Haryana

Panchkula

CC/493/2021

KULDIP GARG. - Complainant(s)

Versus

BAULI INDIA BAKES & SWEETS PVT.LTD. - Opp.Party(s)

NARESH TUNDWAL.

04 Nov 2024

ORDER

        BEFORE THE DISTRICT CONSUMER DISSPUTES REDRESSAL           COMMISSION,  PANCHKULA                     

               

Consumer Complaint No	:	493 of 2021
Date of Institution	:	01.12.2021
Date of Decision	:	04.11.2024

 

 

Kuldip Garg son of Shri B.R.Garg, C/o Shri Balaji Trading House, Shop No.124, Sector-16, Panchkula.

 

                                                                           ….Complainant

Versus

1.     Bauli India Bakes & Sweets Pvt. Ltd. G-146-1, MIDC, Baramati, Pune-413133, Maharashtra(India) through its Managing Director.

2.     Managing Director, Bauli India Bakes & Sweets Pvt. Ltd. G-146/1,       MIDC, Baramati, Pune-413133, Maharashtra(India).

3.     Bauli India Bakes & Sweets Pvt. Ltd. Khasra No.716, C/o Arora and Wadhwa, Associates Near Gupta Dharam Kanta, 110036         Alipur Delhi, through its Authorised representative.  

4.     Parminder Sharma, resident of House No.1471, Sector-7, Kurukshetra(Haryana).

5.     Ankit Sharma son of Shri Anil Kumar Sharma, resident of Sunder       Nagar, Gali No.6/7, First Crossing Abohar, Punjab at present      residing at Madhuban Homes, Shiva Enclave, First Floor, Flat No.8,       Patiala Road, Zirakpur, Punjab.  

                                                                                     ….Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019

 

Before:              Sh.Satpal, President

                        Dr.Sushma Garg, Member

                        Dr.Suman Singh, Member

                       

 

For the Parties:   Complainant in person alongwith Sh. Mohinder Singh, Advocate.  

                        Sh. Vivek Mohan Sharma, Advocate for OPs No.1 to 3.

                        None for OP No.4.

                        Defence of OP No.5 struck off vide order dated                                       30.05.2022.               

       

ORDER

(Satpal, President)

1.             The brief facts, as alleged in the present complaint, are, that Sh. Kuldip Garg, proprietor of Shri Balaji Trading House, Shop No.124, Sector-16, Panchkula, was contacted by Sh. Parminder Sharma and Sh. Ankit Shrma, opposite parties No.4 & 5(hereinafter referred to as OPs No.4 & 5) on behalf of opposite party no.1(hereinafter referred to as OP No.1) for doing the business with OP No.1 as super stockiest and on the basis of their representation a sum of Rs.8,00,000/- was invested by the complainant with OPs No.1 to 3, who supplied the material worth Rs.8.99 lacs to him on payment made by him(the complainant) and out of the said material, he(the complainant) sold the material of Rs.3.0 lacs  approximate in the open market on his own efforts; the unsold material remained lying with the complainant and he was making earnest efforts to sell the same in the open market at his level best. However, the OPs No.1 to 3’s representatives, namely, Sh.Ankit and Sh.Parminder Sharma taken back the material worth Rs.2.5 Lacs approximate for sending the same to their different dealers in Punjab under the assurance that the material for the same value would be sent to the complainant by the OP company later on, but neither any material of the said value was sent to him(the complainant) by the OPs nor any payment of said value was made by the Ops. It is averred that the OPs No.4 & 5 were informed that the material as was supplied  by the OPs was not sold in the open market despite the best efforts made by the complainant and it was clearly conveyed to them that the material was of perishable nature and the expiry of the same was approaching nearer. It is stated that the Ops No.4 & 5 on behalf of the OPs No.1 to 3 assured the complainant that the remaining material, which could not be sold in open market would either be replaced or the payment in lieu of the same would be made by the Ops to the complainant. It is stated that some of the material lying with the complainant could not be sold despite best efforts made by the complainant and thus, the same had expired. The OPs No.4 & 5 were requested several times to settle the account and refund the balance amount of Rs.5,00,000/- along with interest but they avoided the request of the complainant on one pretext or the other. It is stated that the Ops were requested several times telephonically as well as through emails to refund the balance amount and in response thereto,  the OP’s representative had agreed to refund the amount of Rs.4,40,000/- subject to the giving of no dues certificate(NDC) by the complainant to the OPs. It is stated that the imposition of the condition by the Ops i.e. the giving of no dues certificate was illegal and the same was not binding upon the complainant. A legal notice dated 15.10.2020 was sent to the Ops through registered notice seeking refund of balance amount of Rs.5,00,000-/ but to no avail. Due to the act and conduct of the OPs, the complainant has suffered mental agony, harassment and financial loss; hence, the present complaint.

