State Consumer Disputes Redressal Commission
Vikas Raj Singh vs Sunil Kumar Jain on 27 May, 2024
FA/700/2013 MR. VIKAS RAJ SINGH VS. MR. SUNIL KUMAR JAIN D.O.D.: 27.05.2024
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
Date of Institution: 14.06.2013
Date of Hearing: 06.11.2023
Date of Decision: 27.05.2024
FIRST APPEAL NO.- 700/2013
IN THE MATTER OF
MR. VIKAS RAJ SINGH,
S/O SH. D. V. SINGH,
R/O OC-11, FLAT NO. 602,
ORANGE COUNTRY,
INDRAPURAM, GHAZIABAD, U.P.
(Through: Mr. Vivek Sharma &
Mr. Satish Joshi, Advocates)
...Appellant
VERSUS
MR. SUNIL KUMAR JAIN,
R/O D-127, EAST OF KAILASH,
NEW Delhi-110065.
(Through: Ms. Reeta Chaudhary, Advocate)
...Respondent
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FA/700/2013 MR. VIKAS RAJ SINGH VS. MR. SUNIL KUMAR JAIN D.O.D.: 27.05.2024
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
HON'BLE MR. J. P. AGRAWAL, MEMBER (GENERAL)
Present: Mr. Vivek Sharma, counsel for the Appellant.
Ms. Reeta Chaudhary, counsel for the Respondent.
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL,
PRESIDENT
JUDGMENT
1. The Appellant has preferred the present Appeal under Section 15 of the Consumer Protection Act, 1986 to set aside the impugned order dated 07.07.2023 passed by the District Consumer Disputes Redressal Commission (East), Saini Enclave, Delhi - 110092 in Complaint Case no. 219 of 2013 filed by Respondent/ Complainant against the Appellant/ Opposite Party No. 3. Vide impugned order dated 10.06.2013, the District Commission has directed as follows:
"The OP in this case by way of filing two separate applications have challenged the jurisdiction of this forum. Firstly, on the basis of lack of territorial jurisdiction. Secondly, on the ground that it is not covered by the definition of consumer as define under Sec.2(d) of CPA.
We have considered the plea raised by the OP. Firstly with regard to lack of territorial jurisdiction as well as non- availability of provisions of CPA on the facts as stated in the complaint. In so far as the territorial jurisdiction is concerned, the main contention raised before us by the respondent is that the complainant is a practicing advocate of Supreme Court neither resides within the jurisdiction of this forum nor any part of cause of action has arisen within the territorial jurisdiction of this forum and the defendant also not have any office within the area of East Delhi. To appreciate the ALLOWED PAGE 2 OF 13 FA/700/2013 MR. VIKAS RAJ SINGH VS. MR. SUNIL KUMAR JAIN D.O.D.: 27.05.2024 respective contention, it is necessary to go through the contents of the complaint wherein the complainant has alleged that the wife of OP No.3 was working as intern with the complainant and the OP3 used to visit his office. Both allured him to invest some money into the company of the OP for the purposes of earning substantial profit. The money was paid in Delhi and office of the OP is located in Delhi, as such this forum has the jurisdiction to entertain the present complaint.
The Ld. Counsel for the complainant submitted that Union Territory of Delhi has been held to be one unit and the demarcation of the area according to the police station is only for the sake of convenience of the parties to approach a Distt. Forum and does not bar the other Distt. Forum to entertain any such complaint if the OP resides within the territory of Delhi. The decision of the Hon'ble State Commission in FA- 220/10 in the matter of Holy Family Hospital v/s Sh. Amit Kumar decided on 17.03.10 still hold good and it has not been over-ruled by the National Commission. Since this fact has not been disputed or denied by the OP that the transaction in question took place within the territory of NCT of Delhi, this cannot be said that this complaint has been entertained without having any jurisdiction.
The fact of first appeal No.17/11 in the matter of Sh. Satish Dhingra v/s Manager HDFC Standard Life insurance Co. decided by the Hon'ble State Commission on 12.05.2011 are entirely different. This order does not over rules the judgement of the Holy Family Hospital. The matter regarding the jurisdiction is sub-judice before the Hon'ble National Commission. The judgement of Holy Family Hospital supra has not been stayed or over-ruled. Till it hold good. The complainant may file his complaint before any Forum at Delhi.
