NCDRC

NCDRC

RP/2445/2009

NARANJA SAHAKAR SAKKARE KARKHANE - Complainant(s)

Versus

APPARAO - Opp.Party(s)

MR. SUDHEER KULSHRESHTHA

20 Jan 2010

ORDER

Date of Filing: 10 Jul 2009

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSIONNEW DELHIREVISION PETITION NO. No. RP/2445/2009
(Against the Order dated 20/03/2009 in Appeal No. 2921/2008 of the State Commission Karnataka)
1. NARANJA SAHAKAR SAKKARE KARKHANEManaging Director, Niyamitha EmampurBidar-585401 ...........Appellant(s)

Vs.
1. APPARAOS/o beerappa Sultanpure, R/o Kherda(B), Basavakalyan Taluk, Bidar-585401Karnataka ...........Respondent(s)

BEFORE:
HON'BLE MR. JUSTICE ASHOK BHAN ,PRESIDENTHON'BLE MR. B.K. TAIMNI ,MEMBER
For the Appellant :MR. SUDHEER KULSHRESHTHA
For the Respondent :NEMO

Dated : 20 Jan 2010
ORDER

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Since these two revision petitions raise a common point of law, hence we go on to dispose off these two revision petitions through a common order. We take the facts from Revision Petition No. 2444 of 2009. The case of the complainant is that he is owner of a certain piece of land and is growing sugarcane in his land. He is also shareholder of the petitioner sugar factory. It is his case that as per arrangement between the parties, the petitioner sugar factory was obliged to purchase the sugarcane grown by the respondent / complainant, but during the year 2007, the sugarcane was not purchased by the petitioner causing loss to the complainant. It is in these circumstances, a complaint was filed before the District Forum, who after hearing the parties, directed the petitioner to pay Rs.1,44,000/- alongwith interest @9% p.a. Cost of Rs.5,000/- was also imposed. All these payments were to be made within a period of one month failing which it was to carry interest @6% p.a. Aggrieved by the order(s) passed by the District Forum, petitioner filed two separate appeals before the State Commission against the two respondents before us. The State Commission through a common and a very cryptic and non-speaking order, dismissed the appeals, hence these revision petitions before us. Upon issue of notice, none appeared on behalf of the respondent in RP No. 2444 / 2009, hence he is proceeded exparté. We heard the Ld. Counsel for the petitioner and the respondent in RP No. 2445 / 2009. The basic facts are not disputed that the respondents are shareholders of the Petitioner factory besides being cane growers as well. It is also admitted that all the sugarcane produced by the respondents / complainants could not be purchased by the petitioner factory as there was excess production because of good natural conditions. From the very beginning it has been the case of the petitioner that this will not amount to a consumer dispute for which he relies upon the judgement of this Commission in the case of “The Chairman, Hutatma Kisan Ahir Sahakari Sakhar Karkhana Vs. Anandrao Nivrutti Khot [2002 NCJ 291 (NC)]”, in which we had held that a complaint arising out of the arrangement between the cane grower and the sugar factory will not come within the ambit of consumer dispute. On the other hand, counsel for the respondent / complainant has relied upon the judgement of this Commission in “Smt. Kalawati & Ors. Vs. M/s. United Vaishya Cooperative Thrift & Credit Society {Revision Petition No. 823 to 826 of 2001 decided on 26.09.01}”. He also relies upon the judgement of this Commission in the case of “Malaprabha Co-op. Sugar Factory Ltd. Vs. Sri Manik & Ors. [II (2007) CPJ 276 (NC)]”, in which this Commission has held this to be come within the ambit of a consumer dispute. Counsel for the respondent also drawn our attention to para 15 of the appeal filed by the petitioner sugar factory, which reads as under:- “15. The face value of each share be Rs.500/-. A sum upto Rs.500/- shall be payable on application. (2) The Board of Directors may determine a fixed relation between the acreage of sugarcane grown by a producer member to be crushed by the karkhane and the number of shares held by him. The Board may thereafter call on a producer member to subscribe to additional share or shares necessary to make up the total number of shares required according to this relation. It will also determine the manner in which these additional shares shall be subscribed to and will have the power to recover