State Consumer Disputes Redressal Commission
M/S Sant Poultry Feed Agency vs Rajpal Singh on 11 July, 2017
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
DATE OF DECISION : 11.07.2017
First Appeal No. 848 of 2016
Date of institution : 10.11.2016
Sant Poultry Feed Agency, Shop No. 6, Red Cross Building, Near
Satluj Club Ferozepur City, District Ferozepur through its
Partners:-
(a) Dinesh Kumar Oberoi son of Sant Ram Resident of 34,
Adarsh Nagar, Ferozepur City, District Ferozepur
(b) Mahinder Pal @ Mohinder Pal Singh S/o Avtar Singh, R/o H.
No. 77, Vikas Vihar, Ferozepur City.
....Appellants/Op No. 1
Versus
1. Rajpal Singh (son of Sh. Harchand Singh) Sole Proprietor of
Rajpal Poultry Farm, Village Chak, Sherewala, District Sri Muktsar
Sahib
....Respondent No.1/Complainant
2. Uttra Foods and Feeds (P) Ltd., Village Kanpura, Tehsil
Amloh, District Fatehgarh Sahib (Punjab) through its Authorized
Signatory.
3. Hari Singh Bajwa, Assistant Sales Manager, Venky's India
Ltd. C/o Uttra Foods and Feeds (P) Ltd., resident of Bedi Colony,
Phase-2, Sodhe Wala Road, Opposite Ganesha Enclave,
Ferozepur City, District Ferozepur.
....Proforma Respondents
First Appeal against the order dated
4.10.2016 of the District Consumer
First Appeal No. 848 of 2016 2
Disputes Redressal Forum, Sri Muktsar
Sahib.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr. Gurcharan Singh Saran, Judicial Member.
Present:-
For the appellant : Sh. H.S. Bedi, Advocate
For respondent No.1 : Sh. Parvez Chugh, Advocate
For respondent Nos.2&3: Sh. Arun Dogra, Advocate
2nd Appeal
First Appeal No. 851 of 2016
Date of institution : 11.11.2016
M/s Uttra Foods and Feeds (P) Ltd., Village Kanpura, Tehsil
Amloh, District Fatehgarh Sahib (Punjab) through its Authorized
Signatory and SPA Holder Sh. Jiwan Kumar Handa.
....Appellant/Op No. 2
Versus
1. Rajpal Singh son of Sh. Harchand Singh, Sole Proprietor of
Rajpal Poultry Farm, Village Chak Sherewala, District Sri Muktsar
Sahib
....Respondent No.1/Complainant
2. Sant Poultry Feed Agency, Shop No. 6, Red Cross Building,
Near Satluj Club Ferozepur City, District Ferozepur through its
Partners:-
(a) Dinesh Kumar Oberoi son of Sant Ram Resident of H. No.
34, Adarsh Nagar, Ferozepur City, District Ferozepur
(b) Mahinder Pal, Resident of H. No. 34, Adarsh Nagar,
Ferozepur City, District Ferozepur
3. Hari Singh Bajwa, Assistant Sales Manager, Venky's India
Ltd. C/o Uttra Foods and Feeds (P) Ltd., resident of Bedi Colony,
Phase-2, Sodhe Wala Road, Opposite Ganesha Enclave,
Ferozepur City, District Ferozepur.
First Appeal No. 848 of 2016 3
....Respondents No.1&3/Op No. 1 & 3
First Appeal against the order dated
4.10.2016 of the District Consumer
Disputes Redressal Forum, Sri Muktsar
Sahib.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr. Gurcharan Singh Saran, Judicial Member.
Present:-
For the appellant : Sh. Arun Dogra, Advocate
For respondent No.1 : Sh. Parvez Chugh, Advocate
For respondent Nos.2&2B: Sh. H.S. Bedi, Advocate
For respondent No. 3 : Ex-parte.
