Varinder Pal Singh Saini, Member
1 The complainant has filed the present complaint by invoking the provisions of Consumer Protection Act under Section 34, 35 and 36 against the opposite parties on the allegations that the complainant is running a cattle feed shop at village Gagobuha Tehsil Jhabal District Tarn Taran under the name and style of ‘Dhan Dhan Baba Budha Ji Feed Store village Gagobuha’ and the complainant Amarjit Singh is its sole proprietor and this is sole livelihood of the complainant and the whole of the family members of Amarjit Singh are dependent upon the income of above said shop. The opposite party No. 1 is doing the business of selling the cattle feed at Bathinda and the opposite party No. 2 is its salesman. The complainant has purchased cattle feed Rama 8000 Pellot HSN 2309 25 Qtls 50 bags and has paid Rs. 56250/- to the opposite party and made the payment of Rs. 55,750/- through NEFT of Canara Bank branch Bhikhiwind on 21.2.2019 in the account of opposite party No. 1 and the cattle feed was supplied to the complainant on 23.2.2019 whereas billing of cattle feed was given on 25.2.2019 to the complainant. The opposite party No. 1 is producer of cattle feed and opposite party No. 2 is salesman of the opposite party No. 1. The opposite parties have supplied Sub Standard Cattle feed to the complainant and the complainant has sold the cattle feed supplied by the opposite parties to his customers and the customers of the complainants have returned the above said cattle feed with the complaint that the above said cattle feed supplied by the opposite parties to the complainant is giving odorous smell and the cattle are not eating the above said cattle feed. Immediately after receiving the complaint from the customers, the complainant has requested the opposite parties to get back cattle feed Rama 8000 sent by opposite parties to the complainant and also told the opposite parties that the said cattle feed is smelling odorous and the cattles are not eating that cattle feed and the opposite parties have not received back the cattle feed up till today. But the opposite parties are putting off the matter under one pretext the other. The complainant has taken one shop on rent for storing the above said cattle feed in village Gagobuha at the rate of Rs. 2,000/- per month and is paying the rent of Rs. 2,000/- per month to the land lord of shop and the complainant has paid total rent of Rs. 50,000/- due to the fault on the part of the opposite parties. The complainant has requested the opposite parties many a times either to replace the above said substandard cattle feed Rama 8000 with Standard Cattle Feed or to return the amount of Rs. 55,750/- to the complainant and the complainant has also requested the opposite parties to give Rs. 50,000/- as rent of shop to the complainant which the complainant has paid due to fault on the part of the opposite parties. As per orders of the Hon’ble Supreme Court of India the period of limitation for any suit, appeal, application or proceedings, the period from 25.3.2020 till 14.3.2021 shall stand excluded. Consequently, the balance period of limitation remaining as on 15.3.2020, if any shall become available with effect from 15.3.2021. As such as per order of the Hon’ble Supreme Court of India the present complaint is well within limitation. The complainant has prayed that the complaint maybe accepted with costs. The opposite parties may be directed
- To replace the Cattle Feed Rama 8000 Pellot HSN 2309 with Standard Cattle feed or to return Rs. 55,750/- to the complainant
- To pay Rs. 50,000/- i.e. rent given by the complainant to the land lord for storing the above said cattle feed w.e.f. 23.2.2019 up to date.
- To pay Rs. 50,000/- as compensation and damages.
- To pay Rs. 25,000/- as litigation expenses to the complainant.
Alongwith the complaint, the complainant has placed on record his affidavit Ex. C-1, Self attested copy of statement of account of complainant Ex. C-2, Self attested copy of Bill issued by the Opposite party No. 1 Ex. C-3, Self attested copy of Bilty dated 23.2.2019 Ex. C-4, Self attested copy of order dated 12.3.2021 passed by the Hon’ble Supreme Court of India Ex. C-5, Affidavit of Amritpal Singh Ex. C-6, Affidavit of Angrej Singh Ex. C-7, Affidavit of Gurpreet Singh Ex. C-8.
