Date of filing: 14.06.2016 Date of disposal:03.08.2016
Plaintiff: Krishna Cold Storage Pvt. Ltd., represented by it’s the proprietor, having its office at
Lakurdi, G.T. Road (Bye- Pass), P.S.-Burdwan, Dist.-Burdwan, Pin-713102.
-VERSUS-
Respondent No.1: Buddhadeb Ghosh, S/o. Lt. Subal Chandra Ghosh, resident of Natungram,
P.O.-Panchkula, P.S.-Bhatar, Dist.-Burdwan.
Present : Hon’ble President: Sri Asoke Kumar Mandal.
Hon’ble Member : Smt. Silpi Majumder.
Hon’ble Member : Smt. Pankaj Kumar Sinha.
Appeared for the Plaintiff: Ld. Advocate Arindal Mukherjee.
Appeared for the Respondent: Ld. Advocate Suvro Chakraborty.
Order No.06, Dated: 03.08.2016
The Ld. Advocates for the contesting parties are present by filing haziras. Today is fixed for hearing of the Miscellaneous Application being no-90/2016. In presence of both the parties we take up the application for hearing. Today the Ld. Counsel for the Complainant has filed objection against the said application with a copy to the other side. We have heard on the application from the Ld. Advocates for the parties at length.
This order is arising out of the Miscellaneous Application being no-90/2016 filed by the OP in the D.F. case no-65/2016 challenging the maintainability of the complaint. In the application it is mentioned by the OP that in the petition of complaint it is stated by the Complainant that he kept 858bags of potato in the cold storage. The OP has mentioned that the Complainant kept 893 packets of potato with the OP. From the documents as annexed by the Complainant it is evident that bond nos-1, 3 and 28 only stand in the name of the Complainant and the rest bonds stand in the names of different persons. The documents show that the Complainant kept 440 packets of potato with the in his name out of 893 packets of potato. But the Complainant has claimed the rights and benefits of the other persons, which he is not at all entitled and as a test case this complaint has been filed with ulterior motive. The OP has mentioned the definition of consumer as enumerated in the Consumer Protection Act, 1986 u/S 2(1)(d)(i)&(ii). Mentioning the abovementioned definition the OP has stated that the Complainant has kept the potatoes in the names of other individual for commercial purpose and for this reason the Complainant cannot be termed as ‘Consumer’ in view of the said definition. According to the OP this case is nothing but purely abuse of process and further advancement of this complaint is nothing but wastage of the valuable time of the Ld. Forum. It is submitted by the OP that if this application is not allowed, it will suffer irreparable loss and injury and prayer is made for allowing the application.
The abovementioned application has been contested by the Complainant by filing written objection contending that he being a poor cultivator used to earn his livelihood by engaging himself towards cultivation of lands, deposition of crops in several cold storages and marketing those crops after releasing the same from those cold storages. In the year 2015 the Complainant deposited 440 bags of potato before the OP-cold storage and the OP issued bonds bearing no-1083/111, 902/156, 566/117 and 1858/56. It is pertinent to mention that as per custom some persons used to purchase bonds from the cultivators. As per custom the Complainant also purchased the remaining bonds of 418 bags of potato from one Rafikul Islam by making payment of Rs.85,690/- on 11.06.2015. The Complainant has filed one document showing purchase of those bonds subject to make payment of consideration amount for earning his livelihood. So as per the Consumer Protection Act, 1986 he is a consumer and there is no question of commercial purpose. It is further mentioned by the Complainant that the OP has no right to sale out the potato packets of the depositors/cultivator without their consent and the OP with a view to save their skin has filed the instant application and tried to shift their liability on the shoulder of the Complainant. Not only that on this account the OP has initiated one criminal case against him by raising false objections and such action of the OP can easily be termed as unfair trade practice on its behalf. Again it is pertinent to mention that in the application the OP has mentioned about 893 packets of potato whereas the Complainant deposited 858 packets of potato, which is nothing but an act for misguiding the Ld. Forum. The Complainant being a bonafide customer of the OP, had never done any act detrimental to the interest of the OP. Inspite of this the OP by adopting several illegal process wanted to restrain the Complainant, which is an example of deficiency in service as well as unfair trade practice. According to the Complainant as the instant application has no merit at all, the same is liable to be dismissed with exemplary cost.
