Decided on December 29,2008

Sfiivo Devi Appellant
Vaid Autos Respondents


- (1.) THROUGH the medium of this appeal, order dated 20.2.2003 passed by the Divisional Consumer Protection Forum, Jammu, (herein after referred to as the Forum), has been challenged. The appellants through their Attorney, namely, Jagir Singh, have filed the complaint inter alia alleging therein that they purchased one tractor (as fully described in the complaint) from respondent No. 1 for a consideration of Rs. 2,84,000 under hypothecation agreement with respondent No.3. After taking delivery of the said tractor and while fulfilling the requisite formalities in the office of R.T.O. for the purpose of its registration, it was noticed that the engine No. and chassis No. mentioned in the documents of delivery were totally different from those inscribed in the engine and chassis. Requests made by the appellants to remove the defects or replacement of the tractor went haywire. When the tractor was taken to the showroom of respondent No.1, its plates were removed to deface the evidence of engine number and chassis number including the service card. Respondent No. 1, deputed their Foreman, namely, Tirath Ram to effect the repairs who declared that the tractor delivered by respondent No. 1 was different from the one which was the subject matter of the dispute. He had also found the defects in its two important machinery parts, namely, lift and diesel pump. Besides that, there were also defects in clutch plates. Monetary loss suffered by the appellants have been spelt out in the complaint. Respondent Nos. 1 and 2 in their written version had denied the allegations and taken the plea that the Forum had no jurisdiction to try the complaint. In order to over -reach the objection of jurisdiction; the Counsel for the appellants had contended before the Forum that since the tractor in question had been hypothecated with respondent No. 3 within the territorial jurisdiction of the Forum so it had the jurisdiction to try the complaint. The Forum after hearing the arguments has held in para No. 5 of the impugned order: "We do not subscribe our reconciliation to the submission made at BAR by Shri Vijay Kumar Gupta inasmuch as no cause of action has been pleaded in the complaint to have arisen against OP 3 so that the jurisdiction of this DF is not ousted. Simply because tractor has been hypothecated to OP 3, which is working within the territorial jurisdiction of this DF, or advanced loan for purchase of said tractor in favour of the complainants, is not by itself sufficient to show that part of cause of action accrued to the complainants within the territorial jurisdiction of this Divisional Forum. The OPs 1 and 2 are working for gain and have no branch office within the territorial jurisdiction of this DF and no part of cause of action can be said to have accrued to the complainants against OPs 1 and 2, therefore, the complaint is not maintainable before this Divisional Forum. The complaint is also not maintainable as there is no cause of action nor any relief sought for the complainants against OP 3. We, accordingly, hold that the plea raised by the learned Counsel for the OPs 1 and 2 is well founded."
(2.) IT has also been held that the complaint had been filed by the attorney holder of the complainants who is not recognized as a consumer within the definition of a " consumer" as defined under the J&K Consumer Protection Act. On the above stated two preliminary pleas, the complaint of the complainants was dismissed. Hence, this appeal.
(3.) HEARD the arguments. Counsel appearing for the appellants is unable to cross the preliminary hurdles which became sheet -anchor for the Forum to dismiss the appeal without touching the factual matrix of the case. We also subscribe to the view that because of mere hypothecation of the tractor in question in the branch office of Jammu Rural Bank, Sarore,Tehsil Bishnah, no cause of action could arise within the territorial jurisdiction of the Forum. We have noticed with disgust and astonishment how some person has tendered wrong legal opinion to these illiterate village rustic women to file the complaint in an incompetent Forum. The Counsel who had represented in the Forum was lacking professional ethics for not properly guiding them. The Consumer Protection Act has been enacted for the welfare and well -being of the genuine consumers with a dominating intent and object to curb unfair trade practice but the course which had been adopted in these proceedings has perpetuated injustice to the consumers. The allegations made in the complaint are of very serious nature and in case proved, respondents herein could be held liable for breach of consumer law as well as could also face criminal prosecution. Unfortunately, this aspect of the case could not be looked into because of wrong filing of the complaint within the State of J&K where the appellants had no cause of action arisen in their favour. The dismissal of complaint on technical grounds cannot absolve the liability of the service providers (respondent Nos. 1 and 2) on the basis of equitable relief which is always granted under the Act. Where substantial justice and technicalities are pitted against each other, the former prevails over the latter. We can only advise and not direct respondents 1 and 2 to address to the genuine grievances of the appellants herein and in case they are found truthful they should redress them immediately. Otherwise also the appellants are at liberty to approach a competent Forum created under the Act in case law permits them to do so. Cheating and fraud are anti -thesis to the rule of law and doors of the Courts are always open to suppress them.;

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