2 Notice of this complaint was sent to the opposite parties and opposite party No. 1 appeared through counsel and filed written version by interalia pleadings that the complaint is not maintainable in its present form as such the same is liable to be dismissed. The complainant has no locus standi or cause of action to file the present complaint. The complainant does not come within the definition of Consumer Under Section 2(1)(d) as the complainant himself is a shopkeeper and he purchased 50 bags of Cattle feed from the opposite party No. 1 to further sell the same and to earn profit from the same i.e. for commercial purposes and does not fall under the criteria of Consumer. The complainant is estopped from filing the present complaint by its own act and conduct, admissions, omissions and acquiescence. District Consumer Disputes Redressal Commission Tarn Taran has got no territorial jurisdiction to try and decide the aforesaid complaint as the complainant had purchased the cattle feed from the opposite party No. 1 at Rama Mandi and also made payment of the same to the opposite party No. 1 at Rama Mandi i.e. within the territorial jurisdiction of Commission at Bathinda and further in Bill dated 25.2.2019, it is clearly mentioned that all disputes are subject to the Bathinda jurisdiction only and as such, the present complaint is liable to be dismissed. The complainant has not approached this commission with clean hands rather the complainant has intentionally concealed the true and material facts from this commission and has grossly twisted the facts as per his own convenience. The complaint is hopelessly time barred as the complainant purchased the cattle feed from the opposite party No. 1 on 23.2.2019 but the present complaint has been filed after more than two years from the date of purchase of the cattle feed and as such the complaint is hopelessly time barred and the order of the Hon’ble Supreme Court of India is not applicable to the facts of the present complaint. Now the opposite party No. 2 has left the job and is no more working with the opposite party No. 1 as salesman. The complainant has not disclosed about any bill number and the name of the customer/ consumer to whom the complainant sold the cattle feed and how much bags of cattle feed and has also not attached with the complaint any such copies of the bills regarding the sale of cattle feed by the complainant to any customers. The complainant also never lodged any complaint with the opposite party No. 1 and also never sent any notice to the opposite party No. 1 regarding any alleged odorous smell from the cattle feed and even the affidavits of the customers attached with the complaint, who allegedly returned the cattle feed to the complainant, are also result of manipulation and have been got prepared by the complainant with the connivance of the said persons which itself is clear from the perusal of the alleged affidavits Ex. C-6 to Ex. C-8 which are firstly on the same lines and have been got attested from one and the same person i.e. Gurmeet Kaur Oath commissioner on one and same day vide serial Nos. 1219, 1220 and 1221. Further moreover the said bills also do not find mention any reference of the bills regarding the purchase of the cattle feed by the said persons from the complainant, Brand name of the cattle feed, number of bags, date of purchase of the cattle feed and the date of return of the cattle feed and as such the alleged affidavits have no value in the eyes of law and have no evidentiary value. The opposite party No. 1 sold the cattle feed of the same Brand and same lot to different persons but never received any complaint from any concern regarding any odorous smell or regarding the quality of the cattle feed and even the complainant had also purchased the cattle feed from the opposite party No. 1 after being fully satisfied regarding the quality of the cattle feed manufactured by the opposite party No. 1 and as such the complainant made advance payment to the complainant at the time of booking of the said cattle feed as the opposite party No. 1 is manufacturing best quality and is known for its best quality. The opposite party No. 1 did not receive any alleged complaint from the complainant regarding the quality of the cattle feed and regarding any odorous smell from the cattle feed and furthermore, the complainant had purchased the cattle feed vide bill dated 23.2.2019 but the complainant has failed to explain that why the complainant kept mum for more than two years from the date of sale of the cattle feed and the opposite party No. 1 directly received notice from the District Consumer Disputes Redressal Commission, Tarn Taran. The cattle feed is perishable item and the alleged odorous smell, if any, might have developed due to the improper care of the stock by the complainant and non sale of the same in time for which the opposite party No. 1 cannot be held responsible. The opposite party No. 1 has denied the other contents of the complaint and prayed for dismissal of the same.
