State Consumer Disputes Redressal Commission
Mirik Health Foods Pvt. Ltd. vs Sarik Memon on 29 November, 2011
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR
(A/10/1985)
Appeal No.475/2010
Instituted on 28.07.10
Mirik Health Foods Pvt. Ltd.,
Through: It's Authorized Representative,
Pawan Sharma, General Manager,
1110, 11th Floor, Suryakiran Building,
19, Kasturba Gandhi Marg,
NEW DELHI - 110 001. ... Appellant.
Vs.
Sarik Memon,
Proprietor, Memon Agency,
Raman Mandir, Fafadih,
RAIPUR (C.G.) ... Respondent.
PRESENT: -
HON'BLE JUSTICE SHRI S.C. VYAS, PRESIDENT
HON'BLE SHRI V.K. PATIL, MEMBER
COUNSEL FOR THE PARTIES: -
Shri Sanjay Tiwari, for appellant.
Shri R.K. Bhawnani, for respondent.
ORDER
Dated:29/11/2011 PER: - HON'BLE JUSTICE SHRI S. C. VYAS, PRESIDENT This appeal is directed against order dated 22.04.2010, passed by District Consumer Disputes Redressal Forum, Raipur (hereinafter called "District Forum" for short) in complaint case No.148/07, whereby the appellant herein has been directed to pay Rs.3,00,000/- along with interest @ 6% p.a., w.e.f. 09.04.07 to the complainant / respondent and also to pay Rs.5,000/- as compensation for mental agony and Rs.700/- as cost of litigation.
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2. Indisputably, the respondent Sarik Memon was appointed as C & F agent of Chhattisgarh area by the appellant and for that purpose an agreement was executed between the parties. Under that agreement an amount of Rs.3,00,000/- was deposited by the respondent with the appellant, as security deposit, for the purpose of appointment as C & F agent. The allegation of the complainant /respondent before District Forum was that even after receiving security deposit amount and even after getting TIN No. for Chhattisgarh area by the complainant / respondent, in the name of the appellant, the appellant had not started sending goods to him, as per agreement. The complainant /respondent was to get Rs.13,000/- per month from the appellant, but that amount was also not paid. When for a long period goods were not sent, as per agreement, then ultimately the respondent / complainant demanded refund of the deposited amount and conveyed his decision of cancellation of the agreement, but the appellant neither replied his letter nor refunded the amount and thus committed unfair trade practice, so he lodged police complaint before Superintendent of Police and also complaint before the District Forum, on the ground of this unfair trade practice and claimed refund of the amount as well as compensation.
3. In reply of the complaint, it has been averred by the appellant that the complainant was not a 'consumer' of the appellant and so the // 3 // District Forum was not having any jurisdiction to entertain the complaint. This objection was also raised that the District Forum was not having territorial jurisdiction, as no cause of action had arisen within the jurisdiction of the District Forum. It has also been averred that the agreement between the parties was a commercial contract and therefore also the complainant does not come in the category of 'consumer', as per definition under Consumer Protection Act, 1986. It has also been averred that the appellant had also filed a Civil Suit, No.173/07, against the complainant, before Civil Judge, Delhi, on account of breach of contract by the respondent / complainant and the present complaint has been filed subsequent to the said Suit by the complainant and so also it is not maintainable as a competent Court has already entertained a Civil Suit, for decision on the same question. On merits also, it has been averred that under the conditions of the contract, it was the complainant / respondent, who was guilty of not following the terms and not depositing the full amount as per agreement between the parties. With this averment it was prayed that the complaint be dismissed.
4. Earlier the District Forum vide order dated 30.01.08 agreed with the defence taken by the appellant / OP and dismissed the complaint at the preliminary stage. That order was challenged by the respondent / complainant before this Commission by way of filing appeal.
// 4 // Allowing that appeal, No.57/08, vide order dated 14.10.09, the case was remanded back to the District Forum with a direction that the preliminary objections raised by the appellant, regarding jurisdiction and regarding maintainability of the complaint, are mixed-questions of facts and law and therefore these questions are required to be decided by the District Forum on merits along with other questions involved in the matter and so the complaint was remanded back to the District Forum. Now by the impugned order, the District Forum has allowed the complaint.
