless the absence of ‘ad idem’ can be shown, the other courts should avoid exercising jurisdiction. As regards construction of the ouster clause, when words like ‘alone’, ‘only’, ‘exclusive’ and the like have been used, there may be no difficulty. Even without such words in appropriate cases, the maxim ‘expressio unius est exclusio alterius – expression of one is the exclusion of another – may be applied.” It was further observed that the Hon’ble Supreme Court in the matter of Man Roland Druckimachines AG Vs. Multicolour Offset Ltd. and another; 2004 AIR SCW 3151 has held that, “undoubtedly when the parties have agreed on a particular forum, the courts will enforce such agreement. This is not because of a lack or ouster of its jurisdiction by reason of consensual conferment of jurisdiction on another Court, but because the Court will not be party to a breach of an agreement. Such an agreement is not contrary to public policy nor does it contravene Section 28 or Section 23 of the Contract Act.” Thus, when the complainant and his son had agreed for settlement of disputes by the courts at Chennai only, they can not invoke the jurisdiction of any other court / forum. Learned counsel for respondents further cited a decision of the Hon’ble High Court of Uttaranchal given in the case of N.K. Paliwal, Advocate Vs. Special Judge, Saharanpur and others; 2006 (1) U.D. 229 , wherein it has been held that an agreement between the parties that the dispute between them shall be tried in one Court is not contrary to the public policy and that such an agreement does not contravene Section 28 of the Contract Act. 9. Learned counsel for respondents also cited a decision of the Hon’ble National Commission in the case of Rajaram Corn Producers Punjab Ltd. Vs. Suryakant Nitin Kumar Gupta (HUF); 1996 (1) CPR 35, wherein it was held that where a company makes a public issue of shares, various applicants from different places apply for shares, it does not mean that a part of the cause of action will accrue to the applicants at the places they reside or are expected to receive the share certificates. 10. 10. Learned counsel for the appellant – complainant cited a decision of Madhya Pradesh State Consumer Disputes Redressal Commission, Bhopal in the case of ICFAI University and another Vs. Shailendra Lodha; II (2008) CPJ 356. In the said case, the complainant withdrew from the course and the fees was not refunded. It was held that there was deficiency in service on the part of the University. In the said case, the opposite party was having branch office / study centre at Indore and it was held that the respective Fora has jurisdiction to adjudicate the matter. In the instant case, admittedly, no branch office or study centre of SRM University is situated within the territorial jurisdiction of District Forum, Dehradun. Learned counsel for the appellant also cited a decision of Tamilnadu State Consumer Disputes Redressal Commission, Chennai given in the case of N. Arjunan and another Vs. The Dean, Merit Swiss Asian School of Hotel Management; IV (2004) CPJ 620. In the said case, the complainant could not continue second term due to ill health and his refund of fees was denied. It was held that the opposite party is liable to refund the deposited amount. In the case in hand, the first question is that of territorial jurisdiction and in view of the above factual as well as legal position, since the District Forum, Dehradun had no territorial jurisdiction in the matter as no cause of action, either wholly or in part, has arisen in favour of the complainant at Dehradun and hence we need not comment upon the merits of the case. However, the factual and admitted position is that sum of Rs. 75,000/- had been refunded by the opposite parties to the complainant on 23.12.2008, as is evident from the record. 11. However, since no cause of action had arisen in favour of the complainant at Dehradun so as to file the consumer complaint before the District Forum, Dehradun and hence the District Forum was absolutely justified in dismissing the consumer complaint vide impugned order, which does not call for any interference and is fit to be upheld. The appeal being devoid of merit, is liable to be dismissed. 12. For the reasons aforesaid, appeal is dismissed. However, the appellant – complainant, if he so wishes, may file a consumer complaint before the District Forum having territorial jurisdiction in the matter. No order as to costs.