BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BHIWANI
Complaint Case No. 191 of 2018
Date of Institution: 21.12.2018
Date of Decision: 13.06.2022
Suresh Kumar owner/signatory of Nisha Beauty Collection, Gaushala Market, Near Hanuman Mandir, Bhiwani (Haryana).
….Complainant.
Versus
- Karan Budhiraja, C.E.O. M/s Hyporia ventures Pvt. Ltd. based at LG-08, Augusta Point, Golf Course Road, Sector-53, Gurugram, 122001.
- Ms. Surbhi, Accountant, M/s Hyporia ventures Pvt. Ltd. based at LG-08, Augusta Point, Golf Course Road, Sector-53, Gurugram, 122001.
- Vipin, M.D. M/s Hyporia ventures Pvt. Ltd. based at LG-08, Augusta Point, Golf Course Road, Sector-53, Gurugram, 122001.
- Nitin, M.D., M/s Hyporia ventures Pvt. Ltd. based at LG-08, Augusta Point, Golf Course Road, Sector-53, Gurugram, 122001.
- Chandan, Employee of M/s Hyporia ventures Pvt. Ltd. based at LG-08, Augusta Point, Golf Course Road, Sector-53, Gurugram, 122001.
…....Respondents.
COMPLAINT UNDER SECTION 12 OF
THE CONSUMER PROTECTION ACT, 1986
Before: - Sh. Vijay Singh, President.
Mrs. Harisha Mehta, Member.
Present: Sh. Rajesh Arya, Advocate for complainant .
OPs no. 1, 2 & 4 exparte.
OP no. 3 & 5 given up.
ORDER:
Suresh Kumar (hereinafter referred to as “The complainant”) has filed the present complaint under Section 12 of Consumer Protection Act, 1986 against the Opposite parties(hereinafter referred to as OP) stating that OP no. 1 met with complainant in the month of June, 2018 at his shop with the OPs no. 2 to 5 and told about his business and products and made many requests to complainant to join his business by purchasing his products by getting distributorship. It is submitted that the complainant is general shopkeeper but the OPs are very clever person and gave false assurance to the complainant that there is no problem in their products and their products are of good quality. After assurance of OPs, complainant had join OP’s business and OPs by playing fraud with complainant get six blank cheque nos. 048973 to 048978 and some blank papers, which bears the signature of complainant.
2. It is further submitted that after assurance of OPs, the complainant had desposited Rs.1,26,078/- in OP’s account no.014061900002090 via N.E.F.T. from Bank of India, situated at Ghanta Ghar Bhiwani. The complainant get complaint from his customers about bad results of OP’s products and when he made complaint to the OPs, they did not pay any heed to the complaints of complainant. The complainant visit to the office of OPs many a times in the matter and complainant wrote many letters to change or recollect the products as mentioned in respondent’s invoide no. HVPL/18-19/0052 dated 31/07/2018 and for return of his bank cheques and in these letters complainant cearly wrote down that he makes stop payment for the abovesaid cheques and pray to OPs not to produce the same before bank for clerance but all in vain.
3. It is further submitted that the OPs denied to recollect or change their products which were sent to complainant by OPs and the last date of products is till upto last month of year 2020 and also denied to return the remaining amount of complainant i.e. Rs.1,10,000/- It is further submitted that the complainant is entitled for compensation for suffered a lot of harassment, humiliation and mental agony, loss of business from the OPs. Hence, this complaint for a direction to the Ops to pay a sum of Rs.1,10,000/ (remaining amount) + 50,000/- (for causing mental agony, harassment and humiliation to the complainant) and Rs.21,000/- as litigation expenses.
4. Upon notice, the Ops/respondents 1, 2 & 4 appeared and filed the written statement contesting the present complaint. The OPs in their written statement denied the allegations of the complaint and took preliminary objections regarding suppression of material facts, maintainability, locus standi, and submitted that the complainant has not come with his clean hands and he concealed the true facts from the Hon’ble Forum.
5. It is submitted that the present complaint is not maintainable at all firstly the complainant himself is not a consumer, hence the complainant cannot approach this Hon’ble Court and secondly the complainant filed this frivolous complaint against the OPs no. 1, 2 & 4 as counter blast because the company have filed the case against the complaint under Section 138 NI Act and the same has been pending in the Hon’ble Court of Sh. Ashish Arya, JMIC, Gurugram. It is further submitted that the OP no. 5 conspired with the complainant to cheat the company and introduced complainant to the company and then complainant got the distributorship of the company after signing the distributorship agreement with the company. It is further submitted that the products are of very high quality and there is no problem with the products as such. While signing the distributorship agreement complainant had agreed upon all the terms and conditions which are mentioned in the said agreement at Clause no. 17 (iii) which clears the payment terms. There is no deficiency in service on the part of OPs and hence, the complainant is not entitled for any relief. Accordingly, dismissal of the complaint has been sought by the OPs.