5. We have heard arguments advanced by both parties and perused the record of the District Forum. We have also gone through the documents which have been filed before us by both parties.
6. Copy of the plaint of Civil Suit No.173/07, pending in the Court of Senior Civil Judge, Delhi, is also filed, which shows that the appellant herein had filed that Civil Suit on 23.03.07, against the respondent and his firm M/s. Memon Agency. Complaint before District Forum was filed on 19.04.07. Thus, it is clear that when the complaint was filed, on that date a Civil Suit was already pending before a competent Court, between the same parties. As per order sheet recorded in that Civil Suit, on presentation of Suit, on 23.03.05, it was registered on that date and was listed for proper orders on 30.03.2007. On that date order was issued for issuance of summons for // 5 // defence and then on 01.08.07, the respondent / complainant appeared through advocate and written statement was filed. Copy of the plaint, which is available in the record of the District Forum, shows that in that Civil Suit, it has been admitted by the appellant that Rs.3,00,000/- was deposited by the respondent / complainant with the appellant OP, as per terms of the contract. It has further been pleaded that Rs.2,00,000/- as per terms of the agreement were remained to be deposited, which has not been deposited. As per paragraph No.12 of the plaint of Civil Suit, total amount of Rs.5,86,140/-, was to be paid by the complainant / respondent and so he filed Suit for recovery of remaining amount of Rs.2,86,140/-, after adjusting the amount of Rs.3,00,000/-, which was deposited.
7. From this copy of the plaint, it is clear that the amount of Rs.3,00,000/- has been referred by the appellant in the plaint of Civil Suit pending in Delhi Court and then adjustment has been given and further amount has been claimed, in the Suit which was filed prior to filing 'consumer' complaint and in the present complaint, the complainant is demanding refund of the amount of Rs.3,00,000/- and is also demanding payment of Rs.13,000/- per month for four months, which was to be paid by the appellant to him. Thus, both parties are blaming each other for breach of contract and are claiming amount // 6 // from each other on account of such breach of contract and raising serious dispute regarding settlement of their accounts.
8. In similar circumstances, this Commission in the case of Prasant Nag Vs. Orient Ceramics and Industries Ltd., appeal No.29/2010 and its counter appeal No.54/2010, vide order dated 23.11.2010, in paragraph No.7, in last portion has held that "had there not been any dispute regarding settlement of account between the parties and had there been merely a case of refund of Security Deposit amount, then of course it would have been considered by the District Forum, but when the parties are contesting certain issues and even Criminal matters are pending between them upto stage of High Court, then at present, it can not be said that account between the parties were properly settled and some amount was due against the OP, which it had failed to pay it".
9. In paragraph No.9 of the same order it has been observed that "in view of the aforesaid, we find that District Forum has committed a mistake in allowing the complaint of the complainant. So long as dispute regarding settlement of account between the parties is pending, it can not be said that complainant is entitled of getting amount of Security Deposit back and therefore, the order passed by the District Forum, is not maintainable, so the same is hereby set aside". In that case also the complainant came with the case before District // 7 // Forum that he has deposited amount with the OP by way of security for the purpose of getting Dealership and an agreement was executed between them and then some dispute raised between the parties and the OP stopped sending ceramic tiles and his Dealership was also cancelled. So, he demanded back the security deposit and some more amounts from the OP.
10. Thus, it is clear that in similar circumstances, this Commission was clearly of the view that so long as the dispute regarding settlement of account between the parties is there, the amount of Security Deposit, made by the complainant, cannot be ordered to be refunded back in a 'consumer' complaint. In the facts of the present case also, as there is dispute of settlement of account between the parties and Civil Suit has already filed by the appellant against the respondent before a Competent Court, prior to filing of the complaint case, so the District Forum was not justified in allowing the complaint and in passing order against the appellant herein of refunding security amount and of paying compensation for mental agony.
11. So, the appeal succeeds and is allowed. The order passed by the District Forum is set aside and the complaint filed by the complainant / respondent is dismissed. No order as to cost.
(Justice S.C. Vyas) (V.K. Patil)
President Member
/11/2011 /11/2011