Ranibai Agnihotri Physical Education College vs Sikandarkhan Dadamiya Tanwar

BOTH these proceedings arise from order dated 28th Feburary, 2003 rendered by the learned Banaskantha District Consumer Disputes Redressal Forum at Palanpur in Darkhast No. 17/2001 directing the opponent No. 1 Rani Agnihotri Physical Education College of Wardha (Maharashtra) to pay to the complainant Rs. 37,000 with interest @ 12% p.a. from 6.11.1998 till payment and to refund the amount of Rs. 2,000 sent by the complainant by way of demand draft to the opponent institution. It would appear that the original complainants filed complaint bearing No. 96/1999 and it was decided on 15th December, 2000 with similar directions, but in appeal bearing No. 433/2001 decided on 24th September, 2001 the matter was remanded to the learned Forum to hear and decide the question of jurisdiction in the complaint which came to be decided in the aforesaid execution application.

WE have heard the learned Advocates for the parties. We have gone through the impugned order. It would appear that the complainant had occasion to send application to the opponent institution for getting admission in B.P.E.D. for the year 1998 -99 along with demand draft of Rs. 2,000 dated 2.11.1998 drawn by the State Bank of India Palanpur Branch in favour of the opponent College at Wardha. It was the complainants case that he sent the application along with original certificates of H.S.C., Leaving Certificate and Mark -sheet of B.A. Examination by registered post A.D. to the opponent college. Inspite of lapse of considerably a long period the complainant neither got the admission nor the acknowledgement as token of receipt of the application from the opponent institution. Complainants registered letter was delivered to the opponent institution on or around 6.11.1998. After serving notice to the opponent complainant approached the learned Forum with prayers for refund of the amount of demand draft along with interest and compensation alleging that he could not prosecute further his studies in other faculty or institution for want of the original documents, and cost of the complaint.

WHEN the opportunity was accorded to the opponent for submitting its defence it resisted the complaint inter alia on the ground that learned Forum did not have territorial jurisdiction to hear the complaint, that the application and original certificates with Xerox copy of one set of the certificates were received by the opponent on or around 2.11.1998, that appropriate processing of the application had been taken up by the opponent institute, but the complainant did not turn up for getting admission and did not pay further fees as per the rules, that the admission form contained declaration to the effect that the information submitted by the applicant was true and that the applicant would pay the prescribed fees and other fees and also abide by the rules of the University and that fees paid would not be refunded to the applicant. It has been asserted that the University would formalize the application after verification of the degree certificate and marklist and the decision of the university would be final. Opponent No. 1 has also asserted that without prejudice to the contentions taken by it in the written statement it sent demand draft of Rs. 2,280 being the refund of the deposit amount with interest @ 14% from 2.11.1998 to 2.11.1999 and the original certificates which were sent by the complainant. That reply was filed on 27.10.1999.

LEARNED Forum proceeded to deal with the dispute of jurisdiction and held that if the complainant had filled in the form sent by the opponent institute from Palanpur, part of cause of action had arisen within the jurisdiction of the learned Forum. Learned Forum does not appear to have given effect to the demand draft for refund of the amount sent by the opponent institute along with reply and also complainants certificates (certificates sent by the opponent along with the reply). It has been submitted on behalf of the opponent institute that the learned Forum did not have jurisdiction to hear the complaint as no cause of action or any part thereof could be said to have arisen at any place within the jurisdiction of the learned Forum. It has also been submitted that the demand draft sent by the complainant sent by post was payable at Wardha and, therefore, payment also could not be said to have been made at Palanpur. In our considered opinion this submission merits acceptance. The complainant sent the application form along with draft payable at Wardha by post. It was technically a proposal form for getting admission in the opponent college. If it was accepted at Wardha jurisdiction could be said to have arisen at Wardha. Merely because application form was sent from Palanpur it could not be said that part of cause of action arose at Palanpur. Thus, factually the learned Forum did not have jurisdiction to hear the complaint since no part of cause of action had arisen within the territorial jurisdiction of the learned Forum. It is this connection that the learned Advocate for the complainant would refer to the decision of the Apex Court in the case of M/s. Vikas Motors Ltd. v. Dr. P.K. Jain, reported in II (1999) CPJ 44 (SC)=AIR 2000 SC 102. It has been relied upon for the submission that question of jurisdiction could not be raised by the opponent at a belated stage and that too after having submitted to the jurisdiction of the learned Forum. It is not in dispute that the question of jurisdiction was raised by the opponent College at the initial stage when it had opportunity to defend the complaint upon remand of the matter by this Commission to the learned Forum. In fact the written statement was submitted at the earliest. Merely because opponent refunded the amount with interest it cannot be said that it submitted to the jurisdiction of the learned Forum. Hence the decision of the Apex Court saying that question of jurisdiction could not be raised at a belated stage after participating in the proceedings would not be applicable to the facts of the present case.