3 Notice of this complaint was sent to the opposite party No. 2 but no one appeared on behalf of opposite party No. 2 and consequently, the opposite party No. 2 was proceeded against exparte.
4 We have heard the Ld.counsel for the complainant and opposite party No. 1 and have carefully gone through the record placed on the file.
5 Ld. counsel for the complainant contended that the complainant is running a cattle feed shop at village Gagobuha Tehsil Jhabal District Tarn Taran under the name and style of ‘Dhan Dhan Baba Budha Ji Feed Store village Gagobuha’ and the complainant Amarjit Singh is its sole proprietor and this is sole livelihood of the complainant and the whole of the family members of Amarjit Singh are dependent upon the income of above said shop. He further contended that the opposite party No. 1 is doing the business of selling the cattle feed at Bathinda and the opposite party No. 2 is its salesman. The complainant has purchased cattle feed Rama 8000 Pellot HSN 2309 25 Qtls 50 bags and has paid Rs. 56250/- to the opposite party and made the payment of Rs. 55,750/- through NEFT of Canara Bank branch Bhikhiwind on 21.2.2019 in the account of opposite party No. 1 and the cattle feed was supplied to the complainant on 23.2.2019 whereas billing of cattle feed was given on 25.2.2019 to the complainant. He further contended that the opposite party No. 1 is producer of cattle feed and opposite party No. 2 is salesman of the opposite party No. 1. The opposite parties have supplied Sub Standard Cattle feed to the complainant and the complainant has sold the cattle feed supplied by the opposite parties to his customers and the customers of the complainants have returned the above said cattle feed with the complaint that the above said cattle feed supplied by the opposite parties to the complainant is giving odorous smell and the cattle are not eating the above said cattle feed. He further contended that immediately after receiving the complaint from the customers, the complainant has requested the opposite parties to get back cattle feed Rama 8000 sent by opposite parties to the complainant and also told the opposite parties that the said cattle feed is smelling odorous and the cattles are not eating that cattle feed and the opposite parties have not received back the cattle feed up till today. But the opposite parties are putting off the matter under one pretext the other. He further contended that the complainant has taken one shop on rent for storing the above said cattle feed in village Gagobuha at the rate of Rs. 2,000/- per month and is paying the rent of Rs. 2,000/- per month to the land lord of shop and the complainant has paid total rent of Rs. 50,000/- due to the fault on the part of the opposite parties. The complainant has requested the opposite parties many a times either to replace the above said substandard cattle feed Rama 8000 with Standard Cattle Feed or to return the amount of Rs. 55,750/- to the complainant and the complainant has also requested the opposite parties to give Rs. 50,000/- as rent of shop to the complainant which the complainant has paid due to fault on the part of the opposite parties and prayed that the complaint may be allowed. In support of his version, Ld. counsel for the complainant has placed on record 2023(4) Civil court Cases 767 (S.C) titled Rohit Chaudhary & Anr Vs M/s Vipul Ltd.
