ORDER

Per: Md. Shamim Akhtar, Judicial Member

Dated- 24.04.2024

1. The case of the complainant in brief as  stated in the petition of complaint is that the O.P. no-1 is a company  registered under the companies Act 1956 and at present functioning under the directorship  of the O.P. no-1 & 2. The O.P. no-1 claims to be one of the larger branded jeweler, retailer and his brand name is  known as Nakshatra D’Damas  and the  O.P. no-2 has acted on behalf of the O.P. no-1 and  the O.P. no-3 & 4  are employee of the opposite- party no-1 and the O.P. no-5 is the  financer of the complainant. Further case is that O.P. no-1 flashed a news in the local news paper stating that the   company wants a distributor in Bihar for selling gold ornaments and other costly stone on certain terms and condition and the complainant filed application and his application was granted on 28.04.2015 through O.P. no-2 and approval letter was issued in favour of the complainant with certain terms and condition. Further case is that the   opposite-parties have offered an attractive commission to the distributor only for grabbing money. Further case is that the complainant is a small goldsmith shop owner in Katihar District under name of Style of M/S Neel Kamal Jewelers at Mirchi Bari in the town of Katihar. Further case is that according to letter dated 28.04.2015 the management of the O.P. no-1 has agreed to allot a distributorship for selling branded jewelry in the entire Koshi belt under certain terms and conditions. After approval the complainant applied for loan to O.P. no-5 which was allowed by the O.P. no-5.According to the complainant this is an open case of unfair trade practice and restrictive trade practice and under the Consumer Act also. Further case is t hat the  complainant has taken loan from the O.P. no-4 (as  written at page no-9,para no.- E of the petition of complaint) and  started his business for the purpose of livelihood only and the  complainant and h is  three  family members are engaged in  the shop of the complainant  under self  employment and  the very purpose of  selling gold  and  other valuable item and /or apply for distributorship to meet daily needs only. 
2. Further case is that profit margin  was limited  and from perusal of letter  dated 28.04.2015 it will appear  that the opposite-parties have also fixed  profit  of  margin money according to  sale  of Gold Ornaments/other  things and the complainant  did not breach  the  terms and conditions. The business areas and annual  targets of  sale  was also fixed by O.P. no- 2 in the letter dated 28.04.2015  and  as per condition no.- 10 of the letter dated 28.04.2015 the complainant can’t appoint any agent/distributor  and  the  sales shall be confirmed to the retailer of the  territory and the goods can’t be sold out of the M.R.P. fixed. Further case is that as per terms and condition of   the letter dated 28.04.2015 the complainant started his business after a payment of Rs. 37,32,000/- to the opposite-parties with the  help  of the  financer Bank. The O.P. no-1 and 2 had ordered to give three blank cheque for special circumstances just for security purposes which was done in good faith.
3. Further case of the complainant is that the opposite-parties send goods/gold jewelry and other item to the complainant through O.P. no- 3 but the O.P. no- 3 and 4 failed to perform their duties as to fulfill market  demands or sell of goods in the market as per agreement clause 10 of the letter dated 28.04.2015 inspite of repeated requests made by the complainant within reasonable period and the complainant gave full support and assistance to the O.P. no- 3 and 4 to achieve the target but the O.P. no-3  and 4 did not achieve minimum target as given by the  O.P. no-1 for sale. Further case is that as per agreement the complainant cannot appoint agent/distributor to sell the goods or sell through his sale counter and the complainant was fully dependent upon the sale representative of the company i.e. O.P. no- 3 and 4. The complainant met with the O.P. no-1 and 2 and complained as to the performance of the O.P. no- 3 and 4 but they were not    ready to listen and ultimately complainant made request to the opposite-parties to boost up the employee of the company with regards to sale otherwise the complainant cannot stay with the company because the complainant has to pay hefty interest over the loan amount but the request of the complainant was not taken care.
4. Further case of the complainant is that lastly the complainant returned the goods   worth Rs. 36,55,000/- to the opposite-parties  on account of  non performance of the  company and the goods were received by the authorized officer. In response to the refund of gold and other items the O.P. no- 1 and 2 paid Rs. 25,00,000/- to the complainant’s account through RTGS from 17.12.2016 to 05.01.2017 but the opposite-parties did not pay the actual balance dues amount  after making final calculation inspite of requests made and  in  the last  the complainant claimed for payment of  Rs. 17,50,000/-  as a  Bank interest which has been paid by  the complainant to  the O.P. no- 5 about Rs.11,00,000/- as balance amount  and about Rs. 7,80,000/- was invested in  warehouse of the goods for keeping safety purposes and other Misc expenceses of Rs. 5,00,000/-,total Rs. 41,50,000/- of the goods on  account of non performing of sale  agreement dated 28.04.2015.Further case is that   earlier complainant filed  a complaint bearing complaint  no- 26/2018 before this Commission but due to non  prosecution, the case was dismissed at admission stage without going into the merit of the case and from the date of knowledge of dismissal of the case no.- 26/2018 this case is being filed, within 30 days. In the circumstance the complainant has no option but to move before this Hon’ble Commission for removing deficiency in service, negligence, faults etc. The opposite-parties have deliberately/intentionally ignored the terms and conditions of the agreement dated 28.04.2015 therefore this complaint is being filed. Prayer is made to direct the O.P. no-1 & 2 to refund Rs. 41, 50,000/- with 12% (interest) from the year 2016 to final payment and in case the opposite-parties fail to refund money as claimed then gold ornaments or other received costly stone/jewelry which has been received by the O.P. no- 1 and 2 be refunded in lieu of money as claimed by the complainant. Prayer is also made to direct the opposite-parties to pay litigation cost of Rs. 51,000/- and the opposite-parties   may be directed to pay compensation for loss, deficiency, negligence, faults etc. Rs. 5,00,000/-  each to complainant with 12 % interest from the date of   agreement till final payment. According to the complainant the value of the goods is approx Rs. 46, 50,000/- which is under the jurisdiction of this Hon’ble Commission.
5. The O.P. no-1 to 4 have not appeared and the case proceeds ex-parte against them vide order dated 22.06.2023.
6. The O.P. no-5 has appeared and has filed   its written statement in which they have denied and disputed the case of the complainant. The case of the O.P. no-5 in   brief as per the written statement is that the   complaint is not maintainable and the allegation made in the complaint are not expressly admitted and   the complainant is  put to  strict proof  of the  same and  the case is without cause of action. Further case is that it is relevant to  point  out that the complainant in the  relief seeking  para  has  sought relief against all opposite-parties for  damage  and if  it is  presumed to be true then it is  maintainable only against  the O.P. no- 1  to 4 and such  relief against O.P. no-5 is groundless. It is the also case of the O.P. no-5 that the complainant obtained loan facilities from them and therefore liable to pay back the due loan amount as per the terms and condition as per the executed loan agreement. Prayer is made to dismiss the complaint with cost.
7. We   have heard both the learned counsel for the complainant  and the learned counsel for the O.P. no-5.At the time of  hearing  the learned counsel for the  complainant relied  on the decision as reported in CPJ (2020) (2) SC 46 (M/S Nandan Biometric Ltd  vrs. Amlika Devi),CPJ (2020( (2) SC55 (Canara Bank vs. M/S Leatheriod Plastics  Pvt.Ltd. On the  other hand  the learned counsel for the O.P. no-5 has relied  on the decision  as reported in (2014) 3CPJ 350   NCDRC (NLP organics  Pvt. Ltd. vrs. Indian Bank & ors).
8. Also perused the records including the notes of argument filed. On the basis of the pleadings of the parties the following issues are settled for consideration:-

