State Consumer Disputes Redressal Commission
Dr. Vinay Gupta vs C.G. Rajya Beej Evam Krishi Vikas Nigam ... on 25 April, 2014
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/13/430
Instituted on : 09.07.2013
Dr. Vinay Gupta, Age 58 years,
S/o : Late O.P. Gupta,
Nyay Sadan Marg,
Bilaspur, District Bilaspur (C.G.) ... Appellant
Vs.
1. C.G. Rajya Beej Evam Krishi Vikas Nigam Ltd.,
Through : President, Beej Bhawan,
Telibandha, G.E. Road, Ravigram,
Raipur (C.G.)
2. C.G. Rajya Beej Evam Krishi Vikas Nigam Ltd.,
Through : Process Incharge,
Seed Process Centre, Dharampura,
Mungeli District Mungeli (C.G.) ... Respondents
PRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
COUNSEL FOR THE PARTIES :
Shri Mukesh Sharma, for appellant.
Shri Vijay Mishra, for respondents.
ORAL ORDER Dated : 25/04/2014 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT.
This appeal is directed against the order dated 10.06.2013, passed by the District Consumer Disputes Redressal Forum, Bilaspur (henceforth "District Forum") in unregistered Complaint Case. By the impugned order, learned District Forum, has dismissed the complaint filed by the appellant (complainant).
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2. Briefly stated, the facts of the complaint filed by the appellant (complainant) before the District Forum are : that the appellant (complainant) is a doctor by profession and his ancestral land is situated at Dhangaon, Post Nirjam Block, District Mungeli. The agricultural land was cultivated by the brother of the appellant (complainant) namely Vikas Gupta on behalf of the appellant (complainant). The respondents (OPs) registered the land of the appellant (complainant) for agriculture seed production for which service charge was paid by the appellant (complainant). It was the responsibility of the respondents (OPs) to provide technical services and to inspection of the agricultural product produced on the land of the appellant (complainant) as service charge was obtained by them. For availing service of the respondents (OPs), the appellant (complainant) deposited a sum of Rs.8,500/- on 29.11.2011 vide receipt No.5208. The appellant (complainant) obtained service of agricultural production on his land and on 13.04.2012 vide receipt No.33044 , 250 bags of gram through Vikas Gupta and vide receipt No.34045 deposited 251 bags J.G. 315 gram for process & procurement. Classification of the said gram was done by the respondents (OPs) in the month of July, 2012 and after classification 105.50 qtls was fixed. The respondents (OPs) had not given information to the appellant (complainant) that in what situation the seeds were kept, by the respondents (OPs). The respondents (OPs) vide letter dated 28.11.2012 // 3 // informed the appellant (complainant)( that the gram deposited by his representative was not upto standard quality. Earlier the respondents (OPs) declared the gram of standard quality, but later the respondents (OPs) declared the gram of sub-standard quality, which comes in the category of deficiency in service. Therefore, the appellant (complainant) consumer complaint before the District Forum seeking compensation of Rs.2,47,925/- from the respondents (OPs).
3. Learned District Forum, after having heard the preliminary arguments of learned counsel for the appellant (complainant) held that the appellant (complainant) is not a consumer of the respondents (OPs) and dismissed the complaint vide impugned order 10.06.2013.
4. Shri Mukesh Sharma, learned counsel for the appellant (complainant) argued that the impugned order passed by the District Forum, is not sustainable in eye of law and is liable to be set aside. He further argued that the learned District Forum, did not appreciate the provisions of Section 2(1)(d) of the Consumer Protection Act, 1986 in its right perspective. The appellant (complainant) deposited a sum of Rs.8500/- as registration fees to C.G. Rajya Beej Evam Krishi Vikas Nigam Limited and the appellant (complainant) is a member of said Corporation and the respondents (OPs) provided services to the appellant (complainant) for agricultural production. On the basis of the membership, the appellant (complainant) deposited gram seeds for // 4 // process and procurement before the respondents (OPs). As the registration fees was paid by the appellant (complainant) to C.G. Rajya Beej Evam Krishi Vikas Nigam Limited, therefore the impugned order passed by the District Forum, is liable to be set aside.
5. Shri Vijay Mishra, learned counsel appearing for the respondents (OPs) supported the impugned order and argued that the appellant (complainant) is not a consumer of the respondents (OPs) and the impugned order passed by the District Forum, does not call for any interference by this Commission.
6. We have heard learned counsel for the parties and have perused the record of the District Forum.
7. Before the District Forum, notices were not issued to the respondents (OPs) as the complaint was dismissed by the District Forum, at motion hearing without registering the complaint.