2.             Upon notice, the OPs No.1 to 3 appeared through their counsel and filed the  written statement by raising preliminary objections therein that no cause of action has accrued in favour of the complainant and against the OPs No.1 to 3; the intricate and complicated questions of law and facts are involved in the adjudication of the present complaint, wherein elaborate oral and documentary evidence in the shape of examination and cross examination witnesses etc. would be required which is not feasible in the summary procedure being adopted in the Consumer Protection Act and thus, the complaint is liable to be dismissed; there is no relationship of consumer and service provider i.e. OPs No.1 to 3 between the complainant and the OPs No.1 to 3.

                On merits, it is submitted that the complainant does not fall under the category of consumer as the Ops had engaged the firm of the complainant as their distributor for the sale of goods in the State of Punjab and Delhi. It is stated that as per agreed terms, the complainant was obliged to furnish the amount of Rs.8,00,000/- to the Ops for distribution to the customers and retailers  in the Punjab and Delhi region thus, as per the admissions of the complainant, the complainant cannot be termed as consumer and the complaint filed by the complainant is not legally maintainable. It is denied that the representative of OP’s No.1 to 3 had ever approached the complainant for doing business with OPs No.1 to 3. It is submitted that the complainant had himself approached  the OPs No.1 to 3 and expressed his keen intention and willingness to start  business with the Ops as their distributor for the sale of companies goods in the Punjab and Delhi region and that as per the agreed terms, the complainant  was required to deposit an amount of Rs.8,00,000/- with the Ops towards the goods supplied by the OPs to the complainant for distribution/sale of material goods to the customer and retailers in Punjab and Delhi region. It is submitted that the complainant had invested an amount of Rs. 8,00,000/- with the OPs for earning profit out of resale of the goods  purchased from the OPs on concessional rate being the distributor of the OPs, thus, the complainant cannot be termed as consumer as defined  in the Consumer Protection Act, 2019. It is stated that the Ops had taken  back all the goods lying with the complainant, which the complainant  could not sell for the reasons best known to him and which had reached the expiry period, such goods, were taken back by the OPs on 23.01.2019 and on 17.04.2019. It is submitted that the complainant had wrongly raised the invoice for the payment of sum of Rs.4,98,817/-  from the OPs but the correctness of the said claim was disputed by the Ops on the ground that the extra expenses incurred by the complainant had not been  got preapproved from them(OPs). It is stated that the Ops cannot be held liable for default of any payments made by the retailers to whom the complainant had sold the product. The Ops vide their reply to the legal notice dated 15.10.2020, had conveyed their willingness to settle the accounts with the complainant’s firm and offered it to remit a sum of Rs.4,35,353/- but the complainant did not accept the amount and preferred to initiate  the present litigation against the OPs. The complainant cannot be allowed to raise the dispute before the Commission and the only remedy available with the complainant is to approach the civil court/appropriate court of law for the rendition of accounts. It is denied that the OP’s representative ever agreed to refund the amount of Rs.4,40,000/- as stated by the complainant. It is submitted that the complainant had raised an invoice for the payment of sum of Rs.4,98,817/- by the OPs stating that the complainant had incurred additional cost by way of third party expenses amounting to Rs.14,050/- for the spring Festival of HUDA Panchkula and labour charges of sum of Rs.7,000/- and also claiming amount for default in payment made by the purchaser of the goods, namely (1) Bathla Traders Ludhiana (2) J.B.Manga Ram, Pathankot and (3) Rattan agency, Ismailabad to the complainant for a sum of Rs.42,414/- but the OPs disputed the correctness of claim submitted  by the complainant. It is stated that the OPs had earned niche in the market and did not want to spoil their business relations with their distributor in any circumstances and considering this factor on priority, the Ops had offered to remit Rs.4,35,353/- to the complainant firm but the complainant did not accept the offer and now under the changed circumstances, the OPs have reconciled  their accounts. Rest of the allegations alleged by the complainant has been denied and it has been prayed that there is no deficiency in service on the part of the OPs No.1 to 3 and as such, the complaint is liable to be dismissed.