The second question is with regard to the applicability of the provisions of CPA over the facts and circumstances of this case as the transaction does not fall within the ambit of provisions of sec.2(d) of CPA. It is contended by the OP that the investment made by the complainant was purely for the ALLOWED PAGE 3 OF 13 FA/700/2013 MR. VIKAS RAJ SINGH VS. MR. SUNIL KUMAR JAIN D.O.D.: 27.05.2024 commercial purposes, as such it shall be out of the purview of the CPA. As per the complaint, complainant invested a sum of Rs.4 lacs with the OP for earning some profit through the company of the OP who was supposed to provide the services to the complainant by investing this money into the market and thereby earning profit thereon which is to be paid to the complainant after retaining the charges for the services rendered.
The complainant of this case in their objection have taken the plea that single investment cannot be termed as a commercial activity. Secondly, there is no bar under the Act if any individual invest some money in the market for augmenting his income for livelihood. The OP of this case have taken up the plea that the complainant is a senior counsel of the Supreme Court having office at Sagar Apartments, a known address in Delhi, In such circumstances, it cannot be accepted that the plea of augmentation of income by investing the money in the market will have any relevance on the fact and circumstances of this case. It is argued on behalf of the complainant if the argument of the OP is to be accepted in that case there will be no incentive for any individual to achieve the height of economic excellence. The Birla's, Tata's and Ambani's having sufficient resources at their end will never think of putting new business venture for the purposes of augmentation of the income. In that case, there will be no growth of economy and the Nation. Everybody has a right to utilize his potential and the money and other resources at his disposal to get the maximum return so that he can improve his economic condition and status in the society. A single investment in any business cannot be termed as commercial activity for attracting the clause of commercial activity. It has to be a chain of transaction in a particular trade which is not the fact in the case in hand.
In such circumstances, it shall be deemed to be an investment for the purpose of earning profit for the purposes of augmentation of income.
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We are not inclined to accept the contention of the OP that a person of status like Sh. Sunil Jain has no right to open other sources of income so as to raise his standard of living. The phrase livelihood is not confined to the bread and butter, but it also include the other amenities which a person requires for a good living.
In view of the above, we do not find any force in the applications of the OP. Both are dismissed.
The OP may now file their evidence by 01.07.2013."
2. Aggrieved by the aforesaid order of the District Commission, the Appellant/Opposite Party no. 3 has preferred the present Appeal contending that the District Commission has erred in dismissing both applications filed by the Appellant before District Commission. The counsel for the Appellant further contended that the compliant of the Respondent filed before District Commission (East) does not fall within the jurisdiction of District Commission (East) as neither the Respondent/ Complainant nor the Appellant/ Opposite Parties actually and voluntarily resides or carries on business or has a branch office or personally works for gain under the jurisdiction of District Commission (East). Furthermore, the counsel for the Appellant contended that the Respondent herein does not fall within the definition of consumer as per Section 2(1)(d) of Consumer Protection Act, 1986. Pressing the aforesaid grounds, the Appellant prayed to set aside the order dated 10.06.2013 passed by the District Commission (East).
3. The Respondent, on the other hand, filed reply to the present appeal wherein, he denied all the allegations of the Appellant and submitted that there is no error in the impugned order. However, the counsel has objected the interim order passed by this Commission vide order dated 14.06.2013, whereby the stay of the proceedings before the District Commission has been granted by the bench consisting of a single member.
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4. We have perused the material available on record and heard the counsels appeared on behalf of the contesting parties.
5. Perusal of record reflects that the objection raised by the Respondent in the reply to the present Appeal has been dealt by the Hon'ble National Commission in Revision Petition no. 3261 of 2013 filed on behalf of the Respondent and had answered in negative to the objection raised by the Respondent.
6. The first question for consideration before us is whether the Complaint case no. 219 of 2013 is within the territorial jurisdiction of District Commission (East).
7. To comment on this issue, we primarily deem it appropriate to refer to Section 11 of the Consumer Protection Act, 1986, which is as follows:
"11. Jurisdiction of the District Forum.--
(1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed does not exceed rupees twenty lakhs (2) 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 ALLOWED PAGE 6 OF 13 FA/700/2013 MR. VIKAS RAJ SINGH VS. MR. SUNIL KUMAR JAIN D.O.D.: 27.05.2024 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."
