National Consumer Disputes Redressal
Prashant Nag vs Orient Ceramics & Industries Ltd. on 5 September, 2011
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI Revision Petition No. 216 of 2011 (From the order dated 23.11.2010 in Appeal no. 29 of 2010 of Chhattisgarh State Consumer Disputes Redressal Commission, Raipur) Prashant Nag Properitor : M/s Ceramic Point 1st Floor, Jawahar Nagar Chowk Raipur, District Raipur (C.G.) ........ Petitioner (s) vs Orient Ceramics and Industries Ltd. 16th Iris House, Nangalarya New Delhi 110 046 ........ Respondent (s) BEFORE: HONBLE MR. ANUPAM DASGUPTA, PRESIDING MEMBER For the Petitioner Mr. R. K. Bhawnani, Advocate Pronounced on 5th September 2011 ORDER
ANUPAM DASGUPTA This revision petition is directed against the order dated 23.11.2010 of the Chhattisgarh State Consumer Disputes Redressal Commission, Raipur (in short, the State Commission) in appeals no. 29 and 54 of 2010 filed by the present petitioner and the respondent respectively. By this order, the State Commission held that the appellant/complainant had not been able to establish that he was a consumer of any service rendered by the respondent/opposite party (OP) and hence, dismissed the appeal of the petitioner and also set aside the order dated 17.12.2009 of the District Consumer Disputes Redressal Forum, Raipur (in short, the District Forum).
2. The District Forum had allowed the complaint of the petitioner/ complainant and directed the respondent to refund to the petitioner/complainant the security deposit of Rs.2 lakh and balance amount of Rs.1,12,030/- and also pay him Rs.700/- by way of cost.
3. I have heard Mr. R. K. Bhawnani, learned counsel for the petitioner. The main point urged by Mr. Bhawnani is that the seller (respondent/OP) had arbitrarily terminated the dealership of the buyer (petitioner/complainant) also also withheld the latters security deposit. By not refunding these amounts due to the petitioner/ complainant, the respondent/OP had committed an unfair trade practice as defined in section 2 (1) (r) of the Consumer Protection Act, 1986 (in short, the Act).
4. The case of the petitioner/complainant before the District Forum was that he was engaged in the business of selling ceramic tiles through his outfit titled M/s Ceramic Point and that this was his only means of livelihood and he did not have any other business. A dealership agreement was executed between the petitioner/complainant and the respondent/OP and petitioner deposited Rs.2 lakh by way of security with the respondent/OP for this dealership. The petitioner/ complainant alleged that the respondent/OP suddenly stopped sending the ceramic tiles to him and did not pay the amount that the respondent/OP owed towards the sale of tiles. The respondent/ OP sent him a legal notice making certain allegation and also terminated the petitioners dealership illegally. The petitioner/complainant replied to the notice stating that he had not committed any irregularity in the dealership and that the respondent/OP should refund the security deposit of Rs.2 lakh and the amount owed to him by the respondent/ OP on account of sale of ceramic tiles. When this was not conceded by the respondent/OP, the petitioner/complainant filed the above-mentioned complaint.
5. Discussing the nature of dispute between the petitioner and the respondent, the State Commission observed as under:
from all these documents, it appears that the dispute between the parties, was in fact regarding settlement of account. The complainant was claiming that he was to recover amount of security deposit, as well as incentives on the turn over and some other amount. Whereas OP was claiming that in fact OP was to recover amount from the complainant and if the amount is paid by him, then the amount of security deposit, may be refunded. Thus, it is clear that the dispute between the parties is basically that of settlement of account. Such dispute, does not come in the category of consumer dispute. Had there not been any dispute regarding settlement of account between the parties and had there been merely a cess 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 cannot 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.
It is also doubtful as to whether complainant comes in the category of consumer or not. It is merely his assertion that he is doing business in the name of M/s Ceramic Point for the purpose of earning his livelihood. It has been disputed by the OP by saying that complainant is doing business in the name of different concerns for the purpose of earning more profit. Affidavit of Shri Sanjay Jha, Manager of the OP has been filed in support of the reply. Whereas the complainant has filed his own two affidavits. Thus, it appears to be a case of oath against oath. No other evidence has been filed to show that M/s Ceramic Point is the only source of earning livelihood for the complainant and his family and therefore, it remains doubtful as to whether complainant is consumer or not, because basically the agreement executed between the parties and the dealing between the parties shows that it was all commercial transaction and was for resale, and for taking this case out of the purview of commercial transaction by showing that it was only for the purpose of earning livelihood of the complainant by self employment, some more evidence was required, which is lacking.
6. Learned counsel for the petitioner is not able to cite any evidence/ document to contradict the reasoning and conclusion of the State Commission, as reproduced above. He has, however, sought to rely on the following decisions of this Commission:
(i) Kurji Holi Family Hospital vs Boehringer Mannheim India Ltd and Ors III (2007) CPJ 371 (NC)
(ii) View Tech Imaging Equipment Pvt. Ltd. & Anr. Vs CMC Ltd., and Anr. 2008 NCJ 757 (NC)
(iii) Corporation Bank vs Masood Ahmed Khan and Ors 2008 NCJ 763 (NC)
(iv) Bhanwar Kanwar vs R. K. Gupta and Anr. (Dr) 2009 NCJ 675 (NC)
(v) Sanjay Kumar vs Vijay Kumar Yadav 2008 (1) CPR 421 (NC)
7. Even a quick perusal of these judgments of this Commission show that in none of the cases referred to above are the facts and circumstances or the legal issues involved similar to those in this case. Here the dispute relates to observance or otherwise clauses of the dealership agreement between the petitioner/complainant and the respondent/OP in respect of the goods sold through his agency by the respondent/OP. This is a purely commercial contract between a principal and its agent and observance of the terms of such an agreement would not amount to rendering service as defined under section 2 (1) (o) of the Act. Moreover, the State Commission has rightly observed that on the basis of the evidence brought on record, the petitioner/ complainant was not able to establish that the dispute on which the complaint was founded though or relate to a commercial purpose, would not disqualify the petitioner and still be as a consumer under the Act because of his claim of earning livelihood through self employment.
8. In view of the foregoing, I do not find any jurisdictional error, material irregularity or legal infirmity in the impugned order of the State Commission to warrant intervention under section 21 (b) of the Act. The revision petition is accordingly dismissed.
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[ Anupam Dasgupta ] Presiding Member Satish