We have carefully perused the application filed by the OP challenging the maintainability of this complaint and the written objection thereto filed by the Complainant and heard argument at length advanced by the Ld. Counsel for the contesting parties. It is seen by us that admittedly the Complainant hired the service of the OP be depositing potato packets in its cold storage. No submission is made by the parties as to whether the consideration for availing of such service has been paid by the Complainant or not. As the contesting party did not put emphasis on this point, we are not inclined to enter that matter. The OP has mentioned in the application that the Complainant kept 893 packets of potato in its cold storage, but the Complainant is claiming that he deposited 858 packets of potato with the OP. Therefore whatever it may be admittedly the Complainant kept some potato packets in the OP’s cold storage. It is an admitted fact that out of 893 or 858 packets 440 packets was deposited by the Complainant in his own name and in respect of 440 packets only bonds were issued by the OP in his favour. The OP has submitted that as the remaining packets/bonds were not issued in the name of the Complainant, hence in connection of the remaining packets the Complainant cannot be a consumer. In this respect the complainant has mentioned in his objection that he purchased the remaining bonds of 418 bags of potato from one Rafikul Islam by making payment a sum of Rs. 85, 690/- on 11.06.2015. In support of his contention the Complainant has filed one diary page wherein it is mentioned on its reverse page that one Rafikul Islam received a sum of Rs. 85,690/-, but from whom he received the amount the picture is not at all clear. Moreover the said diary page cannot bear any evidentiary value because the Complainant has neither mentioned this averment in his complaint nor submitted this document along with his complaint at the time of filing the complaint. The diary page has not also been filed by the Complainant supporting by affidavit. Therefore this document does not bear any value at this stage. It is also curious to us that it is not at all mentioned by the Complainant in the petition of complaint that he purchased some bonds from one Rafikul Isalm by making payment of consideration amount, it is for the first time that the Complainant has disclosed in his objection that he purchased from one Rafikul Islam. But inspite of such disclosure it is seen by us that the Complainant has not disclosed the true facts as yet, because the Xerox copies of the bonds as filed by the Complainant at the time of filing the complaint show that there are several bonds lying in the names of other persons apart from either the Complainant or Rafikul Islam. We have noticed that bonds have been submitted by the Complainant in the names of Pankaj Mete, kishore Kumar Mallick, Mintu Mallick, Avaik Dana, Kuraram Konar, Sk. Bakul, Sk.Otal and in the names of another about 16 persons. In this respect one question is cropped up in our mind that in what capacity Rafikul obtained those bonds from whom the Complainant purchased the same, which he claims in his objection. The Complainant has failed to make clear the picture. Therefore though the Complainant has claimed that he purchased remaining bonds from Rafikul islam by making payment of due consideration, but where it is evident that those bonds are not at all lying in the name of Rafikul Islam, admittedly lying in the names of several persons, then how the Complainant purchased those potato bonds from one Rafikul Islam only, the picture has not been cleared by the Complainant and moreover this statement has not been disclosed in the petition of complaint. Therefore it can easily be said that the Complainant did not approach before this Ld. Forum with clean hands. There are several judgments passed by the higher Forums/Commissions wherein it is held that approach with unclean hands should not be encouraged. So in our view apart from 440 packets of potato the Complainant cannot be a consumer in respect of the remaining packets of potato, where the potato bonds were purchased by other several persons. It is seen by us that in the petition of complaint it is mentioned by the complainant that he used to earn his livelihood by cultivating his lands in his locality by self employment. In each and every year the complainant cultivates potato in his land and after plucking potatoes he used to load the same in the nearby cold storage and in the year 2015 also he kept 858 packets of potato in the cold storage of the OP. Though the Complainant has stated the abovementioned averment on affidavit but the present picture and document do not corroborate the said averment because it is proved by the documentary evidence that that Complainant did not deposit his cultivated potatoes only in the cold storage, but purchasing several potato bonds from some other persons deposited the same with the OP. In this respect also the Complainant has failed to prove that he did not avail of the service of the OP for commercial purpose. Purchasing of several potato bonds from several persons and keeping the same with the cold storage, cannot be said that the Complainant hired the service of the OP for earning his livelihood.
We have noticed that admittedly the Complainant deposited 858 packets of potato with OP out of which 440 packets/bonds were in his own name and the remaining in the names of another several persons. As there is no documents from the side of the Complainant that those bonds were purchased from the respective persons the Complainant is not entitled to seek any relief in respect of those bonds, no lying in his name. It is stated by the Complainant that the potato packets was sold out by the OP in the open market. During argument it is submitted by the Complainant without taking his consent the OP had sold the packets which is an act of unfair trade practice. But there is no whisper in the complaint that consent was not taken from him by the OP before selling the potato packets. After sold out of the packets the OP paid a sum of Rs.1,33,800/- to him and the amount has duly been received by the Complainant. The allegation of the Complainant that the OP paid him lesser amount as he is entitled to get a sum of Rs.2,57,400/- towards the purchase price (858 packets X Rs.300/-) = Rs.2,57,400/-, but the OP paid him a sum of Rs.1,33,800/- and hence he is entitled to get Rs.1,23,200/- from the OP towards the purchase price. It is mentioned by the complainant that at the prevalent period price of per quintal of potato was for Rs.400/- and each packet contained 50 Kgs of potato, therefore the price of per packet of potato was of Rs.200/- as per rate of the Agricultural Marketing Department. It is also admitted by the Complainant that the OP sold the potato packets in the open market @ Rs.300/- and got Rs.2,57,400/- out of the sale proceed, but paid to him only a sum of Rs.1,33,800/- and demanding the balance amount of Rs.1,23,200/- this complaint is initiated. From such averment of the Complainant it is established that the Complainant being a seller sold his potato packets to the OP and being purchaser the OP purchased the same. Whether the seller got the entire sale proceed amount from the purchaser or not, this Ld. Forum has no authority to adjudicate the same as before the Consumer Forum only Consumer or beneficiary can approach, this Ld. Forum has not been established for approaching by a seller. Therefore in this context also the Complainant being a seller cannot be entitled as a consumer in view of the definition of ‘Consumer’ as enumerated in the Consumer Protection Act, 1986.
Going by the forgoing discussion hence it is ordered as the OP has successfully proved that the instant complaint is not maintainable before this Forum, the M.A. being no-90/2016 is hereby allowed on contest without any cost.
Order No.07
03.08.2016
As the M.A. being no-90/2016 has been allowed on contest without any cost wherein it has been held that the Complaint is not maintainable before this Ld. Forum, hence the Consumer Complaint case no-65/2016 is hereby dismissed being not maintainable on contest without any cost. The Complainant is at liberty to approach before the appropriate Forum/Court, if not barred otherwise.