                Upon notice, the OP No.4 appeared through their counsel and filing written statement by raising preliminary objections therein that    complaint is not maintainable qua the OP No.4 in the present form; no cause of action has accrued in favour of the complainant and against the OP No.4; the complainant is estopped by his own conduct from filing the present complaint and is also bad for mis-joinder and non-joinder of necessary parties; the Consumer Commission at Panchkula has got  no jurisdiction  to entertain  and try the present complaint. The dispute alleged by the complainant with the OPs pertains to the business transactions and as such the transactions being of commercial nature. It is submitted that the OP No.4 was working with the OP No.1 as area sales manager and had resigned the company on 04.04.2020 and accordingly also handed over the charge to the company. The complainant was having the business transactions directly with the Ops No.1 to 3. It is stated that the OP No.4 is not having any direct transaction with the complainant. It stated that the OP No.4 never made any kind of alleged assurance mentioned in the complaint and never gave any assurance for any kind of settlement of account and to refund any kind of alleged balance. The OP No.4 never acted personally but rather as an agent/employee of the OPs No.1 to 5 and in case, the Commission comes to the conclusion that the Ops are having any liability towards the complainant, even then only the OPs No.1 to 3 would be made liable. Even the Hon’ble SC in plethora of cases has ruled that an agent has no liability and only principal can be made liable. 

                On merits, the pleas and assertions made in the preliminary objections have been reiterated and it has been prayed that there is no deficiency in service on the part of the OP No.4; as such, the present complaint is liable to be dismissed.

                Upon notice, the OP No.5 has appeared in person to contest the complaint; but he did not file the written statement despite availing several opportunities including the last opportunity. Therefore, the defence of OP No.5 was struck off by this Commission, vide its order dated 30.05.2022.              

3.             To prove the case, the learned counsel for the complainant has tendered affidavit as Annexure C-A along with documents Annexure C-1 to C-6 in evidence and closed the evidence by making a separate statement. On the other hand, the learned counsel for the Ops No.1 to 3 has tendered affidavit as Annexure R-1/A along with documents Annexure R-1/1 in evidence and closed the evidence. The learned counsel for the Op No.4 has tendered affidavit as Annexure R-4/A along with documents Annexure R-4/1 to R-4/3 in evidence and closed the evidence.     

4.             We have heard the complainant and the learned counsels for OPs No.1 to 3 & OP No.4 and gone through the entire record available on the file including written argument filed by the complainant, OPs No.1 to 3 minutely and carefully.

5.             During arguments, the complainant has reiterated the averments as made in the complaint as also in his affidavit(Annexure C-A) and contended that the OPs had supplied  the goods/materials to him amounting to Rs.8.99 lacs, out of which, the material amounting to Rs.3 lacs was sold by him in the open market and the goods amounting to Rs.2.50 lacs were taken back by the OPs for sending the same to their different dealers in Punjab and Delhi. It was argued that the Ops had agreed vide email dated 26.11.2019(Annexure C-4) to refund an amount of  Rs.4,44,000/- in lieu of the value of the goods as taken back by them as well as the  value of the remaining goods lying with him. Concluding the arguments, the complainant contended that the Ops had been deficient and adopted unfair trade practice, while not refunding the amount of Rs.4,40,000/- along with interest as agreed by them vide email dated 26.11.2019(Annexure C-4) as well as in the reply dated 11.01.2021 i.e. Annexure C-6  sent by the OPs to him in response to his legal notice dated 15.10.2020 i.e. Annexure C-5 and thus, the complaint is liable to be accepted by granting the relief as claimed for in the complaint.

6.             On the other hand, the OPs No.1 to 3 has raised serious objection qua the status of the complainant as consumer. The learned counsel on behalf of the OPs No.1 to 3, during arguments, while reiterating the averments as made in the written statement as also in Affidavit(Annexure R-1/A) contended that the complainant had invested a sum of Rs.8,00,000/- for doing business with the Ops as super stockiest. It was argued that the goods worth Rs.8.99 lacs were delivered to the complainant for distributing and selling the same to the retailers and customers of Punjab and Delhi region and thus, the relationship between the complainant on one hand and the Ops on the other hand were based on the principle of business to business basis and not on the principle of business to consumer basis. It was vehemently argued that the complainant had made investment with the Ops for working as super stockiest and thus, he does not fall under the category of consumer as defined in Section 2(7) of the Consumer Protection Act, 2019.

7.             Since the maintainability of the present complaint is seriously disputed by the OPs No.1 to 3 on the premise that the complainant does not fall under the category of the “Consumer” as defined vide Section 2(7) of the Consumer Protection Act, it becomes necessary to look into the fact, whether, the complainant qualifies the ingredients of the definition of “consumer” as given in the Consumer Protection Act, 2019.  

8.             The complainant claiming himself as “consumer” has argued that he is the sole proprietor of Shri Balaji Trading House, Shop No.124, Sector-16, Panchkula and running his business for earning his livelihood by way of self employment. It was argued that a sum of Rs.8 lacs was invested by him with the OPs No.1 to 3 so as to engage himself in business transactions with the OPs No.1 to 3 and thus, he is squarely covered under the category of “consumer” as defined in Section 2(7) of the Consumer Protection Act, 2019. In this regard, the complainant invited our attention towards the “explanation” appended with Section 2(7) of the Consumer Protection Act, wherein a person doing his business for the purpose of earning his livelihood by means of self-employment is excluded from the category of “commercial purpose”.