(I) whether the complainant is a consumer within the meaning of section 2 (7) (i) of the Consumer Protection Act 2019 ?

2. If so, whether the complainant is entitled for the reliefs as claimed for?

                                            FINDINGS

Issue no- I-

The complainant has not filed any evidence on affidavit. At page  no-8 at Para ‘c’ of the complaint petition the  complainant says that he is a  small goldsmith  shop  owner in Katihar and  at page-9 at para (E) of the complaint petition  the complainant  says that he   and  his three family members are engaged in the shop under self employment. It means that the complainant   and his three family members are already engaged in the goldsmith shop for livelihood under self employment. The letter dated 28.04.2015 of the O.P. no-1 shows that it relates for grant of distributorship for ‘Diamond Jwellery’ for the Koshi belt area to the complainant on certain terms and conditions with fixed targets and on fixed commission. The copy of  letter dated 28.04.2015 attached with the complaint shows that  the goods were to be obtained for resale and for commercial purposes  as  the goods bought were not  to be used by  the complainant by himself exclusively for  the purposes of  earning his livelihood and by means of self employment. The decisions relied on by the complainant as mentioned above are not applicable in the instant case as the facts and circumstances of the instant case is different. We, therefore, hold that the complainant is not a consumer within the meaning of section 2 (7) (i) of the Consumer Protection Act 2019.

Issue no- II-

 In view of the findings given in Issue no- I as above that the complainant is not a ‘consumer’ within the meaning of section 2 (7) (i) of the Consumer Protection Act 2019, so, he is not entitled to any reliefs as claimed, for.

                In result, the complaint is dismissed. No costs.

A copy of this order be supplied to both the parties free of cost as mandated by the Consumer Protection Act, 2019. The order be uploaded forthwith on the confonet of the State Commission.

Let the file be consigned in the record room along with copy of this order.

                  (Md Shamim Akhtar)                                                                          (Gita Verma)

                          Member                                                                                          Member

Anita