GURCHARAN SINGH SARAN, JUDICIAL MEMBER
ORDER
This order will dispose of both the above mentioned two appeals as both the appeals are cross appeals and against the impugned order dated 4.10.2016 passed in Consumer Complaint No. 128 dated 24.09.2015 by the District Consumer Disputes Redressal Forum, Sri Muktsar Sahib (in short the "District Forum") vide which the complaint filed by complainant was partly allowed with the direction to the opposite parties to make payment of Rs. 3,25,100/- alongwith interest @ 9% p.a. from the date of payment and also pay Rs, 10,000/- as cost.
Appeal No. 848 of 2016 has been filed by Op No. 1 whereas Appeal No. 851 of 2016 has been filed by Op No. 2 for setting aside the impugned order.
First Appeal No. 848 of 2016 4
2. Complaint was filed by the complainant under the Consumer Protection Act, 1986 (in short 'the Act') against the opposite parties (hereinafter referred as Ops) on the averments that the complainant is doing the business of poultry farm, having its poultry farm at Village Chak Sherewala, District Sri Muktsar Sahib, under the name and style of Rajpal Poultry Farm, Village Chak Sherewala. Op No. 1 is dealing in the sale of poultry feed etc. whereas Op No. 2 is manufacturer of the feed. Op No. 3 is the Assistant Sales Manager of Op No. 2 of Vankey's India Ltd., sister concern of Op No. 2. It was averred in the complaint that the complainant used to purchase the poultry feed from Op Nos. 1 & 2 through Op No. 3 from time to time in cash or by way of issuance of cheques in favour of Op No. 1. Poultry farm is the only source of income of the complainant. At the time of starting the business, Op No. 1 obtained blank signed cheques as a security i.e. cheque No. 000042 of Rs. 2,56,700/- and cheque No. 000046 of Rs. 2,50,600/- of HDFC Bank, Kotkapura Road, Civil Lines, Sri Muktsar Sahib. In the year 2014, complainant purchased the feed from Op No. 2 against bills as under:-
Dated No. of Bags Name of Feed Company Amount 26.5.2014 200 Bharat Feeds Panchkula 2,56,700/- 7.6.2014 200 Bharat Feeds Panchkula 2,78,100/- 10.7.2014 200 Sant Poultry Feed Agency 2,28,200/- Op No. 1 30.7.2014 200 Sant Poultry Feed Agency 2,50,600/- Op No. 1 29.8.2014 200 Bharat Feeds, Panchkula 2,50,600/-
12,64,200/-
Complainant made the following payments:-
First Appeal No. 848 of 2016 5
Dated Through Cheque/ Cash Amount
5.9.2014 000040 in the name of Bharat 50,000/-
Feed
24.9.2014 Cash payment to Op No. through 1,30,000/- in
Op No. 3 cash against the
own self hand-
writing of Op No.
3.
29.10.2014 Cheque No. 000052 72,896/-
28.11.2014 Through Cheque No. 000053 in 1,84,200/- the name of Op No. 1 16.12.2014 Through Cheque No. 000054 Rs. 1,37,900/- 30.12.2014 Through cheque No. 000047 in Rs. 2,50,600/- the name of Op No. 1 23.1.2015 Through cheque No. 000059 Rs. 80,600 18.2.2014 Through cheque No. 000045 in 2,28,200/- the name of Op No. 1 In this way, against the goods of Rs. 12,64,200/-, he paid a sum of Rs. 16,89,396/-. Excess payment of Rs. 4,25,196/- was paid to Op No. 1 and now Op Nos. 1 & 2 have stopped to supply the feed to the complainant, as a result of which, the complainant suffered an irreparable loss. Alleging deficiency in service against the Ops, complaint was filed before the District Forum seeking returns of cheque Nos. 000042 and 000046, deliver poultry feed for a sum of Rs. 4,25,196/- already paid to the Ops or in the alternative refund that amount alongwith interest @ 12% p.a., pay Rs. 10,000/- as compensation for mental tension and harassment and Rs. 10,000/- as litigation expenses.