9.             The term “consumer” is defined in Section 2(7) of the Consumer Protection Act, which for the sake and clarity is reproduced as under:-

1. Consumer means any person, who 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.
2. Hires or avails of any service 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 service  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 service for any commercial purpose.

 

          Explanation- For the purposes of this clause:-

1. The expression “commercial purpose” does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment.

10.            As per definition of consumer as given in Section 2(7), a person, who buys goods for consideration is excluded from the category of consumer in the following eventualities:-

1.  When such person buys the goods for resale.
2. When such person buys goods for commercial purposes.

11.            It is also relevant to mention here that the term, namely, “resale” has been placed in the earlier part of the definition whereas the phrase i.e. “for any commercial purpose” has been placed in the later part of the definition. It is, thus, obvious that the person who buys goods for “resale” has expressly been excluded from the definition of consumer.

12.            Pertinently, the shelter/protection vide “explanation” as appended below the Section 2(7)(ii) of the Consumer Protection Act, 2019, is available only to a person, who buys  the goods and uses the same exclusively for the purpose of earning his livelihood by means of self- employment but it is not available to such persons, who buys goods for resale. In fact, the explanation covers such person, who purchases some vehicle or machinery or goods and after operation and usage of the same, he earns his livelihood by way of self employment. 

13.            Now, we advert to the facts of present case and find that the complainant had invested an amount of Rs. 8,00,000/- with the OPs No.1 to 3 in order to engage himself in the capacity of “super stockiest” with the OPs No.1 to 3 in business related activities. It is also an admitted factual position that the goods as received by the complainant, in the capacity of “super stockiest”, from the OPs No.1 to 3 were to be distributed/ sold to the retailers in the region of Delhi and Punjab. In the present case, the goods i.e. eatable items were purchased by the complainant at concessional rate from the OPs No.1 to 3 as super stockiest for onward sale of those items in the area of Punjab and Delhi; thus, the complainant working as “super stockiest” cannot draw any benefit out of the exception as provided vide explanation appended with Section 2(7) of the Consumer Protection Act, 2019.         

14.            The issue qua the status of a person as consumer was dealt with at length by the Hon’ble Apex Court in case titled as Laxmi Engineering Works Vs. P.S.G. Industrial Institute reported in 1995 AIR 1428, wherein  in para no.11, it  was observed as under:-

          It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz. “uses them by himself”, “exclusively for the purpose of earning his livelihood” and “by means of self-employment” make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself, by employing himself for earning his livelihood.”……….

15.            Keeping in view the factual discussion as well as legal position discussed above, we have reached at the conclusion that the complainant is not covered under the category of “consumer” as defined under Section 2(1)(d) of the Consumer Protection Act, 1986/Section 2(7) of the Consumer Protection Act, 2019; Therefore, the present complaint is not maintainable under the Consumer Protection Act, 2019. The observations made by the Hon’ble National Commission in the case of M/s Freight System (India) Private Limited (supra) in para 16 and 19 of the said order are very relevant, which are reproduced as under:-

16.     The complainant Co.’s case, that it is a ‘consumer’, fails on its facts and on the law. It may however also be observed that anyhow allowing anyone into consumer protection for has adverse ramifications, including inter alia:

a)       evasion of court fee in civil courts; and

b)       eroding into the time and resources of consumer protection fora, which could otherwise be better devoted to the ordinary general consumers, who straightaway fall, ex facie, in the definition of  ‘consumer’ (without having  to    write a treatise to enable their anyhow entry into the fora).

19.     It is made explicit that the merit of the dispute between the opposing sides has not been entered into. The complainant Co. is free to agitate its case in any appropriate forum/court as per the law.

16.            It is well settled legal proposition of law that the merits of the case are not required to be looked into, if the complaint is found not maintainable under the Consumer Protection Act, 2019. As per discussion made above, the present complaint has been found not maintainable; thus, the same is hereby dismissed being not maintainable. However, in the interest of justice, we deem it appropriate to grant the liberty to the complainant to file a fresh complaint on the same cause of action in the appropriate Tribunal/Authority/Court as per law, if so advised. The complainant shall be at liberty to file an application before the concerned Court/ Authority/Tribunal under Section 14 of the limitation Act for excluding the period spent before this Commission for the purposes of computation of limitation in terms and observations made by the Hon’ble Apex Court in the case of “Luxmi Engineering Works Vs. PSG Industrial Institute 1995(III) SCC P.583”. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on: 04.11.2024

 

 

 

 

        Dr.Suman Singh            Dr.Sushma Garg                 Satpal

                Member                     Member                     President

 

Note: Each and every page of this order has been duly signed by me.

 

                                                   Satpal

                                             President