State Consumer Disputes Redressal Commission
Sigma Motors vs Bhaginath Kachru Gande And Another on 20 August, 2015
1 F.A.No. : 117 to 155/2011
Date of filing:27.12.2010
Date of order:20.08.2015
MAHARASHTRA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MUMBAI, CIRCUIT BENCH AT AURANGABAD.
FIRST APPEAL NO.: 117 TO 155 OF 2011
IN COMPLAINT CASE NO. :193 TO 204, 298, 299 & 331 TO 355 OF 2009
DISTRICT FORUM : AURANGABAD.
Sigma Motors,
Through Mahesh Meghraj Jetwani,
R/o Chatrapati Society, 3rd Floor,
Kopri Colony,
Thane. ...APPELLANT
VERSUS
1. i) Bhaginath Kachru Gande,
Sahyadri Nagar, N-5, Cidco,
Aurangabad.
ii) Deleted. ...RESPONDENTS
(F.A.No.117 OF 2011)
2. i) Krushna Kautikarao Lokhande,
842, Sahyadri Nagar, N-5, Cidco, Aurangabad.
ii) Deleted. ...RESPONDENTS
(F.A.No.118 OF 2011)
3. i) Balasaheb Bhikan Borde,
842, Sahyadri Nagar, N-5, Cidco, Aurangabad.
ii) Deleted. ...RESPONDENTS
(F.A.No.119 OF 2011)
4. i) Balu Jagannath Gande,
842, Sahyadri Nagar, N-5, Cidco, Aurangabad.
ii) Deleted. ...RESPONDENTS
(F.A.No.120 OF 2011)
2 F.A.No. : 117 to 155/2011
5. i) Parmeshwar Tukaram Suryawanshi,
E-6/13,Sambhaji Nagar, N-6, Cidco, Aurangabad.
ii) Deleted. ...RESPONDENTS
(F.A.No.121 OF 2011)
6. i) Krushnatai Arun Ugale,
842, Sahyadri Nagar, N-5, Cidco, Aurangabad.
ii) Deleted. ...RESPONDENTS
(F.A.No.122 OF 2011)
7. i) Renuka Bhagwan Joshi,
H.No.14,Vishnu Nagar,
Aurangabad.
ii) Deleted. ...RESPONDENTS
(F.A.No.123 OF 2011)
8. i) Shameem Sultana,
Citizen Hotel, Roshan Gate,
Aurangabad.
ii) Deleted. ...RESPONDENTS
(F.A.No.124 OF 2011)
9. i) Ramkrushna Kachru Gande,
842, Sahyadri Nagar, N-5, Cidco, Aurangabad.
ii) Deleted. ...RESPONDENTS
(F.A.No.125 OF 2011)
10. i) Asha Ramkrushna Gande,
842, Sahyadri Nagar, N-5, Cidco, Aurangabad.
ii) Deleted. ...RESPONDENTS
(F.A.No.126 OF 2011)
11. i) Ahmed Nadimullah Khan,
Citizen Hotel, Roshan gate,
3 F.A.No. : 117 to 155/2011
Aurangabad.
ii) Deleted. ...RESPONDENTS
(F.A.No.127 OF 2011)
12. i) Sayaji Bhikan Shelke,
842, Sahyadri Nagar, N-5, Cidco, Aurangabad.
ii) Deleted. ...RESPONDENTS
(F.A.No.128 OF 2011)
13. i) Zhine Prabhakar Saluba,
F.No.7, Sunny Corner, New Mondha, Jadhav wadi Road, Aurangabad.
ii) Deleted. ...RESPONDENTS
(F.A.No.129 OF 2011)
14. i) Sanjay Lakshman Borse,
Angan Nagar, Maliwad, Near Telephone Exchange, Aurangabad.
ii) Deleted. ...RESPONDENTS
(F.A.No.130 OF 2011)
15. i) Vasant Mohanrao Kale,
Diwandeodi Road,
Aurangabad.
ii) Deleted. ...RESPONDENTS
(F.A.No.131 OF 2011)
16. i) Pundlik Dagdoba Pandit,
Plot No.177, Sarweshwar Nagar,
Satara Parisar,Deolai,
Aurangabad.
ii) Deleted. ...RESPONDENTS
(F.A.No.132 OF 2011)
17. i) Dilip Pannalal Dahale,
Plot No.113/A,, N-1, Cidco,
Aurangabad.