6. Complainant has tendered into evidence letter dated 21.09.2018 as Annexure C-1, letter dated 30.08.2018 as Annexure C-2, another letter dated 30.8.2018 as Annexure C-3, letter dated 4.9.2018 as Annexure C-4, another letter dated 4.9.2018 as Annexure C-5, Description of goods as Annexure C-6, Tax Invoice as Annexure C-7, another tax invoice as Annexure C-8, transaction inquiry as Annexure as Annexure C-9, Legal notice as Annexure C-10, Postal receipts as Annexure C-11, Copy of Ads as Annexure C-12 to Annexure C-14, postal receipts as Annexure C-15, copy of mail dated 13.10.2018 as Annexure C-16, copy of Indian-Non Judicial Stamp as Annexure C-17 and photos as Annexure C-18 to Annexure C-21 and closed evidence of the complainant.
7. On the other hand, none has appeared on behalf of OPs no. 1, 2 & 4 despite notice, hence, they were proceeded against exparte vide order dated 18.04.2022 & OP no. 3 & 5 given up being unnecessary party as per statement of complainant vide order dated 31.1.2020.
8. We have gone through the record of the case carefully and have heard the learned counsel for complainant. After going through the complaint and other connected documents, the only question which arises for determination is, whether the complainant has able to prove himself to be consumer of the OPs and if not, then the complaint is deserve to be dismissed being not maintainable before this Forum.
9. The complainant has come forward with a specific plea that he got the distributorship of the cosmetic products from the OPs no. 2 to 5 i.e. Hyporia ventures Pvt. Ltd and when the product were found defective, despite repeated complaint, the OPs refused to lift the said products from his shop and also refused to refund Rs.1,26,078/- deposited by him whereas the OPs in their written statement categorically mentioned that the complainant got the distributorship of company for re-sale of their cosmetic products to earn profit, hence, he is not a consumer and therefore his complaint is not maintainable before this Forum.
10. The factum of getting the distributorship of the product of Hyporia ventures Pvt. Ltd. is not denied by the complainant, because in Para No. 2 of the complaint, he has taken a plea that in the month of June 2018, OP no. 2 to 5 came to his shop at Bhiwani to have business terms with him by getting the distributorship of their products. It is also the case of the complainant that the OP no. 2 to 5 gave assurance to complainant of their products to be of very good quality, hence he joined the business with respondents/OPs. This averment of the complainant clearly shows that he joined the business of OPs by getting their distributorship and not purchased the goods for his own use.
11. It is also the case of complainant that the OPs got issued six blank cheques nos.048973 to 048978 and some blank papers bears his signature and also got deposited Rs.1,26,078/- in the account of OPs from complainant. Blank cheque duly signed by complainant must have been given for security purpose, otherwise there was no occasion for the complainant to hand over six blank cheques duly signed by him to OPs.
12. It is also come up on record that when complainant did not make the payment of the purchased products/goods to the OPs, they filed a complaint under Section 138 of Negotiable Instrument Act at Gurugram which is pending in the Hon’ble Court of Sh. Ashish Arya, JMIC, Gurugram. Moreover, complainant had entered into an distributorship agreement with the OPs which is placed on record as Annexure C17 by complainant himself. The perusal of the agreement reveals that it was a business transaction and complainant signed the agreement for getting the distributorship of the cosmetic product of OP no. 2 to 5. No doubt complainant has mentioned in para no. 1 of the complaint that he is running a shop namely Nisha Beauty Collection, Gaushala Market, near Hanuman Mandir, Bhiwani but he had nowhere mention in his complaint that the product purchased from OPs no. 2 to 5 were for his use at the said shop.
13. Apart from this on 13.6.2022 during argument the complainant had admitted that he had taken the distributorship of the complainant item from M/s Hyporia Ventures Private Ltd. and also executed an distributorship Agreement which is Annexure C17 and as per agreement he had deposited a sum of Rs. 1,26,078/- in the office account maintained in the Bank of India situated at Ghanta Ghar Bhiwani but later on the product were found defective, the several complaints were made by sub distributors and thus he refused to use the product of the OPs. To this effect statement of complainant was recorded separately. Section 2 (d) (1) of the Consumer Protection Act, 1986 define the term “consumer” which is reproduced here as under:-
“Consumer”- means and 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 party 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 ……………
- ………………………………..
14. The perusal of the language of the “consumer” it is clear that if a person buys any goods for re-sale or for any commercial purpose then he does not fall with the definition of consumer.
15. As, the complainant got the distributorship of the product of OP no. 2 to 5 for re-sale or for commercial purpose, thus, he cannot considered to be consumer and therefore his complaint is not maintainable before this Forum and thus the same stand dismissed.
16. So finding no merit in the complaint, the same stands dismissed.Copy of the judgment be supplied to the parties free of costs as per rules. File be consigned to the record room after due compliance.
Announced in open Forum.
Dated: - 13.06.2022
(Harisha Mehta) (Sh. Vijay Singh)
Member. President,
District Consumer Disputes
Redressal Forum, Bhiwani.