8. Analysis of Section 11(2) of the Consumer Protection Act, 1986 leads us to the conclusion that the District Commission shall have the territorial jurisdiction where Opposite Party 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 the cause of action arose.
9. Further, we deem it appropriate to refer to the Judgment of the High Court of Delhi in W.P.(C) 11424/2016 & C.M No. 44784/2016 titled "Delhi State & District Consumer Courts Practitioner Welfare Association (Regd) Vs Lieutenant Governor & Ors." wherein it was categorically observed hereunder as:
"2. The petitioner has placed reliance on the order dated 31st October, 2007 passed by the State Commission, Delhi in Revision Petition No. 07/18 Singh's Dental Hospital v. Amrit Lal Dureja. In this case, a preliminary objection regarding the territorial jurisdiction of the District Forum (South-West) was taken on the premise that the Dental Hospital of the petitioner was located in the territorial jurisdiction of the District Forum (West) whereas the complaint was filed before the District Forum (South - West). This objection was rejected by the District Forum (South West), resulting in the filing of the revision petition. By the decision dated 31st October, 2007, the State Commission, Delhi had held as follows:
"4. Even otherwise city of Delhi is one District and has been divided into several districts for the sake of administrative convenience and not for the sake of territorial jurisdiction. Consumer Protection Act 1986, provides that there shall be one District Forum in one District. Since Delhi happens to be one District, every District Forum has jurisdiction over every case and ALLOWED PAGE 7 OF 13 FA/700/2013 MR. VIKAS RAJ SINGH VS. MR. SUNIL KUMAR JAIN D.O.D.: 27.05.2024 if any District Forum takes final decision in the matter, irrespective of having no administrative territorial jurisdiction, the order cannot be set aside. Order can be set aside, if the person taking final decision is not competent to take decision. District Forums are presided by a person who is or has been or is qualified to be a District Judge and since every District Forum is headed by such person, therefore any decision taken by any District Forum irrespective of the complaint being not within the territorial jurisdiction of the concerned District Forum cannot be set aside or held invalid."
3. The writ petitioner has relied on other orders of the State Commission passed thereafter placing reliance on the decision dated 31st October, 2007 holding that Delhi was one district for the purposes of the territorial jurisdiction of the District Forums.
4. A grievance is made before us that despite the clear dicta of the decisions of the State Commission, the District Forums are not abiding by the same and are dismissing complaints on grounds of territorial jurisdiction in violation of the binding findings.
5. It cannot be denied that judicial discipline mandates that the District Forums shall strictly abide by the decisions of the State Commission, which bind their consideration. In view thereof, all District Forums shall ensure that they abide by the principles laid down by the State Commission in their decisions."
10. A perusal of the aforementioned decision leaves no room for confusion that Delhi is one district and has been divided into several districts for the sake of administrative convenience. Having already taken this view on several occasions earlier, we are again constrained to reiterate that it is a consistent view of this Commission that since Delhi happens to be one District, every District Commission has territorial jurisdiction over every consumer dispute. Therefore, in view of the established position of law, the District Commission has rightly dismissed the application regarding the lack of territorial jurisdiction.
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11. The next question for consideration before us is whether the Respondent falls within the definition of consumer as provided under Section 2(1)(d) of the Consumer Protection Act, 1986.
12. It is argued by the Appellant that the Respondent has invested the money with the Appellant in order to augment his income and the District Commission has failed to consider the documents produced by him before it as the member-client agreement dated 03.05.2011 clearly shows that the investment was made by the Respondent in the commodity market and the statement of account also shows that number of times, the Respondent invested and trade in various commodities, therefore, the Appellant cannot be considered as consumer as per the provisions of Consumer Protection Act, 1986.
13. On the other hand, the Respondent has submitted that the Respondent was not involved in the business of investing money with the multi commodity exchange and that the investment was made only to augment the income and not to earn profits.