4 F.A.No. : 117 to 155/2011
ii) Deleted. ...RESPONDENTS
(F.A.No.133 OF 2011)
18. i) Murlidhar Vithoba Surashe,
Zalta, Chikalthana,
Aurangabad.
ii) Deleted. ...RESPONDENTS
(F.A.No.134 OF 2011)
19. i) Nirmala Sakhahari Ghule,
373, Avishkar Colony, N-6, Cidco, Aurangabad.
ii) Deleted. ...RESPONDENTS
(F.A.No.135 OF 2011)
20. i) Sakhahari Dagdoba Ghule,
373, Avishkar Colony, N-6, Cidco, Aurangabad.
ii) Deleted. ...RESPONDENTS
(F.A.No.136 OF 2011)
21. i) Sayaji Dashrath Kawde,
H.No.8, Jaibhawani Nagar,
Garkheda Parisar,
Aurangabad.
ii) Deleted. ...RESPONDENTS
(F.A.No.137 OF 2011)
22. i) Medha Ganpat Kalyankar,
Aishwarya Apartment, Ajab Nagar, Aurangabad.
ii) Deleted. ...RESPONDENTS
(F.A.No.138 OF 2011)
23. i) Suresh Ambadas Rajhans,
H.No.476, Avishkar Colony, N-6, Cidco, Aurangabad.
ii) Deleted. ...RESPONDENTS
(F.A.No.139 OF 2011)
5 F.A.No. : 117 to 155/2011
24. i) Pratibha Arun Kadam,
C-3, Sharda Apartment, 53,
Vidya Niketan Colony,
Aurangabad.
ii) Deleted. ...RESPONDENTS
(F.A.No.140 OF 2011)
25. i) Sakhahari Dagdoba Ghule,
373, Avishkar Colony, N-6, Cidco, Aurangabad.
ii) Deleted. ...RESPONDENTS
(F.A.No.141 OF 2011)
26. i) Sarangdhar Rangnath Kale,
MIG 88, N-2, Shraddha Colony,
Aurangabad.
ii) Deleted. ...RESPONDENTS
(F.A.No.142 OF 2011)
27. i) Shriram Hari Wokode,
G.No.105, Plot No.7, Beed By pass Road, Satara Parisar, Aurangabad.
ii) Deleted. ...RESPONDENTS
(F.A.No.143 OF 2011)
28. i) Balasaheb Changdeo Jeve,
Vishal Apartment,Jyoti Nagar,
Aurangabad.
ii) Deleted. ...RESPONDENTS
(F.A.No.144 OF 2011)
29. i) Mrudula Ganpat Kalyankar,
Aishwarya Apartment, Ajay Nagar, Aurangabad.
ii) Deleted. ...RESPONDENTS
(F.A.No.145 OF 2011)
6 F.A.No. : 117 to 155/2011
30. i) Balasaheb Changdeo Jeve,
Vishal Apartment, Jyotinagar,
Aurangabad.
ii) Deleted. ...RESPONDENTS
(F.A.No.146 OF 2011)
31. i) Prabhakar Bapurao Rawas,
Surana Complex, Bhaji Market,
Aurangabad.
ii) Deleted. ...RESPONDENTS
(F.A.No.147 OF 2011)
32. i) Bhanudas Eknath Nagare,
Plot No.54, Gajanan Colony,
Garkheda Parisar,
Aurangabad.
ii) Deleted. ...RESPONDENTS
(F.A.No.148 OF 2011)
33. i) Sakhahari Dagdoba Ghule,
H.No.373,Avishkar Colony, N-6, Cidco, Aurangabad.
ii) Deleted. ...RESPONDENTS
(F.A.No.149 OF 2011)
34. i) Prakash Kachru Bhujange,
H.No.244, Harsul,
Aurangabad.
ii) Deleted. ...RESPONDENTS
(F.A.No.150 OF 2011)
35. i) Suresh Ambadas Rajhans,
H.No.476,Avishkar Colony, N-6, Cidco, Aurangabad.
ii) Deleted. ...RESPONDENTS
(F.A.No.151 OF 2011)
36. i) Bansila Ramji Kasture,
H.No.37, Maruti Nagar, Harsul Area, 7 F.A.No. : 117 to 155/2011 Aurangabad.
ii) Deleted. ...RESPONDENTS
(F.A.No.152 OF 2011)
37. i) Jayshree Vivek Deshmukh,
Plot No.39,Nutun Colony,
Aurangabad.
ii) Deleted. ...RESPONDENTS
(F.A.No.153 OF 2011)
38. i) Mrs.Sangita Yeshwant Jangle,
Chaitanya Colony Housing Society, N-7, Aurangabad.
ii) Deleted. ...RESPONDENTS
(F.A.No.154 OF 2011)
39. i) Nanda Sayaji Kawade,
H.No.8, Jaibhawani Nagar,
Garkheda Parisar,
Aurangabad.
ii) Deleted. ...RESPONDENTS
(F.A.No.155 OF 2011)
Coram : Mr.S.M.Shembole, Hon`ble Presiding Judicial
Member.