6 Ld. counsel for the opposite parties contended that the complaint is not maintainable in its present form as such the same is liable to be dismissed. The complainant has no locus standi or cause of action to file the present complaint. The complainant does not come within the definition of Consumer Under Section 2(1)(d) as the complainant himself is a shopkeeper and he purchased 50 bags of Cattle feed from the opposite party No. 1 to further sell the same and to earn profit from the same i.e. for commercial purposes and does not fall under the criteria of Consumer. He further contended that District Consumer Disputes Redressal Commission Tarn Taran has got no territorial jurisdiction to try and decide the aforesaid complaint as the complainant had purchased the cattle feed from the opposite party No. 1 at Rama Mandi and also made payment of the same to the opposite party No. 1 at Rama Mandi i.e. within the territorial jurisdiction of Commission at Bathinda and further in Bill dated 25.2.2019, it is clearly mentioned that all disputes are subject to the Bathinda jurisdiction only. He further contended that the complaint is hopelessly time barred as the complainant purchased the cattle feed from the opposite party No. 1 on 23.2.2019 but the present complaint has been filed after more than two years from the date of purchase of the cattle feed and as such the complaint is hopelessly time barred and the order of the Hon’ble Supreme Court of India is not applicable to the facts of the present complaint. Now the opposite party No. 2 has left the job and is no more working with the opposite party No. 1 as salesman. The complainant has not disclosed about any bill number and the name of the customer/ consumer to whom the complainant sold the cattle feed and how much bags of cattle feed and has also not attached with the complaint any such copies of the bills regarding the sale of cattle feed by the complainant to any customers. He further contended that the complainant also never lodged any complaint with the opposite party No. 1 and also never sent any notice to the opposite party No. 1 regarding any alleged odorous smell from the cattle feed and even the affidavits of the customers attached with the complaint, who allegedly returned the cattle feed to the complainant, are also result of manipulation and have been got prepared by the complainant with the connivance of the said persons which itself is clear from the perusal of the alleged affidavits Ex. C-6 to Ex. C-8 which are firstly on the same lines and have been got attested from one and the same person i.e. Gurmeet Kaur Oath commissioner on one and same day vide serial Nos. 1219, 1220 and 1221. He further contended that the said bills also do not find mention any reference of the bills regarding the purchase of the cattle feed by the said persons from the complainant, Brand name of the cattle feed, number of bags, date of purchase of the cattle feed and the date of return of the cattle feed and as such the alleged affidavits have no value in the eyes of law and have no evidentiary value. He further contended that the opposite party No. 1 sold the cattle feed of the same Brand and same lot to different persons but never received any complaint from any concern regarding any odorous smell or regarding the quality of the cattle feed and even the complainant had also purchased the cattle feed from the opposite party No. 1 after being fully satisfied regarding the quality of the cattle feed manufactured by the opposite party No. 1 and as such the complainant made advance payment to the complainant at the time of booking of the said cattle feed as the opposite party No. 1 is manufacturing best quality and is known for its best quality. The opposite party No. 1 did not receive any complaint from the complainant regarding the quality of the cattle feed and regarding any odorous smell from the cattle feed and furthermore, the complainant had purchased the cattle feed vide bill dated 23.2.2019 but the complainant has failed to explain that why the complainant kept mum for more than two years from the date of sale of the cattle feed and the opposite party No. 1 directly received notice from the District Consumer Disputes Redressal Commission, Tarn Taran. The cattle feed is perishable item and the alleged odorous smell, if any, might have developed due to the improper care of the stock by the complainant and non-sale of the same in time for which the opposite party No. 1 cannot be held responsible and prayed for dismissal of the same.
7 We have gone through the rival contentions of Ld. counsels for the parties.
8 In the present case, the complainant has pleaded that he has purchased cattle feed from the opposite parties and the complainant also pleaded in his complaint that he sold the cattle feed supplied by the opposite parties to his customers. Now we have to observe that this complaint is maintainable before this commission or not. As per pleadings, the complainant has purchased the cattle feed for reselling the same to its customers, the complainant is shopkeeper and he purchased the cattle feed for reselling the same for monetary benefit . Said transaction falls in commercial purpose for earning profits. Complainant is not a 'consumer', as services were not hired for personal purposes by the complainant and those were hired for commercial activities only.
9 We are of this view that complainant is not proved to be a 'consumer' of the opposite party. The definition of 'consumer' has been provided under Consumer Protection Act, "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 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.
It is, thus, evident that the explanation appended with above Section of the Act makes it clear that '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.
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11 In view of above discussion, the present complaint is dismissed being not maintainable before this commission. The parties are left to bear their own costs. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Commission and due to COVID-19. Copies of the order be furnished to the parties as per rules. File is ordered to be consigned to the record room.
Announced in Open Commission
23.04.2024
