IRSHAD HUSSAIN,PRESIDENT - (1.) DEALER , who had sold a Tata Spacio vehicle to the complainant Sh. Bhuwan Chandra Joshi and which was registered and plied as a taxi filed this appeal against the order dated 13.04.2005 passed by the District Forum, Bageshwar in Consumer Complaint No. 06 of 2004; Sh. Bhuwan Chandra Joshi Vs. Mega Motors and others, whereby the said dealer was directed to pay sum of Rs. 43,000/ -, amount of excise duty, which was refundable, to the complainant in view of the exemption granted on the vehicle being registered and plied as taxi and Rs. 2,000/ - as litigation expenses, total being Rs. 45,000/ - within the stipulated period, failing which the amount was to carry interest @ 8% p.a. The said dealer was given a liberty to recover the said amount either from O.P. No. 2 or O.P. No. 3, as the case may be.
(2.) THE legality of the order of the District Forum being impugned in this appeal, has been challenged on the grounds inter -alia that the appellant was not liable for refund of the excise duty under the relevant exemption notification of the Government; that the application made in that regard by the complainant had been sent to the manufacturer - O.P. No. 3, who was obliged to prosecute the matter according to the procedure prescribed for refund of excise duty; that the District Forum, Bageshwar had no territorial jurisdiction to entertain and decide the complaint preferred before it by the complainant as neither the appellent, nor the respondent Nos. 2 or 3 actually and voluntarily resides or carries on business or has a branch office or personally works for gain within the jurisdiction of the District Forum, Bageshwar, nor the cause of action wholly or in part, arise within the jurisdiction of the said Forum and that the District Forum has made an illegality in not considering the legal plea and went on to decide the consumer complaint erroneously against the appellant.
(3.) WE have heard the learned counsel for the appellant and the respondent Nos. 1 and 2, none appeared on behalf of the respondent No. 3 and have carefully considered their submissions in the light of the legal aspects of the matter in issue. It cannot be disputed that the plea as regards lack of jurisdiction goes to the root of the matter in controversy before the District Forum and when a specific plea in regard to the lack of territorial jurisdiction had been taken by the appellnat, the District Forum was legally obliged to take up that issue and pass an appropriate order on it. Perusal of the impugned order dated 13.04.2005 reveal that the District Forum has not cared to decide the dispute as to the territorial jurisdiction raised at the earliest opportunity by the appellant. This is the reason that the plea has been pressed and reiterated in this appeal also and rightly so because when the law provide that the consumer dispute need to be entertained and decided by a Forum which has pecuniary as well as territorial jurisdiction in the matter, the spirit behind the legislative intent should not be diluted, rather it should be made to prevail so that the aggrieved parties could repose confidence in the legal machinery of the redressal forum and which in turn make endeavour to maintain the practical efficacy of the remedial system. Learned counsel for the appellant, therefore, rightly urged that when the plea as regards the lack of territorial jurisdiction of the District Forum has not been waived, the same need to be taken note of and considered on merit. The appellate stage itself so that justice may also seems to have been done in the case. We, therefore, proceed to take up the plea in that regard at the outset. Section 11(2) of the Consumer Protection Act, 1986 provide that a complaint shall be instituted in a District Forum within the local limits of whose jurisdiction : - (a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or [carries on business or has a branch office or] personally works for gain, or (b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or [carries on business or has a branch office], or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or [carry on business or have a branch office], or personally work for gain, as the case may be, acquiesce in such institution; or (c) the cause of action, wholly or in part, arises.;