DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA.

CC.No. 181 of 19-4-2012

Decided on 5-09-2012

Ramesh Fertilizer 69, Anaj Mandi Bathinda through its Prop. Ramesh Kumar aged about 46 years son of Ved Parkash.

........Complainant

Versus

Mahagujarat Seeds Pvt. Ltd, 694, Chandak Lay out, near Gitanjali Press Ghat Road Nagpur through its Managing Director.

......Opposite party

Complaint under Section 12 of the Consumer Protection Act, 1986.

QUORUM

Smt. Vikramjit Kaur Soni, President.

Smt. Sukhwinder Kaur, Member

Present:-

For the Complainant: Sh. Ashok Gupta, counsel for the complainant.

For Opposite party: Sh. K.S Brar,counsel for opposite party.

ORDER

VIKRAMJIT KAUR SONI, PRESIDENT:-

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, 1986 as amended upto date (Here-in-after referred to as an 'Act'). The brief facts of the complaint are that the complainant is a petty shopkeeper and running seed shop for the last many years and he executed an agreement with the opposite party for selling their products on commission basis. The opposite party has executed the agreement for 3 years started from 1.10.2008 to 30.9.2011. According to the agreement the opposite party agreed to pay the commission on the sale of the goods. All the goods were sent at Bathinda for the sale purposes and the complainant after getting the payment from the different customers has deposited the same with the opposite party as per their directions. As per the agreement the complaint was to deposit Rs.5 lacs as security with the opposite party and the opposite party was to pay interest @ 12% p.a on this security amount till the maturity of the agreement. The agreement expired on 30.9.2011 and the opposite party was duty bound to refund the amount of Rs.5 lac with interest @ 12% p.a but the opposite party did not pay the interest from 1.10.2011 to till date nor refunded the security amount of Rs.5 lacs. The opposite party was requested many times to refund the security amount but it did not listen to the complainant. Hence the complainant has filed the present complaint for seeking the directions to the opposite party to refund Rs.5 lacs with interest @ 12% per annum from 1.10.2011 till date alongwith cost and compensation.

2. The notice was issued to the opposite party. The opposite party after appearing before this forum has filed its written statement and has admitted that the complainant is a petty shopkeeper and running a seed shop. He executed an agreement with the opposite party for selling their products on commission basis as per agreement, he was to deposit Rs.5 lacs as security with the opposite party. The opposite party did not refund the security amount to the complainant. The opposite party pleaded that throughout in the complaint, the complainant has nowhere stated that he has purchased the goods from the opposite party for its personal use or paid any consideration to them for availing service of them and that there was any sort of deficiency in the service on the part of the opposite party towards the complainant. Therefore there is no relationship of 'consumer' and 'seller' between the complainant and the opposite party. The complainant does not fall within the definition of consumer as defined under the Consumer Protection Act, 1986. Moreover, there is commercial transactions between the complainant and the opposite party. The complainant is seeking the remedy of the refund of its security amount lying deposited with the opposite party and interest thereon which makes out a regular suit for recovery and thus only the Civil Court has the jurisdiction to entertain and try the subject matter. The complainant entered into an agreement with the opposite party at Nagpur and as per terms and conditions of the agreement, all disputes arising between the parties will be subject to Nagpur Jurisdiction. The complainant itself is guilty of breach of terms and conditions of the agreement and it is the opposite party which has to recover the amount from the complainant. The opposite party further pleaded that the complainant was appointed by them as its Super Distributor of Punjab State for the supply of seeds and micronutrients produced and marketed by the opposite party in the State of Punjab vide agreement dated 16.8.2008 for the period w.e.f 1.10.2008 to 30.9.2011 This agreement has executed and entered upon by the parties at Nagpur. The agreement between the parties expired on 30.9.2011. As a matter of fact, the opposite party has to recover a sum of Rs.7,42,822.60 from the complainant and besides it, goods worth Rs.7.50 lacs are lying with him, which were supplied by the opposite party to him for distributing to the various parties, but he has failed to do so. The complainant was asked time and again by the opposite party to settle its account with the opposite party and by adjusting the security amount, make payment of remaining amount to the opposite party, but he failed to do so. Now, the complainant in order to avoid the payment of remaining amount which is approximately Rs.9,92,822/-, has filed the present complaint.

3. The parties have led their evidence in support of their respective pleadings.

4. The opposite party has filed an application dated 25.7.2012 for rejection/return/dismissal of complaint. In this application the opposite party has pleaded that there is no relation of 'consumer' and 'seller' between the complainant and the opposite party. The complainant can make out regular suit for recovery and only the Civil Court has the jurisdiction to entertain and try the subject matter. The complainant entered into an agreement with the opposite party at Nagpur and as per terms and conditions of the agreement, all disputes will be subject to Nagpur jurisdiction.

5. The complainant has given reply to this application and pleaded that the complainant is claiming his security of Rs.5 lacs which is lying with the opposite party and nothing has been claimed except the security. There is no question of the sale and purchase. He has neither claimed any commission nor demanded any account of the sale and purchase rather demand of security is in question and there is no other thing to be decided. The application is totally incorrect and there is no question of the commercial activities involved as he has not claimed anything regarding this account. He has also not raised any question of breach of contract.

6. Arguments on application heard. A perusal of complaint, written statement as well as evidence produced by the complainant and the documents produced by the opposite parties with their written statement reveals that the complainant is not consumer to the opposite party rather he is the distributor of the opposite party. The opposite party sent the goods to him for distribution purpose and further the security deposited by him to the tune of Rs.5 lacs is not due to any type of consideration towards the opposite party rather it is outcome of an agreement, the amount of Rs.5 lacs is deposited as security to purchase the goods from the opposite party. The opposite party has placed few documents alongwith their reply. The account statement from 1.4.2012 to 3.4.2012 shows the closing balance of Rs.7,42,822.60 and as such upto date account statement at page No.3 shows that the closing balance is Rs.9,34,851.10, meaning thereby that this amount is recoverable from the complainant. Thus there is no relationship of the complainant with the opposite party of consumer and service provider as defined under section 2(1) (d) of the Consumer Protection Act, 1986. The relevant portion of section 2(1)(d) is reproduced as under:-

“Consumer” means any person who -

(i) 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 partly 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;

(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed or with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes.

Explanation – For the purposes of this clause “Commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment.”

7. In view of what has been discussed above, the complainant is carrying on the commercial transactions, moreover there is no relation of complainant and the opposite party of consumer and service provider. Hence this Forum has no jurisdiction to try and entertain the present complaint, thus the application filed by the opposite party is accepted and the main complaint is hereby dismissed without any order as to cost. The complainant is at liberty to approach the appropriate authority/court for the redressal of his grievances if so adviced and permitted by law.

8. A copy of this order be sent to the parties concerned free of cost and file be consigned to the record room.

Pronounced in open Forum:-

5-09-2012 Vikramjit Kaur Soni

President

Sukhwinder Kaur

Member