ARUP KUMAR BHATTACHARYA Vs. KUNDU TIRTHA SPECIAL

JUDGEMENT

(1.) THIS revision is directed against the majority judgment dated 31.5.2002 of State Consumer Disputes Redressal Commission West Bengal, Calcutta allowing revision against the order dated 28.8.1998 of a District Forum whereby Forum held that it did not lack territorial jurisdiction to decide the complaint. 1. Petitioner filed complaint alleging that respondent No. 1/opposite party No. 1 which is a proprietorship concern of respondent No. 2/opposite party No. 2, organises tour on payment of charges. In the last part of July 1997, petitioner came across advertisement in 'Bartaman' that respondents were organizing South India tour commencing from 8.10.1997. Petitioner from Purulia contacted on telephone the office of respondent No. 1 and he was given details of tour and advised to send advance of Rs. 4,000/- in case of his willingness. Petitioner deputed Suberthi Sankar to the office of respondent No. 1 where he deposited Rs. 4,000/- as advance.

(2.) FOR balance amount of Rs. 18,295/-, a Bank Draft was purchased by the petitioner from State Bank of India, Purulia and same was delivered in the office of respondent No. 2 at Calcutta on 16.9.1997 through Arup Bhattacharya. Petitioner along with family commenced journey from Howrah on 8.10.1997. Alleging gross mis-management, deficiency in accommodation and conveyance, etc., the petitioner filed complaint against the respondents before District Forum, Purulia seeking award of compensation of total sum of Rs. 1,00,000/-. In the written version, one of the objections raised by respondents was that District Forum at Purulia did not have territorial jurisdiction to try complaint. That objection was negated by the District Forum by the order dated 28.8.1998. In revision against District Forum's order by the respondents, two orders were passed on 31.5.2002 - one by the President and another by two members of State Commission. President opined that as part of cause of action accrued within the jurisdiction of Purulia, District Forum Purulia had the jurisdiction to decide the complaint. However, two members opined otherwise. After referring to the submission advanced on behalf of petitioner/complainant, the order dated 22.11.2002 notices that Commission would like to hear argument as to where, based on telephonic conversation, the contract was entered into and petitioner was asked to bring on record the copies of pleadings and all other documents which were before the District forum. However, on 23.10.2003, argument was heard on merits of the case.

(3.) SUBMISSION advanced on behalf of petitioner was that issuance of draft by Purulia branch of State Bank of India; circulation of 'Bartaman' newspaper wherein advertisement given by respondents was published, at Purulia; telephonic conversation by the petitioner, from Purulia with the respondents at Calcutta form part of cause of action and the Forum at Purulia had the territorial jurisdiction to decide the complaint. In the decision in M/s. Bhagwandas Goverdhan Das Kedia v. M/s. Bhagwandas Purushottam Das and Co., and Ors. 1996 (1) SCR 656, it was held by the Supreme Court that in a contract by telephone, it is the place from where communication of acceptance is conveyed will have the jurisdiction to try suit for damages based on breach of contract. Allegations made in Para 5 of the complaint would show that respondent No. 1 on being contacted on telephone by the petitioner from Purulia, gave details for the tour and asked for advance of Rs. 4,000/- in case the petitioner was willing to undertake the tour. Only the allegations made in complaint are to be seen for determining the issue of territorial jurisdiction. Obviously, allegations made in said para fall short of conveying acceptance of tour programme on telephone by the petitioner from Purulia. Thus, based on said telephonic conversation, Forum at Purulia did not have territorial jurisdiction.