Mr.K.B.Gawali, Hon`ble Member.
Present : Adv.Shri.U.N.Shete for appellant, Adv.Shri.S.N.Lavekar for respondent No.1.
O R A L JUDGMENT ( Delivered on 20th August 2015 ) Per Mr.S.M.Shembole, Hon`ble Presiding Judicial Member.
1. All these appeals are directed against the separate judgments and orders dated 31.8.2010 passed by District Consumer Forum Aurangabad allowing consumer complaint Nos.193 to 204, 298, 299 & 331 to 355/2009 directing appellant/opponent No.1 Mahesh Meghraj Jethwani who is proprietor of Sigma 8 F.A.No. : 117 to 155/2011 Motors to pay to the complainants amount invested by them within one month from the date of receipt of copy of judgment and order else interest @ 9% p.a. would be charged. Further to pay to the complainants/respondents amount of Rs.500/- each towards cost of the proceedings.
(For the sake of brevity appellant Sigma Motors through proprietor Mahesh Jethwani is hereinafter referred as opponent Sigma Motors and respondents No.1 as complainants and respondent No.2 who is already deleted as opponent No.2)
2. Since appellant and respondent No.2 are common and points which are to be decided in all these appeals are common, we have decided to decide all these appeals by this common judgment.
3. Brief facts giving rise to these appeals are that:-
On 10.3.2007 opponent Sigma Motors had floated a scheme wherein money was to be invested by prospective investors for a period of 2 & ½ years and thereafter receive a car in returns of the amount or to get the refund of amount and to receive monthly interest. Opponent Sigma Motors is having its head office at Thane and had opened its branch office at Aurangabad. Accordingly complainants entered into an agreement with the opponents and invested amount from time to time as shown in the chart given below.
Sr.No. Complaint Name of Amount of claim
No. complainants
1. C.C.No.193/09 Bhaginath K.Gande 1,68,611/-
2. C.C.No.194/09 Krishna 89,205/-
K.Lokhande
3. C.C.No.195/09 Babasaheb B.Borde 1,12,695/-
4. C.C.No.196/09 Balu Jagannath 1,17,695/-
9 F.A.No. : 117 to 155/2011
Gande
5. C.C.No.197/09 Parmeshwar 84,841/-
T.Suryawanshi
6. C.C.No.198/09 Krishnatai A.Ugle 1,06,391/-
7. C.C.No.199/09 Renuka B.Joshi 2,85,000/-
8. C.C.No.200/09 Shamim Sultana 1,57,611/-
9. C.C.No.201/09 Ramkrishna Gande 84,841/-
10. C.C.No.202/09 Asha Ramkrishna 84,841/-
Gande
11. C.C.No.203/09 Ahmed Nadimullah 1,57,611/-
Khan
12. C.C.No.204/09 Sayaji Shelke 1,06,391/-
13. C.C.No.298/09 Zine PRabhakar 1,78,611/-
Saluba
14. C.C.No.299/09 Sanjay Laxman 1,26,000/-
Borse
15. C.C.No.331/09 Vasant Mohanrao 2,95,000/-
Kale
16. C.C.No.332/09 Pundlik Dagduba 2,90,000/-
Pandit
17. C.C.No.333/09 Dilip Pannalal 1,57,695/-
Dahale
18. C.C.No.334/09 Murlidhar Vithoba 2,95,000/-
Surashe
19. C.C.No.335/09 Nirmala Sakhahari 1,17,695/-
Ghule C.C.No.336/09 Sakhahari 1,17,695/-
20. Dagaduba Ghule
21. C.C.No.337/09 Sayaji D.Kawade 2,37,400/-
22. C.C.No.338/09 Medha G.Kalyankar 2,23,548/-
23. C.C.No.339/09 Suresh Ambadas 1,22,695/-
Rajhans 10 F.A.No. : 117 to 155/2011
24. C.C.No.340/09 Pratibha Arun 2,55,000/-
Kadam
25. C.C.No.341/09 Sakhahari 1,47,695/-
Dagaduba Ghule
26. C.C.No.342/09 Sarangdhar 1,22,695/-
Rangnath Kamble
27. C.C.No.343/09 Shriram Hari 2,45,000/-
Wakode
28. C.C.No.344/09 Balasaheb 2,65,000/-
Changdev Jive
29. C.C.No.345/09 Mrudula Ganpat 3,57,500/-
Kalyankar
30. C.C.No.346/09 Basaheb Chagdev 2,85,000/-
Jive
31. C.C.No.347/09 Prabhakar Bapurao 2,95,000/-
Rawas 32 C.C.No.348/09 Bhanudas Eknath 2,80,000/- Nagare
33. C.C.No.349/09 Sakhahari Dagduba 1,07,695/-
Ghule
34. C.C.No.350/09 Prakash Kachru 2,95,000/-
Bhujange
35. C.C.No.351/09 Suresh Ambadas 1,22,695/-
Rajhans
36. C.C.No.352/09 Bansilal Ramji 2,85,000/-
Katre
37. C.C.No.353/09 Jayshri Vivek 4,70,000/-
Deshmukh
38. C.C.No.354/09 Sow.Sangeeta 1,22,695/-
Y.Jangle
