Urmila Devi Sharma vs Shiv Sai Infrastructure Pvt. Ltd.

A. P. Sahi, President Member

The Authorised Representative of the Applicant who is the husband of the Applicant has come up for the hearing of the Application for early hearing of the Transfer Application which was directed to come up after notice and an order was passed on 17.08.2023 to list it on 19.12.2023.

However, since the Applicant is present to press the Transfer Application, it has been heard on merits. A Reply has been filed by the Opposite Party to the Transfer Application contending that as a matter of fact the Applicant has incorrectly pleaded convenience and travel of distance as a reason for transfer. The Application discloses the past history of the litigation namely that a Complaint was filed before the District Consumer Disputes Redressal Forum that was allowed in favour of the Complainant on 11.07.2016. Against the said Order an Appeal was preferred by the Opposite Party being First Appeal No. 1022 of 2017, the Appeal came up on 08.02.2019 and the following Order was passed in the Appeal:

“1. As per order dated 01.02.2019 contained in letter No.321, I am conducting these proceedings singly.

In view of the statement made by leaned Counsel for the Respondent-Complainant, complaint bearing No. 134 of 2014 titled as ‘Urmila Devi Sharma Vs. Shiv Sai Infrastructure’, filed before learned District Forum, Faridabad is dismissed as withdrawn. Resultantly, Impugned Order dated 11.07.2016 stands set-aside and in view of the statement made by learned Counsel for the Appellant, present appeal is dismissed as withdrawn. However, respondent – complainant is granted liberty to file fresh complaint on the same very cause of action. However, in terms of judgment of the Hon’ble Supreme Court in Laxmi Engineering Works Versus PSG Industries Institute (1995) 3 SCC 583, complainant may seek benefit qua limitation.

Statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellant against proper receipt and identification in accordance with rules.”

The reading of the aforesaid Order indicates as if there was a lack of pecuniary jurisdiction before the District Forum as a result whereof the Complaint was withdrawn and the Appeal filed by the Opposite Party was also dismissed as withdrawn with the liberty to the Complainant to file a Complaint before the State Commission.

It is on the passing of the said order that the Complaint has been filed and which is pending consideration before the State Consumer Disputes Redressal Commission, Haryana, Panchkula.

The Authorised Representative argues that keeping in view the age of the Complainant / Applicant and also the convenience the said Complaint should be transferred from State Consumer Disputes Redressal Commission, Haryana, Panchkula to State Consumer Disputes Redressal Commission, Delhi.

This Application is based on a plea of mere convenience and not because of any malafides or lack of Coram in the State Consumer Disputes Redressal Commission at Panchkula. Such a ground if permitted will obviously be a ground available to any such litigant who may claim transfer on the basis of convenience.

A brief reference to the settled legal principles on this issue is necessary. The power conferred for transfer under the Consumer Protection Act, 1986, which would be applicable in the present controversy as the claim was under the said Act, is in Section 22 (B) extracted here as under:-

“On the Application of the Complainant or of its own motion, the National Commission may, at any stage of the proceeding, in the interest of justice, transfer any complaint pending before the District Forum of one State to a District Forum of another State or before one State Commission to another State Commission.”

The same is the position under the new Consumer Protection Act, 2019 as contained in Section 62 extracted here as under:-

“On the Application of the Complainant or of its own motion, the National Commission may, at any stage of the proceeding, in the interest of justice, transfer any complaint pending before the District Commission of one State to a District Commission of another State or before one State Commission to another State Commission.”

