District Consumer Disputes Redressal Commission, Hooghly

PETITIONER

VS.

OPPOSITE PARTY

Complaint Case No.CC/92/2023

(Date of Filing:-31.05.2023)

1. Sri Tripto Sur of

Village:- Kola, P.O. and P.S. Magra

Dist. Hooghly, Pin:- 712148, ….Complainant

1. Himadri Das, Director, Taizu Pharmaceutical Pvt. Ltd.

BD-473, Sector-I, Salt Lake, Kolkata-700064

            Also at, AB-21, Samar Pally, Nilambori Apartment, Flat No. 301

            3^rd Floor, Kolkata-700102

                                                    AND   

            Also at, AD-136/H, Krishnapur, Samar Dey Sarani, Kolkata-700102

….Opposite party

MR. DEBASISH BANDYOPADHYAY, PRESIDENT

             MR. DEBASIS BHATTACHARYA, MEMBER

            Mrs. BABITA CHOUDHURY, MEMBER

Final Order/Judgment

DEBASIS BHATTACHARYA:- PRESIDING MEMBER

 The instant case filed under section 35(1)(a) of the Consumer Protection Act 2019 emanates from the grievances of the complainant arising out of reluctance and eventual refusal of the OP pharmaceutical Company to make refund of the deposit of Rs.6,00,000/- previously made by the Complainant while being appointed a super stockiest of the said pharmaceutical Company.

Brief facts of the case:

The OP reportedly is a pharmaceutical Company dealing in pharmaceutical products.

Having been allured by the initial assurances of the OP of minimum rate, hassle free business and minimum paper work, the Complainant became inclined to accept the proposal of being a ‘Master Franchise’ of the OP Pharmaceutical Company.

However the Complainant claims that the business owned by him is the only source of earning his livelihood.

Consequent upon the acceptance of the proposal by the Complainant, a Master Franchise agreement was executed on 01.10.2021 between the Complainant and the Opposite Party.

Following the terms and conditions of the agreement the Complainant had to make an initial deposit of Rs.6,00,000/- with the OP which was refundable in case of the termination of the agreement, after full and final settlement of outstanding amounts if any payable to the OP at the time of such termination.

However, after execution of the agreement, while interacting with the OP, the Complainant in course of time found that no profit was being generated from the business because of ‘negligence on the OP’s part’. However feeling discouraged, the Complainant took the decision of quitting from the agreement. Accordingly a written notice is claimed to have been dispatched to the OP through e-mail.

The Complainant further claims to have made full and final settlement with the OP by sending a credit note so far as the remaining stock was concerned.

At this stage, the Complainant approached to the OP for refund of the amount of Rs.6,00,000/- deposited by him at the time of execution of the agreement.

Finding indifference on the OP’s part a legal notice was sent to the OP on 21.03.2023. However no reply to the legal notice was received by the Complainant.

The acts of the OP Pharmaceutical Company reportedly caused mental trauma, physical distress and financial loss.

Treating this as gross deficiency of service and finding the OP as guilty of unfair trade practice the Complainant approaches to this Commission seeking direction upon the opposite party to pay back the refundable deposit of Rs.6,00,000/-, to pay Rs.1,50,000/- ‘for unfair trade practice’, to pay Rs.50,000/- as compensation for causing worries and anxieties, to pay Rs.50,000/- as litigation cost and other relief/reliefs entitled by the Complainant as per law.

The Complainant along with his complaint petition has annexed copies of acknowledgement letter of the OP against his payment of Rs.6,00,000/- made to the OP by cheques, copy of Master Franchise agreement, mail sent to the OP dtd.13.01.2022, a purported credit note, legal notice sent to the OP and certain whatsapp messages sent to the OP.

Evidence on affidavit and brief notes of argument are almost replicas of the Complaint petition.

This is to be mentioned that in spite of proper service of notice the OP did not make their appearance at any stage of the proceedings of the case. Thus the case ran ex parte against the OP.