the amounts necessary for the purpose from out of the deposits made by the member under Byelaw No. 43. The Board shall in determining the manner of subscription etc. to additional shares, allow a time limit upto three years from the date of announcement by it of the relation indicated above. The Board of Directors shall fix the quantity of sugarcane to be supplied by each member. (3) No member other than State Government, State Warehousing Corporation or any cooperative society shall hold shares worth more than such portion of the total share capital of the society not exceeding 1/5th thereof or have or claim any interest in the shares of the society exceeding Rs. Two lakhs whichever is less……” We have carefully gone through the judgements relied upon by the Counsel for the respondent / complainant. As far as the judgement in the case of “Smt. Kalawati & Ors. Vs. M/s. United Vaishya Cooperative Thrift & Credit Society (supra)” is concerned, this Commission only decided the case in respect of cooperative societies coming within the ambit of the Consumer Protection Act, 1986 or not, and that was based in the facts and circumstances of the case, which in our view are not applicable in the facts and circumstances of the case before us. As far as the judgement in the case of “Malaprabha Co-op. Sugar Factory Ltd. Vs. Sri Manik & Ors. [supra]” is concerned, it will not help the case of the respondent / complainant as the facts are entirely different, for the simple reason that in the cited judgement, the facts were related to the sugar factory not providing expert service in planning, organising and regulating, cultivation for sugarcane by producer members. The crucial point in this case was that the factory has a self-imposed obligation to lift at least 40 tons per share, of sugarcane crop. There is no such self-imposed obligation in this case, hence, this will not help the case. We have also gone through the para 15 of the appeals filed by the petitioner sugar factory being relied upon by the respondent / complainant. This does not help the case of the respondent for the simple reason that this deals with the subscription to shares / additional shares. In the given facts and circumstances of the case, it is not in dispute that the petitioner is a cooperative sugar factory and respondents / complainants are one of the shareholders. Para 15 of the appeal relied upon by the complainant are limited to the issue related to shares. The question before us is whether in terms of section 2(1)(d)(i) and (ii) of Consumer Protection Act, 1986, the complainant will fall within the ambit of a ‘Consumer’ or not? As per section 2(1)(d)(i), Petitioner is not a seller of goods, if anything, he is buyer of goods, hence, seller of goods has no locus to file a complaint under section 2(1)(d)(i). As far as section 2(1)(d)(ii) is concerned, there is nothing on record to show that the complainants had hired the ‘services’ of the petitioner. As is commonly understood in such cases, arrangement is entered between the sugarcane producer and the sugar factory to buy / sell sugarcane at prices determined by the State, a premium on which could be given by the sugar factory keeping in view its own need and requirements. When we see the definition of ‘service’, even though, we take a liberal view of the service, we are not satisfied that the petitioner could be said to have hired the services of the respondent / complainant. In the aforementioned circumstances, and relying upon the judgement in the case of “The Chairman, Hutatma Kisan Ahir Sahakari Sakhar Karkhana Vs. Anandrao Nivrutti Khot [supra]”, we are clearly of the view that the dispute will amount to a consumer dispute, hence will not come within the ambit of the Consumer Protection Act, 1986. In view of above, the orders passed by both the lower fora are set aside and the complaints are dismissed. However, the Respondent shall be free to seek remedy before any appropriate forum, if so advised, under appropriate law for which the time spent before the Consumer Fora can be sought to be exempted under Section 14 of the Limitation Act in the light of the Judgement of the Hon’ble Supreme Court in the case of “Laxmi Engineering Works Vs. P.S.G. Industrial Institute {(1995) 3 SCC 583}.”



......................JASHOK BHANPRESIDENT
......................B.K. TAIMNIMEMBER