8. The word "consumer" has been defined in Section 2(1)(d) of the Consumer Protection Act 1986 according to which :-
"(d) "consumer" means any person who,-
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promises, 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 // 5 // 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 person who hires or avails of the services for consideration paid or promises, 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 service availed by him exclusively for the purposes of earning his livelihood by means of self employment;"
9. In the case of The Haryana State Co-operative Housing Federation Limited vs. Santosh Kumar & Anr. 2007 (2) CPR 189 (NC), Hon'ble National Commission, observed thus :
"4. As far as the first objection is concerned as per settled law by this Commission and also by Hon'ble Supreme Court, the Consumer Forums are not debarred from entertaining complaints from the Members of the Co-operative Societies which is the case here. As per settled law this argument has no merit."
10. In the case of M/s National Seeds Corporation Ltd vs. M. Madhusudan Reddy and Another, 2012 AIR SCW 1191, Hon'ble Supreme Court has observed thus :-
// 6 // "32...........Now coming back to the definition of the expression 'consumer' in Section 2(d), a consumer means insofar as is relevant for the purpose of this appeal, (i) a person who buys any goods for consideration; it is immaterial whether the consideration is paid or promised, or partly paid and partly promised, or whether the payment of consideration is deferred; (ii) a person who uses such goods with the approval of the person who buys such goods for consideration; (iii) but does not include a person who buys such goods for resale or for any commercial purpose. The expression 'resale' is clear enough.
Controversy has, however, arisen with respect to meaning of the expression "commercial purpose". It is also not defined in the Act. In the absence of a definition, we have to go by its ordinary meaning. 'Commercial' denotes "pertaining to commerce" (Chamber's Twentieth Century Dictionary); it means "connected with, or engaged in commerce; mercantile; having profit as the main aim" (Collins English Dictionary) whereas the word 'commerce' means "financial transactions especially buying and selling of merchandise, on a large scale" (Concise Oxford Dictionary). The National Commission appears to have been taking a consistent view that where a person purchases goods, "with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit" he will not be a 'consumer' within the meaning of Section 2(d)(i) of the Act. Broadly affirming the said view and more particularly with a view to obviate any confusion - the expression "large scale"" is not a very precise expression - Parliament stepped in and added the explanation to Section 2(d)(i) by Ordinance / Amendment Act, 1993.
33. What needs to be emphasized is that the appellant had selected a set of farmers in the area for growing seeds on its behalf. After entering into agreements with the selected farmers, the appellant supplied foundation seeds to them for a price, with an assurance that // 7 // within few months they will be able to earn profit. The seeds sown under the supervision of the expert deputed by the appellant. The entire crop was to be purchased by the appellant. The agreements entered into between the appellant and the growers clearly postulated supply of the foundation seeds by the appellant with an assurance that the crop will be purchased by it. It is neither the pleaded case of the appellant nor any evidence was produced before any of the Consumer Forums that the growers had the freedom to sell the seeds in the open market or to any person other than the appellant. Therefore, it is not possible to take the view that the growers had purchased the seeds for resale or for any commercial purpose and they are excluded from the definition of the term 'consumer'. As a matter of fact, the evidence brought on record shows that the growers had agreed to produce seeds on behalf of the appellant for the purpose of earning their livelihood by using their skills and labour."
11. In the case of Virender Kumar Jain vs.. Alaknanda Co-operative Group Housing Society Limited & Others, (2013) 9 Supreme Court Cases 383, Hon'ble Supreme Court observed thus :-
"10. The above quoted definition was interpreted by this Court in M.K. Gupta case, LDA v. M.K. Gupta, (1994) 1 SCC 243. After analysing the definition of "consumer", this Court observed : (SCC p. 257, para 6) :
"6. The provisions in the Acts, namely, Lucknow Development Act, Delhi Development Act or Bangalore Development Act clearly provide for preparing plan, development of land, and framing of scheme, etc. Therefore, it such authority undertakes to construct building or allot houses or building sites to citizens of the State either as amenity or as // 8 // benefit then it amounts to rendering of service and will be covered in the expression 'service made available to potential users'. A person who applies for allotment of a building site or for a flat constructed by the development authority or enters into an agreement with a builder or a contractor is potential user and nature of transaction is covered in the expression 'service of any description'. It further indicates that the definition is not exhaustive. The inclusive clause succeeded in widening its scope but not exhausting the services which could be covered in earlier part. So any service except when it is free of charge or under a constraint of personal service is included in it. Since housing activity is a service it was covered in the clause as it stood before 1993."
