Madhya Pradesh High Court
Anand Kumar Jain vs District Consumer Disputes Redressal ... on 28 January, 2002
Equivalent citations: 2002(2)MPHT430
Author: Dipak Misra
Bench: Dipak Misra
ORDER Dipak Misra, J.
1. Invoking the extra-ordinary jurisdiction of this Court under Article 227 of the Constitution of India the petitioner has prayed for issue of a writ of certiorari for quashment of the order dated 19-9-1996 passed by the National Consumer Disputes Redressal Commission, New Delhi, Annexure P-3 whereby the said Commission in Revision No. 294/1996 affirmed the order dated 25-6-1994 passed by the M.P. State Consumer Disputes Redressal Commission, Bhopal in Appeal No. 350/93 whereby the State Commission had confirmed the order dated 4-6-1993 passed in Consumer Case No. 91/1992 by the District Consumer Redressal Forum, Bhopal.
2. Facts as have been unfurled are that the petitioner was engaged in the business of purchasing and selling of shares in the name and style of Firm M/s Profit Deals, Bhopal. The respondent No. 4 who was having 500 shares of Magnum Multiplier Scheme of the State Bank of India sold the same to the petitioner and collected a cheque towards the amount of sale price of the said shares. Out of the aforesaid shares the petitioner sold 100 shares to Radha Balwani. When the shares were sent to the State Bank of India, the transfer was refused as the signature of the joint holder was not made on the transfer form. As pleaded, intimation was given to the respondent No. 4 to complete transfer formalities of the shares but he failed to comply with the same as a consequence of which the petitioner had no option but to stop the payment of the cheque. Thereafter the respondent No. 4 filed the Consumer Dispute before the District Consumer Disputes Redressal Forum. Before the District Forum the petitioner raised the plea that the consumer dispute was not maintainable as the transaction is not covered within the purview of the Consumer Protection Act, 1986 (for brevity 'the Act'). As alleged, the District Consumer Redressal Forum without considering the factual matrix in proper perspective directed payment of a sum of Rs. 56,350/- with interest at the rate of 15% per annum, and further directed that the costs of Rs. 500/- be paid by the petitioner. Against the said order the petitioner preferred an appeal but the appellate authority dismissed the same without appreciating the contentions raised by the petitioner. The revision was preferred before the National Commission but the same faced the summary rejection.
3. It is averred in the writ petition that the Forums below have erred in law by entertaining the dispute of this nature as there is complete lack of jurisdiction. Reference has been made to Section 2 of the Act to show that the respondent No. 4 was a seller of the shares and the petitioner was the purchaser and hence, the respondent No. 4 would not come within the concept of consumer. It has been urged that Section 12 of the Act prescribes the manner in which complaint is to be made and as the respondent No. 4 was not a consumer he could not have invoked the jurisdiction of the District Consumer Disputes Redressal Forum. It is putforth that as the proceedings were not maintainable before the Tribunals the orders passed by them are unsustainable in law and liable to be quashed. It is also urged that on the basis of the orders passed steps have been taken to realise the amount from the petitioner by way of issue of warrants of arrest by the District Forum which is also liable to be quashed.
4. A return has been filed by the respondent No. 4 contending, inter alia, that the petitioner had not raised the issue of jurisdiction before the Original Forum and raised the same for the first time before the Appellate Forum and hence, orders passed by the said authorities are impeccable. It is putforth that the petitioner is a share broker and he purchased 500 shares at Rs. 115/- on 28-4-1992 from the respondent No.4 and issued an account payee cheque of Rs. 56,350/- after deducting his commission of 2% and therefore, the status of the respondent No. 4 can not be questioned. It has also been averred that the petitioner had stopped the payment of cheque on certain frivolous pleas which were negatived by the District Consumer Disputes Redressal Forum and it was affirmed by the higher forum and hence, this Court should not interfere in exercise of Article 227 of the Constitution. It is also highlighted that the issue of jurisdiction in the case at hand pertains to status of he respondent No. 4 to be a consumer under Section 2(1)(d) of the Act and such an issue being a mixed question of fact and law can not be gone into at this stage, as the petitioner had not availed the opportunity at the proper forum. It has also been putforth that assuming the averment made by the petitioner is correct then also there is no illegality in the order passed by the Forums below.