39. C.C.No.355/09 Nanda Sayaji 2,81,400/-
Kawade 11 F.A.No. : 117 to 155/2011 Separate agreements into writing were executed by the complainants at Aurangabad and they invested amount at Aurangabad. Till the month of August 2007 opponents paid amount to the complainants. But thereafter despite repeated request of the complainants, opponent did not pay any amount. Therefore alleging deficiency in service on the part of opponent, complainants have filed separate complaints claiming refund of due amount and also compensation towards mental agony.
4. Opponent No.1 Sigma Motors resisted the complaints raising preliminary objection contending inter alia that District Consumer Forum Aurangabad has no territorial jurisdiction to entertain the complaints as the agreements did take place at Thane and office of opponent is situated at Thane only. It has denied that it had opened its office at Aurangabad district. It is further contended that the transaction are being commercial transaction. Complainants did not fall under definition of 'consumer' as defined under Consumer Protection Act 1986 and therefore consumer complaints are not maintainable. It is contended that complainants had deposited amount with intention to get more profit. It has denied all other adverse averments made by complainants and submitted to dismiss the complaints.
5. Complaints against opponent No.2 came to be proceeded exparte.
6. On hearing learned counsel for the complainants and opponent No.1 District Consumer Forum negativating the preliminary objection of the opponent Sigma Motors held that complainants are its consumer and consumer complaints are maintainable. It is further held that opponent Sigma Motors committed deficiency in service by avoiding to repay the amount invested by complainants with interest and also giving other benefits of the scheme. In keeping with this finding Dist.Consumer Forum allowed the complainant's claim.
12 F.A.No. : 117 to 155/20117. Feeling aggrieved by those judgments and orders, opponent No.1 Sigma Motors came to this Commission in filing separate appeals.
8. Counsel for appellant/opponent and respondents/complainants submitted written notes of arguments. However, Mr.Abhay Ostwal learned counsel for the appellant/opponent Sigma Motors though submitted written notes of argument through proxy Adv.Mr.K.D.Jadhavar remained absent. Therefore we heard Adv.Dharurkar appearing for the complainants finally and perused the written notes of arguments submitted by counsel for the appellant/opponent and respondents/complainants. We have also perused the copies of impugned judgments and orders, complaints, written version raising preliminary objection submitted by appellant/opponent Sigma Motors and other documents.
9. Almost all the facts except the maintainability of the consumer complaints and further the territorial jurisdiction of Aurangabad District Consumer Forum as disputed by opponent Sigma Motors by raising preliminary objection are not disputed. Therefore the crux in the matters is as to whether District Consumer Forum Aurangabad has territorial jurisdiction to entertain the complaints and whether transaction between the parties are commercial and consumer complaints are maintainable or not?
10. As far as objection raised by opponent about territorial jurisdiction of Aurangabad Forum is concerned, it is submitted by learned counsel appearing for the opponent/appellant in its written notes of argument that the parties had entered into an agreement in respect of deposits at Thane and therefore the complainants should have filed complaints at Thane only. But complaints are wrongly filed at Aurangabad alleging that branch office at Aurangabad was opened by appellant/opponent Sigma Motors. According to him no such office was opened at Aurangabad.