3. Upon notice, the complaint was contested by the Ops. Op No. 1 in its separate written reply took the preliminary objections that the complainant is not a consumer as the dispute between the parties is commercial in nature, therefore, Forum had got no jurisdiction to hear and try this complaint; the complaint is First Appeal No. 848 of 2016 6 just a counter blast of criminal proceedings against the complainant before the CJM, Ferozepur under Section 138 of N.I. Act; complicated questions of law and facts are involved, which cannot be addressed in the summary procedure. On merits, it was denied that Mahinderpal is registered partner of the firm. The sale and purchase of feed between the complainant and Ops was admitted. The payment was made by the complainant with regard to purchase of the feed from the Ops. Cheque No. 000042 dated 18.3.2015 of Rs. 2,56,700/- and cheque No. 000046 dated 18.3.2015 of Rs. 2,50,600/- was issued in the name of Ops and the same were dishonoured on 18.5.2015 and 29.5.2015 for want of sufficient funds. Legal notice as required under Section 138 of the N.I. Act was issued against the complainant but the complainant firm failed to make the payment within statutory period of 15 days and now the complaint under Section 138 of the N.I. Act is pending before the CJM, Ferozepur. Apart from the entries referred in the complaint, there were 4 other entries against which the feed was purchased by the complainant as under:-
a) Bill dated 28.3.2014 of 50 bags for sum of Rs. 65,900/-
b) Bill dated 28.3.2014 of 150 bags for sum of Rs. 1,93,200/-
c) Bill dated 2.5.2014 of 200 bags for sum of Rs. 2,56,600/-
d) Bill dated 31.3.2014 of 200 bags for sum of Rs. 2,45,300/-
Thus, the total feed for a sum of Rs. 20,25,200/- was purchased by the complainant on credit. Out of a sum of Rs. 10,63,000/-, a sum of Rs. 9,62,200/- is still outstanding. No amount of Rs. 50,000/- on 5.9.2014, Rs. 1,30,000/- on 24.9.2014, First Appeal No. 848 of 2016 7 Rs. 72,896/- on 29.10.2014, Rs. 1,37,900/- on 16.12.2014, Rs. 80,600/- on 23.1.2015 was received. It was further mentioned that a sum of Rs. 1,00,000/- dated 5.5.2015, Rs. 5,000/- on 8.5.2015 and RS. 50,000/- on 18.5.2015 was received by the Ops. It was denied that a sum of Rs. 16,89,396/- was paid by the complainant on account of purchase of feed from Ops. There was no deficiency in service on the part of Ops. Complaint is without merit, it be dismissed.
4. Op Nos. 2 & 3 in their written reply took the preliminary objections that the complainant is not a consumer; the matter is of Civil nature and needs voluminous evidence with regard to account matter between the parties; no complaint is maintainable for return of cheque Nos. 000042 and 000046 delivered to the Ops. On merits, it was admitted that Op No. 1 is dealing in poultry feed. It was denied that Venky's India Limited is the manufacturer of the poultry feed. However, Uttra Foods Pvt. Ltd. Is the manufacturer of the poultry feed. It was denied that complainant purchased the poultry feed from Op No. 2 and he purchased the feed from Op No. 1 and payment, if any, was made to Op No. 1. Sale purchase transaction was made between the complainant and Op No. 1. On the instructions of Op No. 1, Op No. 3 used to collect the payment and issued the printed receipt of Op no. 2 and deposits the same with Op No. 2 who credited in the account of No. 1. Cheque Nos. 000042 and 000046 were given to Op No. 1. Payments were made to Op No. 1 except payments, which were made through Op No. 3 i.e. Rs. 5,000/- dated 8.5.2015 against First Appeal No. 848 of 2016 8 receipt No. 4114 and Rs. 50,000/- dated 18.5.2015 against receipt No. 4115. It was denied that the complainant deposited a sum of Rs. 1,30,000/- with Op No. 3. The matter in dispute is not a consumer dispute, therefore, the consumer complaint is not maintainable.
5. Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf, the complaint was allowed as referred above. Hence, these appeals by Op Nos. 1 & 2.
6. We have heard the learned counsel for the appellant/Op No. 1 Mr. H.S. Bedi, Advocate, learned counsel for the appellant/Op No. 2 Mr. Arun Dogra, Advocate and counsel for the respondent/complainant Mr. Parvez Chugh, Advocate.
7. It was argued by the counsel for the appellant that the complainant is not a consumer as defined under Section 2(1)(d) of the Act. The definition of the consumer has been defined under Section 2(1)(d) of the CP Act, is reproduced as under:-
"(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 First Appeal No. 848 of 2016 9 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 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 purposes;
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;"
In case we go through the abovesaid definition of the 'consumer', as defined under the Act, the commercial activity is not First Appeal No. 848 of 2016 10 covered unless it is specifically averred and proved on the record that the goods purchased or services availed by the complainant exclusively for the purposes of earning his livelihood by means of self employment. In case we go through the complaint in para No. 1 of the complaint, it has been mentioned that the complainant is doing the business of poultry farm which denotes the commercial activity being done by the complainant as a poultry business. In para No. 3 of the complaint, it has been stated that the poultry farm is the only source of income of the complainant but that itself is not sufficient. Source of income is different than self employment. The income can be without employment, through anybody else. Therefore, averments in the complaint do not comply with the requirement of consumer as required under Section 2(1)(d) of the Act.
8. Counsel for the complainant was unable to rebut this preposition, therefore, we are of the opinion that the complainant is not a consumer as defined under Section 2(1)(d) of the Act and accordingly, consumer complaint is not maintainable before the Forum. A specific plea was taken by the Ops in their written reply. Although, in para No. 16, it has been mentioned that it is to be appreciated whether the complainant is the consumer and the Forum has the territorial jurisdiction. The District Forum gave the findings with regard to the territorial jurisdiction but no findings were recorded how the complainant is consumer. In case a point was taken by the District Forum to determine whether the complainant is a consumer or not, it was the duty of the Forum to First Appeal No. 848 of 2016 11 record the findings. Not to record the findings on the point, specifically taken by the Ops is the grave error on the part of President and Members of the District Forum.
9. Once it is held that the complainant is not a consumer as defined under the CP Act then we are not supposed to give the findings on merit and liberty can be granted to the complainant to agitate his matter before the Civil Court or any other competent Court.
10. Sequel to the above, we accept both the appeals. The impugned order is set-aside. Complaint filed by the complainant is dismissed on the ground that the complainant is not a consumer as defined under the CP Act without prejudice to the right of the complainant to agitate his matter before the Civil Court or any other competent Forum to agitate the matter in question.
11. The appellant/OP No. 1 in F.A. No. 848 of 2016 had deposited an amount of Rs. 25,000/- and Rs. 1,00,000/- with this Commission in the appeal. These amounts with interest accrued thereon, if any, be remitted by the registry to the appellant/OP No. 1 by way of a crossed cheque/demand draft after the expiry of 90 days, from the despatch of the order to the parties; subject to stay, if any, by the higher Fora/Court.
12. The appellant/OP No. 2 in F.A. No. 851 of 2016 had deposited an amount of Rs. 25,000/- and Rs. 50,000/- with this Commission in the appeal. These amounts with interest accrued thereon, if any, be remitted by the registry to the appellant/OP First Appeal No. 848 of 2016 12 No. 2 by way of a crossed cheque/demand draft after the expiry of 90 days, from the despatch of the order to the parties; subject to stay, if any, by the higher Fora/Court.
13. The appeals could not be decided within the statutory period due to heavy pendency of Court cases.
14. Order be communicated to the parties as per rules.
15. Copy of this order be placed on F.A. No. 851 of 2016.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (GURCHARAN SINGH SARAN) JUDICIAL MEMBER July 11, 2017.
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