REFERENCE has also been made to a decision of the Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad in the case of The Marketing Manager, Samayam v. Pulle Subrahmanya Sastry, reported in II (1994) CPJ 500. In that case the complainant deposited Rs. 6,500 as security with the opposite party in response to the advertisement which was issued from Hyderabad. The deposit was also made at Hyderabad. Agreement was entered into at Hyderabad. Under such circumstances the State Commission held that part of cause of action had arisen within the territorial jurisdiction of the particular place (East Godavari District) where the complainant offered to transport the papers on routes situated in that district. Facutally the case before the Andhra Pradesh State Commission was one of part of the cause of action having arisen in the concerned district. In the present case no cause of action could be said to have arisen within the Palanpur District. In our considered opinion the said decision would not support the cause of the complainant in the matter of territorial jurisdiction.

THIS Commission had an occasion to examine the question of territorial jurisdiction while making reference to the decision of the Apex Court in the case of Morgan Stanley Mutual Fund v. Kartick Das, II (1994) CPJ 7 (SC) in Appeal Nos. 28 -29/2000 and 48 to 59/2000 decided on 1st May, 2001 and the same squarely applies to the present case. Hence the matter need not be heard on merits and a direction that the complainant should approach concerned Forum situated within the district of Wadhwa in Maharashtra need be given.

ASSUMING we are requiring to consider the merits of the matter it would appear on the face of complaint and the accompanying papers that the complainant was not required by the first opponent to send original certificates. Merely because he alleged to have sent the original certificates the opponent college cannot be held responsible for the same. Besides, scrutiny of the papers would take some time. Complainant had taken no action either to visit the college or to enquire in the office of the college about the fate of his application. He enquired through postal department. Besides, from the application form Xerox copy whereof has been produced on the record it is clear that what is stated therein is that he was enclosing Xerox copy of the certificates certified to be true and there is no mention about the original certificates having been sent. It appears that both the parties have been mistaken as to whether original certificates were sent or merely true copies. Be that it may, the complainant could have obtained duplicate certificates if he had urged necessity of prosecuting further his study or for applying for any service in the State of Gujarat. The prayer for compensation set up by the complainant on the ground that he could not further his studies and subsequently set up case of loss of job opportunity on account of want of original certificates appears to be remote and vague in nature. In our considered opinion such a prayer could hardly have been made. In the first place claim of damages clearly appears to be remote in nature. In the second place the complainant had the opportunity to mitigate the alleged loss and he did not avail of the same. It is also not clear that what the complainant received back were the original certificates or Xerox copies of the certificates certified to be true and sent by him to the opponent institution. However, it is certain he received back his application money with interest and those certificates he sent to the opponent institution. Under such circumstances no direction could ever have been issued for refund of the amount by the learned Forum. As a matter of fact the learned Forum ought to have held that upon receipt of the amount with interest along with the certificates the matter became academic in nature and not surviving.

IN above view of the matter impugned order dated 28th February, 2003 rendered in Darkhast No. 17/2001 of Consumer Case No. No. 96/1999 by the learned Banakantha District Consumer Disputes Redressal Forum will stand set aside. The complaint shall stand disposed of accordingly. This appeal is accordingly allowed with no order as to cost throughout. Caveat will also stand disposed of accordingly. Appeal allowed.