13 F.A.No. : 117 to 155/201111. Per contra, it is submitted by Mr.Dharurkar learned counsel appearing for the complainants in his written notes of argument that complainants had entered into an agreement at Aurangabad only as the opponent Sigma Motors had opened its branch office at Aurangabad and therefore as per the provision of Section 11 of Consumer Protection Act 1986, complainants have filed complaint at Aurangabad. He has also disclosed the name of person as Ramkrishna Gande who was carrying business of opponent Sigma Motors at Aurangabad. Not only this but according to Mr.Dharurkar learned counsel for the complainants submitted that complaints against Mr.Gande were lodged and police invested the matter and filed criminal cases against opponent. He has supported his contention by pointing out the investigation case papers. On perusal of copies of investigations case papers we find much force in the submission of Mr.Dharurkar learned counsel for the complainants. Because case papers clearly reflects that appellant/opponent Sigma Motors had opened its branch office at Cidco, N-5, Sahyadri Nagar, Aurangabad which falsify the contention of appellant/opponent Sigma Motors that no such branch office was opened at Aurangabad. Accordingly District Consumer Forum has rightly held. Considering all these facts we have no hesitation to uphold this finding of District Consumer Forum.
12. Moreover it is submitted by learned counsel for the opponent/appellant in his written notes of argument that as per agreement itself it was agreed between parties that dispute if any between the parties would be subject to jurisdiction of Thane Court and therefore Aurangabad District Consumer Forum has no jurisdiction to entertain the complaints. But we find no merit in these submissions. Firstly because no copy of agreement is produced on record. Secondly it is well settled law that parties cannot choose the jurisdiction of Forum or Court. Therefore even if it is presumed that it was mutually agreed so by the parties, cannot be considered.
14 F.A.No. : 117 to 155/201113. Apart from above fact, it is submitted by the counsel for appellant in his written notes of argument that District Consumer Forum Aurangabad itself by judgment dated 17.12.2011 had dismissed the complaint case Nos.515 to 517/08 & 574, 588/09 on same nature of transaction holding that complaints are being based on the lease deed, consumer complaints are not maintainable, the same District Consumer Forum giving contrary finding allowed the present complaints. True it is that as per judgment and order dated 17.12.2011 District Consumer Forum dismissed the complaint Nos. 515 to 517/08 & 574, 588/09 holding that consumer complaints are not maintainable. But merely because those judgments dated 17.12.2011 are not challenged same cannot be binding on the Forum when it was subsequently brought to the notice of Forum that agreements are wrongly shown as lease deeds. Therefore District Consumer Forum has rightly held that nomenclature of any document cannot decide the nature of transaction. Hence such contention raised by learned counsel appearing for the appellant/opponent is being not sustainable, cannot be accepted.
14. As far as second contention of opponent Sigma Motors that transactions are commercial transaction is concerned, it is submitted by learned counsel for appellant that since complainants have invested their amount for profit, transactions are being commercial transaction, consumer complaints are not maintainable and complainants are not consumer of opponent Sigma Motors and therefore complaints are not maintainable etc. He has also tried to support his contention by relying on the following decisions.
i) Pushpa Meena -Vs- Shah Enterprises(Rajasthan) Ltd. & others, I(1992) CPJ 271.
ii) M/s Lohia Starlinger Limited -Vs- M/s Zenith Computers Ltd. I(1991) CPJ 145 15 F.A.No. : 117 to 155/2011
15. We have gone through these citations and we find that these decisions are not applicable to the present case, because in all these cases transactions were commercial in nature. Therefore it is held by Hon'ble National Commission that consumer complaints are not maintainable.
16. In the present case considering the undisputedly fact it is obvious that complainants had invested the amount as deposits and not for any commercial purpose to gain profit. Even it is not the contention of opponent/appellant Sigma Motors that complainants are running any business and they had invested the amount to gain any profit from any business. On the contrary it is the specific contention of complainants that they hail from middle class families and they had invested the amount making deposits with the opponent by earning the same by doing their jobs etc. Accordingly District Consumer Forum has rightly held. We find no infirmity or error in the impugned judgments and orders. Hence no interference is warranted.
17. In the result, all the appeals are being devoid of any merit deserve to be dismissed. Hence the following order.
O R D E R
1. Appeal Nos.117 to 155/2011 stand dismissed.
2. No order as to cost.
3. Copies of the order be sent to both the parties.
Sd/- Sd/- K.B.Gawali S.M.Shembole, Member Presiding Judicial Member Mane