5. I have heard Mr. Rohit Arya, learned counsel for the petitioner and Mr. A.P. Shroti, learned counsel for the respondent No. 4.
6. It is submitted by Mr. Rohit Arya that the respondent No. 4 is not a consumer as defined under the Act and hence, the proceeding initiated at his instance was untenable and accordingly, the confirmation of the order by the higher Forum is of no significance on the principle that when infrastructure goes the super structure is bound to collapse. The learned counsel has vehemently canvassed that the plea of jurisdiction was categorically raised in the written statement but the same was not dealt with by the authorities below and, therefore, the matter requires to be adjudicated.
7. Mr. Shroti, learned counsel for the respondent No. 4 has urged that the plea of jurisdiction raised by the petitioner was done in a flippant manner and even if it is accepted that it was raised it was not built up and, therefore, the authorities were justified in not dwelling upon the same. It is urged by him that the issue of jurisdiction has to be raised in a specific manner by supplying data so that the Tribunal can delve into the factum of jurisdiction, The learned counsel has further proponed that even if the issue of jurisdiction is taken into consideration, on the basis of the pleadings which are available before this Court it would become plain as noon day that the Forums below had jurisdiction to deal with the matter.
8. To appreciate the rival submissions raised at the Bar, have carefully perused the orders impugned before this Court. It is apposite to state here that the petitioner had issued 'stop payment instruction' to the Bank, The case of the respondent No. 4 is that the said instructions were issued as the value of the shares had fallen in the mean time. The petitioner was the opposite party before the Original Forum and had contended that when the complainant was required to complete certain formalities and he did not do so, instruction for 'stop of payment' was issued. The District Forum has referred to Section 118(a) of the Negotiable Instruments Act and dealt with the concept of presumption and also taken note of the fact that complainant had got his signature attested by the bankers and the opposite party, the writ petitioner herein, got the transfer deed executed by the complainant and came to hold that the certificates were not returned on the ground that the transferer's signatures were not attested. The District Forum came to hold that the opposite party therein was also not justified in issuing the instruction 'stop of payment of the cheque'. Having recorded such findings the Forum directed the payment for the sum and interest as indicated hereinbefore. The State Tribunal affirmed the order.
9. Mr. Rohit Arya, learned counsel for the petitioner has submitted that in memorandum of appeal the plea with regard to jurisdiction was raised but the appellate authority did not address to the same. At this juncture Mr. Shroti, learned counsel for the respondent No. 4 has drawn the attention of this Court to the Paragraph 10 of the written statement to show that the present petitioner had only indicated that dispute in question is not covered under the Act and hence, it is liable to be dismissed. The stand taken in Paragraph 10 is absolutely cryptic. I need not to advert to the stand taken in the memo of appeal and the written submission before the appellate forum as before the original forum the issue of jurisdiction was not properly raised.
10. I have already indicated hereinbefore the issue of jurisdiction was not properly raised and that is why the original Forum has not dealt with the same. However, considering the totality of circumstances this Court thought it apposite to dwell upon the issue of jurisdiction which emerges in factual backdrop of the pleadings. The respondent No. 4 had filed the complaint before the District Consumer Disputes Redressal Forum and he had brought on record the complaint filed before the said Forum. In Paragraph 2 of the application dated 8-8-1992 the respondent No. 4 had categorically and unequivocally asserted that he was in possession of certain shares and he sold the shares to Anand Kumar Jain, the present writ petitioner on 28th April, 1992 at Rs. 115/-. After completing all the formalities the said respondent therein had issued the cheque for the agreed amount after deducting 2% towards his commission. In the written statement which has been brought on record as Annexure P-7, the present writ petitioner had stated that there was discussion for purchase but all the formalities were not completed. It is putforth that the whole transaction was not complete on 28-4-1992. However, it is not disputed that the petitioner had issued a cheque after deducting his commission at the rate of 2%.