The transfer of a Civil Suit on the ground of Forum non-convenience under Section 25 of the Civil Procedure Code 1908 read with the Supreme Court Rules, 1966 Order 36 – B came up for consideration in Subramaniam Swamy vs. Ramakrishna Hegde 1990 (1) SCC 4 where former Chief Justice of India A. M. Ahmadi observed as under:-

“8…….The cardinal principle for the exercise of power under this section is that the ends of justice demand the transfer of the suit, appeal or other proceeding. The question of expediency would depend on the facts and circumstances of each case but the paramount consideration for the exercise of power must be to meet the ends of jus- tice. It is true that if more than one court has jurisdiction under the Code to try the suit, the plaintiff as dominus litis has a right to choose the Court and the defendant cannot demand that the suit be tried in any particular court convenient to him. The mere convenience of the parties or any one of them may not be enough for the exercise of power but it must also be shown that trial in the chosen forum will result in denial of justice. Cases are not unknown where a party seeking justice chooses a forum most inconvenient to the adversary with a view to depriving that party of a fair trial. The Parliament has, therefore, invested this Court with the discretion to transfer the case from one Court to another if that is considered expedient to meet the ends of justice. Words of wide amplitude for the ends of justice have been advisedly used to leave the matter to the discretion of the apex court as it is not possible to conceive of all situations requiring or justifying the exercise of power. But the paramount consideration must be to see that justice according to law is done; if for achieving that objective the transfer of the case is imperative, there should be no hesitation to transfer the case even if it is likely to cause some inconvenience to the plaintiff. The petitioner's plea for the transfer of the case must be tested on this touch-stone.”

Statutes conferring similar powers on adjudicating forums have been subject of appreciation in a large number of decisions including decisions of the Apex Court. One of the celebrated passages on the exercise of such powers under Section 406 of Code of Criminal Procedure from the case of Maneka Sanjay Gandhi versus Ravi Jethmalani, reported in 1979 (4) SCC 167 authored by the legendary Late Justice V. R. Krishna Iyer, the Paragraph No.- 2 is extracted here as under:-

“2. Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini-grievances. Something more substantial, more compelling, more imperiling, from the point of view of public justice and its attendant environment, is necessitous if the Court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. We have to test the petitioner's grounds on this touch-stone bearing in mind the rule that normally the complainant has the right to choose any court having jurisdiction and the accused cannot dictate where the case against him should be tried. Even so, the process of justice should not harass the parties and from that angle the court may weigh the circumstances.”

The court further delved into others issues like turbulent conditions, congenial atmosphere, compromise of the operational freedom of the court, factors vitiating neutrality and public confidence to be taken into account while dealing with a prayer for transfer of a trial. The dictum further advised a cautioned approach without excitement, exaggeration or eclipse of a sense of proportion to courts before applying transfer surgery.

The above ratio was again reiterated in Rajesh Talwar versus Central Bureau of Investigation, reported in 2012 (4) SCC 217 Paragraph No. 44 extracted hereinunder:-

“44. From the two judgments, referred to hereinabove, it clearly emerges that inconvenience cannot be a valid basis for transfer of “criminal proceedings” from one court to another under Section 406 of the Code of Criminal Procedure. Be that as it may, we are of the view that the instant contention advanced at the hands of the learned Counsel for the petitioner is wholly frivolous.”

Their Lordships relied on Bhiaru Ram and Ors. versus Central Bureau of Investigation and Ors. reported in 2010 (7) SCC 799 and also mentioned Paragraph 5 of the reported decision in the case of Jyoti Mishra versus Dhananjaya Mishra reported in 2010 (8) SCC 803 extracted here as under:-

“5. It is true that in cases of dissolution of marriage, restitution of conjugal rights or maintenance, this Court shows much indulgence to the wife and ordinarily transfers the case to a place where it would be more convenient for the wife to prosecute the proceedings. But a criminal case is on a somewhat different footing. The accused may not be able to attend the court proceedings at Indore for many reasons, one of which may be financial constraints, but the consequences of non-appearance of the accused before the Indore Court would be quiet drastic.”

The above guiding principles with the discretion and indulgence that can be exercised under Section 22(B) of the Consumer Protection Act, 1986, this Application which has been pressed during submissions only on convenience cannot be accepted on the facts disclosed.

The instant Transfer Application does not qualify on any of the above parameters to exercise the power of transfer on the facts as disclosed and discussed herein above.

Accordingly on ground that has been taken for transfer, it is not appropriate or expedient to transfer the case to Delhi State Commission nor so keeping in view the objections which have been raised by the Opposite Party in their Reply which is on record. Accordingly, the Application filed for early hearing stands disposed of and the Transfer Application is consigned.