SEEDHESHWARI PROMOTORS And BUILDERS (P) LTD. vs ASHA THADANI

THIS order will dispose of Appeal Nos. 421 and 412 of 1994 which arise out of the same judgment of the District Forum-II (D.F) dated 8th July, 1994. The brief facts in the order are being given from A421 of 1994.

THE Opp. Party (OP) is carrying on the business of selling plots after developing them. THEy developed a residential area known as Vikrant Vihar in Ghaziabad. THE complainant applied for a plot of 500 sq. yards therein. THE 40% of the total price was to be paid at the time of booking the plot and the balance was to be paid in 36 monthly interest-free instalments. He was allotted Plot No. B-69 in December, 1988. He, in all paid to them Rs. 43,200/-. It is alleged that the plots have not been developed by the Opp. Party. Consequently, he filed a complaint for damages and refund of the amount. The complaint was contested by the Opp. Party. They inter alia pleaded that there was an agreement between the parties that all the disputes between them would be subject to the jurisdiction of the Ghaziabad Courts and, therefore, the D.F. has no jurisdiction to entertain the complaint. They further pleaded that the plots had been developed by them according to the agreement and the possession of the plot could be taken by the complainant.

The D.F. held that the Forum had the jurisdiction to entertain the complaint and that the plots had not been fully developed in accordance with the agreement between the parties. Consequently, it accepted the complaint and directed the Opp. Party to refund the amount deposited by the complainant to him along with interest @15% p.a., compounded annually, from the dates the deposit of the amounts upto the date of the a actual refund. The Opp. Party has come up in appeal against the said order.

THE first question that arises for determination is, whether there was an agreement between the parties that all the disputes between them would be decided only by the Courts at Ghaziabad. It is not disputed that the land which is being developed by the appellant is situated within the jurisdiction of Ghaziabad Courts. THE learned Counsel for the appellant has vehemently argued that for the first time when the amount of Rs. 1,000/- was deposited by the complainant on 28.7.88, a receipt was issued to him, on which it was mentioned that all the disputes would be settled only by the Ghaziabad Courts. In view of the said agreement the respondent-complainant could not file the complaint at Delhi. On the other hand Counsel for the respondent has argued that no such condition was mentioned in the brochure issued by the appellant. Even no such condition had been included in the agreement entered into between them. It was mentioned in the receipt only, which does not bear his signatures. He was, therefore, not bound by that clause.

WE have duly considered the arguments of the Counsel for the parties. It cannot be disputed that in case there is a contract between two persons wherein it is provided that the disputes arising from the contract would be settled only by the Courts situated at a particular place, the Courts at the place only shall have the jurisdiction to decide the disputes if those Courts have the territorial jurisdiction to entertain the same. Reference in this regard may be made to A.B.C. Laminart Pvt. Ltd. v. A.P. Agencies, Salem, AIR 1989 S.C. 1239, wherein it was observed that where the parties to a contract agreed to submit the disputes arising from it to a particular jurisdiction, which would otherwise also be a proper jurisdiction under the law, their agreement to the extent they agreed not to submit to other jurisdictions cannot be said to be void as being against public policy. If on the other hand the jurisdiction they agreed to submit to would not otherwise be proper jurisdiction to decide disputes arising out of the contract it must be declared void being against public policy. Section 28 of the Contract Act also leads to the same conclusion i.e., that the parties should be bound by jurisdiction clause agreed to by them. It is further observed that where an ouster clause occurs, it is pertinent 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. Even otherwise without such words in appropriate cost the maxim, ''expressio unius est exclusio alterius'' - expression of one is the exclusion of another may be applied. What is an appropriate case shall depend on the facts of the case. In such a case mention of one thing may imply exclusion of another. It is also observed that when certain jurisdiction is specified in a contract an intention to exclude all other from its operation may in such cases be inferred. Now adverting to the facts of the present case, it is relevant to point out that at the back of the receipts of Rs. 1,000/- (dated 28.7.88) and Rs. 10,520/- (dated 1.8.85) there is a clause which excludes the jurisdiction of all the Courts except those of the Ghaziabad Courts. The clause reads as follows: "Any dispute will be settled at Ghaziabad and only Ghaziabad Courts will have jurisdiction over them." From a reading of the above clause it is evident that the parties agreed to refer the matters in dispute between them to the Ghaziabad Courts only. It cannot be disputed that the Ghaziabad Courts have the jurisdiction to entertain the complaints regarding the matter in dispute, as the disputed property is situated at Ghaziabad. If the clause is a part of the agreement between the parties, then in view of the observations of the Supreme Court in the above case, only the Courts at Ghaziabad had the jurisdiction to entertain the complaint.

THE contentions of the learned Counsel for the respondent is that the said clause does not find place in the brochure issued by the appellant nor in the agreement entered into between the parties and the respondent did not know that a clause excluding the jurisdiction of the other Courts had been given at the back of the receipts which do not bear his signatures and therefore, he is not bound by that clause. It is true that the clause does not find place in the brochure and the agreement between the parties, but by mutual consent the parties can amend the agreement and introduce such a clause. In the receipts dated 28.7.88 and 1.8.85 it is specifically mentioned that the appellant had agreed to sell the plot, on the terms and conditions given at the reverse. THE receipts bear the signatures of some persons on behalf of the purchaser. In view of the said circumstance, I am of the view that the terms and conditions at the back of the receipt will be read as a part of the agreement and the parties are bound by them. Thus the jurisdiction of the Fora under the C.P. Act at Delhi stands excluded.

FACED with this situation the respondent denied that the receipt was signed by any person on his behalf. No such point was raised by him before the District Forum. This is a disputed question of fact and it is not possible to decide such a question in the proceedings under the C.P. Act, which are summary in nature. In order to decide the said question a full dresstrial is provided by the Civil Courts, is necessary where the parties may have ample opportunity to examine and cross-examine witnesses and prove documents. It is relevant to mention that the receipts are not denied by the respondent. Therefore, prima facie, it cannot be held that the singatures purported to have been made on those on behalf of the purchaser, were made by an unauthorised person. For the aforesaid reasons, we are of the view that the District Forum had no jurisdiction to entertain the complaint. In view of the fact, that the Fora under the Consumer Protection Act had no jurisdiction to entertain the complaint, it is not necessary to go into the merits of the case.

For the reasons recorded above, we accept the appeals, set-aside the orders of the District Forum and direct that the complaints be returned to the complainants for presentation to the District Forum having jurisdiction to entertain the same. No order as to costs. Appeal allowed without costs.