11. The core question that falls for consideration is whether in the obtaining factual matrix the respondent No. 4 could be regarded as a consumer. On a look at the dictionary clause the term consumer has been defined in Sub-Section (1) of Section 2 of the Act. The said definition reads as under :--
"2 (1). 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 does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires any services for a consideration which has been paid or promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services availed of with the approval of the first mentioned person."
Section 12, in this context is relevant. The said provision reads as under :--
"12. Manner in which complaint shall be made.-- A complaint, in relation to any goods sold or delivered or any service provided, may be filed with a District Forum by--
(a) The consumer to whom such goods are sold or delivered or such service provided;
(b) any recognised consumer association, whether the consumer to whom the goods sold or delivered or service provided is a member of such association or not; or
(c) the Central or the State Government.
Explanation :-- For the purpose of this Section "recognised consumer association" means any voluntary consumer association registered under the Companies Act, 1956 (1 of 1956), or any other law for the time being in force."
Submission of Mr. Arya is that as the petitioner had purchased the shares and issued a cheque, he may be liable for criminal prosecution but he can not be proceeded under the Act. While so submitting, the learned counsel for the petitioner very fairly accepted that initiation of a criminal prosecution under the Act would not debar a person to proceed in a civil proceeding. But, the seminal issue would be whether the forum which has been chosen by the respondent No. 4 had the jurisdiction. The same would depend upon the X-ray of the anatomy of the provisions which have been referred to above. The term 'consumer' relates to the person who hires 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 include a beneficiary of such services. A complaint can be filed by a consumer. If the exposition of facts is appreciated in proper perspective it is quite vivid that the respondent No. 4 asked the petitioner to purchase the shares certificates to sell and for such an activity the petitioner charged the commission up to 2%. It is to be taken note of the fact that the petitioner is a share broker and was involved in the activity of selling and purchasing of shares. The contract between the seller and broker are on the basis of the principal to principal. It can irrefragably be stated that while selling or purchasing the shares a sell or purchase price in its ambit covers the concept of commission. It is not the case of the petitioner that he had undertaken the responsibility in a gratuitous manner. The respondent No. 4 had placed reliance on the petitioner as the concept of commission was a basic ingredient in the transaction. The respondent No. 4 did not accept to earn any benefit under any fortuitous circumstances and the commitment given by the petitioner was neither gratuitous nor an act of benevolence. He can not be termed as a good Samaritan. The petitioner was indubitably engaged in rendering financial services by accepting the commission. Acceptance of commission is definitely an act of methodical business and engulfs rendering of services in its conceptual eventuality. It can be stated with certitude that the relationship between the seller and the broker is a relationship providing services for consideration, that is charges of commission. Charging of commission becomes the bedrock of such a transaction which in its connotative expanse includes the factum of rendering of services and thereby metamorphoses the legal relationship between the petitioner and the respondent No. 4. The petitioner can not escape from the jurisdictional orbit of the Act by taking recourse to the doctrine of expedience and advancing a plea that the petitioner can not take refuge under the Act as he docs not satisfy the basic requirement of a consumer. In my considered view the proponement by Mr. Arya on this score though portrays and impressive picture and frescoes a legalistic scenario in a contabile manner but, a significant but, the concept so built has to succumb to the principle, of interpretation which engulf resiliency and renitence for the simple reason this Court can not accede to the narrow interpretation putforth by the learned counsel as such an acceptance would run counter to the purposive and purvasive definition of the term 'consumer' which occurs in Section 2(1)(d) of the Act. Hence, I repel the proposition propounded by Mr. Arya,
12. I will be failing in my duty if I do not mention that Mr. A.P. Shroti, learned counsel appearing for the respondent No. 4 had raised an objection that the writ petition is not maintainable before this Court due to lack of territorial jurisdiction of this Court to advert to the merits of the case under Article 227 of the Constitution inasmuch as the National Forum is situated at Delhi and orders passed by District Forum as well as the State Forum have merged in the final order. Though the aforesaid argument is quite attractive, I have restrained myself from adverting to the same in the present case as the issue could be decided on merits.
13. As no other point was urged by the learned counsel for the petitioner, ex consequenti, the writ petition, being sans merit, stands dismissed without any order as to costs.