The Complainant in the instant case availed of some sort of service for a consideration. But, the issue whether the Complainant is a consumer being a tricky question, will be discussed in the concluding part of the order.

The Complainant at the time of institution of the Complaint was a resident within the district of Hooghly and the value of the services paid as consideration by the Complainant does not exceed fifty lakhs rupees.

Hence no question can be raised in the matter of territorial as well as pecuniary jurisdiction of the Commission in the instant case.

Now whether there was any deficiency of service and whether the Complainant is entitled to any relief may be discussed only after deciding whether the Complainant is a consumer or not.

Decision with reason

Materials on records are perused.

In the instant case the key document which should be focused is the Master Franchise Agreement executed on 01.10.2021.

As regards the Price and Payment terms incorporated in the agreement, ‘the Master Franchise shall keep with Company continuing security deposit of Rs.6,00,000/-which is refundable at the time of termination of the agreement, after full and final settlement of all outstanding of Company’.

Again, in terms of Para-V of Article-IV-‘Duration of agreement’, as incorporated in the agreement, the agreement may be terminated by either party by giving 45 days written notice to the other party.

On perusal of the Complaint petition along with the annexure, the Commission was of the view that the petition suffered from insufficient documentation and questionable documentation.

Consequently, the petitioner was asked to produce money receipt/corresponding bank statement in respect of the security deposit of Rs.6,00,000/-.

Though the payment of security deposit of Rs.6,00,000/- is claimed to have been made on 02.08.2021, the agreement dtd.01.10.2021 does not appear to have admitted the said payment. The petitioner was asked to offer clarification accordingly.

The Complainant was further asked to furnish the details of outstanding amount payable to the OP as on the date on which the Complainant expressed his intention to come out of the agreement and the manner in which the outstanding amount was settled.

Apart from this, the Complainant was also required to furnish exhaustive details as to how the stock lying with him was sent back to the OP and how the full and final settlement was made. The supporting documents related to the full and final settlement were expected to be furnished before the Commission.

Along with the complaint petition the petitioner has submitted an ‘Acknowledgement letter’ dtd.02.08.2021 which is claimed to be a money receipt against a payment of Rs.6,00,000/-. Firstly, the payment appears to have been made prior to execution of the agreement. Secondly the purported money receipt is devoid of any revenue stamp in spite of being a high value transaction.

The purported agreement dtd 01.10.2021 is not even notarized and also devoid of any witness. Not only that but also the agreement nowhere mentions the payment of Rs.6,00,000/ claimed to have been made by the Complainant to the OP prior to the execution of the agreement. No satisfactory clarification in this regard has been offered by the Complainant.

The details of outstanding amount payable to the OP or adjustable with the security deposit as on the date of on which the Complainant expressed his intention to come out of the agreement and the manner in which the outstanding amount was settled in terms of money could not be furnished.

Apart from an unstamped purported credit note, not even constructed in the letter head of the business, no supporting documents viz. delivery challan, consignment note etc. could not be produced in respect of dispatch of the stock lying with him to the OP. Thus the authenticity of the credit note is questionable.

Now comes up the question whether the Complainant is a consumer.

On examination of the complaint petition it prima facie appears that the transactions involved and the services availed by the Complainant were for commercial purpose.

In the first line of the notarized and thoroughly typed complaint petition there has been erasing by whitener and the term ‘and with this livelihood’ has been manually inserted. Again, in the fifteenth line of the petition the term ‘for livelihood’ has been inserted manually.

Firstly, the insertions have not been authenticated by the concerned notary and secondly the petitioner has failed to file any corroborating evidence to substantiate that the business owned by him was the sole source of earning his livelihood.

In view of the above the Commission is of the opinion that the Complainant in this case cannot be regarded as a consumer.

Moreover the complaint petition grossly suffers from insufficient and questionable documentation.

 Hence, it is

                                                ORDERED

that the complaint case no.92/2023 be and the same is dismissed ex parte.  However there is no order as to costs. Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgements/sent by ordinary post for information and necessary action.