(emphasis supplied)
11. The ratio of the aforementioned judgment was reiterated in Chandigarh Housing Board v. Avtar Singh (2010) 10 (SCC) 194 :
(2010) 4 SCC (Civ) 113. The questions considered in that case were whether members of the cooperative house building societies, who would have been benefitted by allotment of land under the scheme framed by the Chandigarh Administration could be treated as "consumer" within the meaning of Section 2(1) (d) and whether the District Forum had jurisdiction to entertain the complaints filed by them for refund of 10% earnest money forfeited by the Chandigarh Housing Board. After noticing the earnest money forfeited by the Chandgarh Housing Board. After noticing the relevant passages from the judgment in M.K. Gupta case, LDA v. M.K. Gupta, (1994) 1 SCC 243, this Court observed : (Avtar Singh case (2010) 10 SCC 194 :
(2010) 4 SCC (Civ) 113, SCC pp 215-16 paras 41-42) "41. From what we have noted above, it is crystal clear that even though the 1991 Scheme was ostensibly framed for allotment of land to the Societies for construction of multi-
// 9 // storeyed structures (dwelling units/flats) for their members, but the provisions contained there not only regulated the relationship of the Societies with their members, but also made them jointly and severally responsible for payment of the earnest money, etc. The Finance Secretary and the Board issued directions from time to time for payment of the earnest money and interest by the members of the Societies. If the Scheme had nothing to do with the members of the Societies, then it would not have contained provisions to regulate their eligibility and entitlement to get dwelling units to be constructed on the land allotted by the Board and made them jointly and severally responsible for payment of the premium, etc. and the Finance Secretary would not have issued directions vide Memos dated 9- 6-1993 and 9-3-2000 in the matter of refund of earnest money and interest. The Board too would not have entertained the request made by the members of the Societies for refund of the earnest money and remitted the amount to the Societies after deducting 10%.
42. Thus, even though no formal contract had been entered into between the Chandigarh Administration and the Board on the one hand and the members of the Societies on the other hand, the former exer5cised sufficient degree of control over the latter. By making applications for allotment of land, the Societies will be deemed to have hired or availed the services of the Chandigarh Administration and the Board in relation to housing construction as elucidated and explained in M.K. Gupta case LDA v. M.K. Gupta, (1994) 1 SCC 243 and Balbir Singh case. If the Scheme had been faithfully implemented and land had been allotted to the Societies, their members would have been the3 actual and real beneficiaries. Therefore, they // 10 // were certainly covered by the definition of 'consumer' under Section 2(1)(d)(ii), the second part of which includes any beneficiary of the services hired or availed for consideration which has been said or promised or promised or partly paid any partly promised. As a sequel to this, it must be held that the members of the Societies had every right to complain against illegal, arbitrary and unjustified forfeiture of 10% earnest money and non-refund of 18% interest and the District Consumer Forum did not commit any jurisdictional error by entertaining the complaints". (emphasis supplied).
14. In our view, there is no merit in the submission of the learned Senior Counsel. In the4 complaints filed by them, the appellants had primarily challenged the action of Respondent 1 to refund the amounts deposited by them and thereby extinguished their entitlement to get the flats. Therefore, the mere fact that the action taken by Respondent 1 was approved by the Assistant Registrar, Co-operative Societies and higher authorities, cannot deprive the appellants of their legitimate right to seek remedy under the Act, which is in addition to the other remedies available to them under the Cooperative Societies Act. Law on this issue must be treated as settled by the judgments of this Court in Thyirumurugan Coop. Agricultural Credit Society v. M. Lalitha, (2004) 1 SCC 305, Kishore Lal v. ESI Corpn. (2007) 4 SCC 579 : (2007) 2 SCC (L & S) 1 and National Seeds Corpn. Ltd. v. M. Madhusudhan Reddy, (2012) 2 SCC 506 : (2012) 1 SCC (Civ) 908."
12. In the instant case the respondents (OPs) are President and Process Incharge of C.G. Rajya Beej Evam Krishi Vikas Nigam Limited. The appellant (complainant) deposited a sum of Rs.8,500/- with // 11 // respondents (OPs) towards registration fees and he is a member of the said Corporation. According to the appellant (complainant), he purchased gram seeds from the respondent No.1 (O.P.No.1) and sown the same in his field and obtained services from the respondents (OPs) for cultivation and gram seed was deposited by the appellant (complainant) with the respondents (OPs). Looking to the transactions held between the appellant (complainant) and the respondents (OPs), it appears that the appellant (complainant) is a member of the said Corporation and he is a farmer (agriculturist). The appellant (complainant) deposited registration fees to the respondents (OPs) and thereafter he deposited his seed and after lapse of long span of time, the respondents (OPs) told him that the seeds deposited by him are of sub standard quality.
13. Looking to the facts of the case, it appears that the appellant (complainant) is a consumer of the respondents (OPs) and the dispute between the appellant (complainant) & respondents (OPs), is a consumer dispute, therefore, the Consumer Fora has jurisdiction to take cognizance in the matter.
14. Therefore, the impugned order dated 10.06.2013, passed by the District Forum suffers from illegality and infirmity and is unsustainable.
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15. Hence, we allow the appeal of the appellant (complainant) and set aside the impugned order dated 10.06.2013, passed by the District Forum and the case is remanded back to the District Forum for deciding the case afresh. The learned District Forum, is directed to provide opportunity to the respondents (OPs) to file their written statement and also provide opportunity to both the parties to file documents and thereafter to decide the case on its own merits. Parties are directed to appear before the District Forum, Bilaspur (C.G.) on 21.05.2014. No order as to the cost of this appeal.
(Justice R.S. Sharma) (Ms. Heena Thakkar)
President Member
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