O R D E R

Sri. Santhosh Kesavanath P. President.

Opposite party in the above both cases filed interim application challengiing the jurisdiction of the forum and maintainability of the petition before the Forum as preliminary issue.

Heard both sides. Gist of the petitioner's case in both cases is that the petitioners are agriculturists and their main source of livelyhood is farming. According to the petitioner's the opposite parties conspired together and published advertisements in Karshakasree and other magazins under attractive caption about cultivation of Safed Musali. The 3^rd opposite party is a trader in seeds and manure and is conducting Shop for the trade of the same. Petitioner's induced by the article published in magazine cultivated Safed Musali named as 'Herbal Viagra'' . The petitioner's negotiated with opposite parties for cultivation of 'Musali' in their respective. Properties and thus purchased Musali seeds by paying consideration. A memorandum of understanding was executed on 28..5..2004 showing M/s Mount Zion Agri Farm as the buyer and the petitioner as the farmer. An agreement was sighned by the 1^st opposite party for and behalf of Mount Zion Agri Farm. As per the MOU the period of agreement is 3 years. According to the petitioner the opposite party resiled from their promise and were not ready and willing to purchase the Safed Musali. The petitioner states that due to the act of the opposite party the petitioner put to much hardship and he cannot able to sell the materials and thus the

materials because it is not a merchantile commodity. So, the petitioner's prays for compensation.

The case of the opposite party is that petition is not maintainable and they contented that the petitioner is not a consumer. They contented that the petitioner is bad

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for mis-joinder of necessary parties. According to them there is no false statement in the advertisement. The opposite party contented that the MOU is executed for getting Government subsidy. They contented that nobody can predict the yield and future market price of the product and all that facters are beyond the control of opposite party. So, the opposite party contented that there is no deficiency of service or unfair trade practice on their part. So, they pray for a dismissal of the petition.

The moot question to be decided is whether both the petitioners are maintainable or not?

According to opposite party the alleged dispute is with regard to sale and purchase of safed Musali. So, the petitioner cannot be defined as a consumer as defined under section 2 (d) of Consumer Protection Act. In the instant case the petitioner produced a Memorandum of understanding (MOU). The MOU is an agreement entered between the petitioner and M/s. Mount Zion Agri Farm. As per the MOU the mount zion agri farm had undertaken to buy back the Medicinal herbal raw drugs cultivated by the petitioners. According to petitioner the opposite party had not purchased the 'raw drugs of the petitioner as agreed and the seeds are of poor quality. So he claims compensation for not

acting according to MOU. On kepting reliance on the judgements rendered by the National Commission in Shakthi Sugar Vs. Sreedhar Sahoo & others (In R- P 817 of 1996 Dtd: 30..5..99)it is stated that the seller cannot claim the status of consumer as defined under section 2 (d) of the Consumer Protection Act. In another case reported in 2002 (3) CPR 197 (NC) (M/s. Sidheswar Iron & Steel (P) Ltd. Vs. Kirloskar Electric Co. Ltd. & Another) The Hon'ble National Commission stated that supply of goods for resale will not be in the nature of deficiency in service and 'sale' being for commercial purpose

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and the petitioner would not be a 'consumer'. The counsel for the petitioner vechumently argued that here there is no-resale because the dictonary meaning of resale is act of selling second time. Further more he argued kepting reliance on a decision of the Hon'ble Andhra Pradesh State Commission that 'agriculture' cannot be termed as commercial. So, the petition is maintainable.

We are of the opinion that as per the defanition of consumer defined in sub clause (ii) of section 2 (1) (d) it can be clearly seen that in relation to transactions of purchase of goods, parliament has excluded from the scope of the definition any person who obtains goods for resale or for any commercial purpose. Here in this case the petitioner purchased 'Safed Musali' as per MOU and he cultivated and demand for purchase of Safed Musali by the Mount Zion Agri Farm. We are of the opinion that after cultivation of the 'Musali' the petitioner will crept in the shoe of a 'seller'. Furthermore the buying of the seed and selling of the raw medicinal material etc. are with a view to using such goods for carrying on the activity on a large scale for the purpose of earning profit. So, in our opinion that the petitioner's in the both petitions cannot be treated as a consumer as defined under section 2(d) of the Consumer Protection Act 1986.

In view of the above findings. We are of the opinion that the petition is not maintainable before the Fora . So, both the original petitions are dismissed as not maintainable.