14. To deal with this issue, primarily we deem it appropriate to refer to Section 2 (1)(d) of Consumer Protection Act, 1986, which provides as follows:
"(d) "consumer" means any person who,--
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the ALLOWED PAGE 9 OF 13 FA/700/2013 MR. VIKAS RAJ SINGH VS. MR. SUNIL KUMAR JAIN D.O.D.: 27.05.2024 person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose.
Explanation.--For the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;"
15. The above statutory provision makes it clear that a person who buys goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment is a consumer. It is further clear that the commercial purpose does not include if such goods bought or services availed by him exclusively for the purpose of earning his livelihood.
16. Further, it is imperative to refer to the dicta of the Hon'ble National Commission in CC-50/2011 titled Rajesh Gulati & Anr. Vs. DLF Commercial Complexes Ltd. decided on 18.03.2016, wherein, the Hon'ble National Commission has held as under:
"It is not disputed that the Complainants had booked the office space in the commercial project undertaken by the OP. Therefore, if we go by the definition of "consumer" as envisaged under section 2(1)(d)(ii), it is clear that the Complainants do not fall within the definition of "consumer"
as they have availed of the services for the commercial purpose, unless their case is covered under the Section 2(1)(d) of the C.P. Act, 1986.
Section 2(1)(d) of the Act defines the term "Consumer" as under:
2 (1) (d) "Consumer" means any person who-
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i. Buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale of for any commercial purpose; or ii. [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and iii. includes any beneficiary or such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose];
Explanation - For the purposes of this clause, "commercial purpose does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self- employment} On reading of the above, it is clear that in order to avail the benefit of the explanations, the onus lies on the Complainant to show that they have availed the services of the Opposite Party exclusively for the purpose of earning their livelihood by means of self-employment."
17. The above dicta makes it clear that the definition of 'Consumer' does not include a person who avails such services for any commercial purpose. Furthermore, it is also clear that the onus lies on the Respondent/Complainant to show that he has availed the services of the Appellant/Opposite Party exclusively for the purpose of earning his ALLOWED PAGE 11 OF 13 FA/700/2013 MR. VIKAS RAJ SINGH VS. MR. SUNIL KUMAR JAIN D.O.D.: 27.05.2024 livelihood by means of self-employment. Returning to the facts of present case, the Respondent has himself admitted that the amount of Rs.4,00,000/- has been invested by him with the Appellant in order to avail return on the said investment and the Appellant had provided a return amounting to Rs.90,200/- to the Respondent initially but had failed to provide return subsequently, aggrieved by which, the complaint before the District Commission has been filed.
18. Furthermore, the Appellant has filed the member client agreement dated 03.05.2011, which reflects that the Respondent was desirous of trading in those contracts which are admitted for dealing on the Multi Commodity Exchange of India Ltd. Hence, it is clear that the Respondent in the present case has invested the amount of Rs. 4,00,000/- in order to avail the return (profits) upon the said invested amount. Therefore, in our considered view, the Respondent does not fall within the definition of Consumer as defined under the Consumer Protection Act, 1986 and in view of the established position of law, we remark that the District Commission has made a glaring error in dismissing the application filed by the Appellant before District Commission for seeking the dismissal of the complaint case on the ground that the Respondent does not falls within the definition of 'Consumer'.
19. Resultantly, in view of the above discussion, we set aside the order dated 10.06.2013, passed by the District Consumer Disputes Redressal Commission (East), Saini Enclave, Delhi-110092.
20. Consequently, the Appeal filed by the Appellant is allowed.
21. Before parting with this judgment, since the Respondent in the present case does not falls within the definition of 'Consumer' as defined under Consumer Protection Act, 1986, the complaint no. 219 of 2013 filed by the Respondent before District Commission is not maintainable and the ALLOWED PAGE 12 OF 13 FA/700/2013 MR. VIKAS RAJ SINGH VS. MR. SUNIL KUMAR JAIN D.O.D.: 27.05.2024 Respondent is at liberty to seek remedy before appropriate court in accordance with the law.
22. Application(s) pending, if any, stand disposed of in terms of the aforesaid judgment.
23. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties as well as forwarded to the corresponding E-mail address available on the record i.e. [email protected] (Appellant) and [email protected] (Respondent).
24. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) (J. P. AGRAWAL) MEMBER (GENERAL) Pronounced On:
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