BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Date of filing : 10/01/2011

Date of Order : 29/02/2012

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 16/2011

Between

And

O R D E R

A. Rajesh, President.

1. Shortly stated, the case of the complainant is as follows :

The complainant is a share holder of the opposite party. The opposite party purchased 104.400 kg. of Vanilla Beans from the complainant on 26-11-2005 for Rs. 21,835/-. On 15-05-2008, the opposite party paid Rs. 2,183/-. On that day, the opposite party assured to pay the entire balance amount by December 2010. Believing the said promise, the complainant demanded the balance amount of Rs. 19,652/-. But they failed to do so. The complainant is entitled to get an amount of Rs. 19,652/- from the opposite party along with interest at the rate of 12% per annum from December 2010 onwards together with costs of the proceedings. This complaint hence.

2. The version of the opposite party :

The complaint is barred by limitation as the same is filed after the period of limitation contemplated in Section 24 A of the Consumer Protection Act. Moreover, being a shareholder of the opposite party as contended by him, the complainant is not a consumer as defined in Section 2 (1) (d) of the Consumer Protection Act. Therefore, this Forum had no jurisdiction to entertain this complaint. The opposite party is a producer company wholly owned by farmers incorporated under the provisions of the Indian Companies Act. The complainant who is a shareholder of the opposite party sold Vanilla beans to the company through the “Klothamangalam Vanilla Karshaka Swasraya Sangam”. The price quoted in the vanilla option agreement is tentative and not a final price. The price will be finalized only after the sale of the processed Vanilla beans. Therefore, it is not correct to say that this opposite party purchased 104.400 kg. Vanilla Beans for Rs. 21,835/- from the complainant. In spite of the decision taken in the extra ordinary meeting of the share holders and association representatives held on 01-10-2005 to quote the previous year price, the opposite party could only sell a portion of the collected Vanilla Beans because of lack of demand and low price. After effecting the sale, the amount thus received by the company is proportionally distributed among the shareholders including the complainant. Thus, the remaining processed Vanilla purchased from different shareholders including the complainant is kept idle in the company premises. Being a shareholder of the company, the complainant can claim the price of the balance vanilla supplied by him only on its sale. The opposite party is now not in a position to pay off the price of the balance Vanilla beans without its sale, since the opposite party suffers from financial crisis. This opposite party or its staffs never assured the complainant to refund any amount as alleged by him. The said allegation is made only to save the period of limitation. The complainant has no cause of action against the opposite party. The opposite party requests to dismiss the complaint.

3. No oral evidence was adduced by the complainant. Exts. A1 and A2 were marked on his side. The witness for the opposite party was examined as DW1. Exts. B1 to B4 were marked on their side. Heard the learned counsel for the parties.

4. The points that emanated for consideration are :-

1. Whether the complainant is a consumer?

2. Whether the complaint is barred by limitation?

3. Whether the complainant is entitled to get a sum of Rs. 19,652/- from the opposite party being the price of the vanilla beans with interest?

4. Whether the opposite party is liable to pay the costs of the proceedings to the complainant?

5. Point No. i. :- According to the opposite party, the opposite party is a company registered under the Companies Act 1956 and the relationship between the complainant and the opposite party is that of 'Member' and 'producer company' as defined in Section 581 A of the Act. The learned counsel for the opposite party vehemently contended that as per Section 581 Z0 of the Act, the dispute between a member and producer company shall be settled by conciliation or by arbitration as provided under the Arbitration and Conciliation Act 1996. However, the learned counsel for the complainant relied on Section 3 of the Consumer Protection Act which reads as follows :

“Act not in derogation of any other law – The provision of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”

Section 3 is worded in the widest terms and leaves no one in doubt that the provisions of Consumer Protection Act shall be in addition and not in derogation of any other law for the time being in force. Thus, even if any other Act provides for any remedy to a litigant for redress of that remedy a litigant is not restrained from going to a Consumer Forum if he is a consumer under the Consumer Protection Act. That remedy exists in any other laws which creates the right is no bar to District Forum assuming jurisdiction. In that view of the matter, we have no hesitation to entertain this complaint.

6. Point No. ii. :- The opposite party has also disputed the maintainability of this complaint on the ground of limitation. Admittedly, the vanilla beans of the complainant was purchased by the opposite party on 26-11-2005 evident from Ext. A1 vanilla option agreement. It is not in dispute that out of the total amount of Rs. 21,835/- the complainant had received only a sum of Rs. 2,183/- from the opposite party on 15-05-2008. According to the opposite party surprisingly they contend that the complainant can claim the price of the balance vanilla supplied by him only on its sale by the opposite party for which they have no contractual evidence. So, the cause of action of the complainant to claim the price of the vanilla beans is continuing in nature and the present complaint is not barred by limitation as contended by the opposite party.

7. Point No. iii. :- Ext. A1 and Ext. B2 are one and the same documents. The above documents go to show that the opposite party had collected 104.400 kgs. of vanilla beans from the complainant and the price fixed was at Rs. 21,835/-. The opposite party contended that the purchase of vanilla beans by the opposite party was strictly in accordance with Ext. B3 vanilla beans procurement condition. However, nothing is on record to show that the opposite party had handed over Ext. B3 to the complainant at the time of purchase of the vanilla beans. In the absence of anything to the contrary, we are of the view that the opposite party failed to convey the terms and conditions to the complainant at the time of contract which squarely holds them responsible for the failure on their part for which they are answerable, especially before a consumer. So, the opposite party is legally and contractually liable to pay the balance price with interest to the complainant as evidenced for reasons stated above.

8. Point No. iv. :- The exemplary effort of the counsel for the opposite party is appreciated and worth commending on by this Forum, but since the primary grievance of the complainant has been met squarely, we order no costs.

9. In the result, we allow the complaint in part and direct that the opposite party shall pay Rs. 19,652/- to the complainant together with interest @ 12% p.a. from the date of complaint till realisation.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order.

Pronounced in open Forum on this the 29^th day of February 2012.

Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Forwarded/By Order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

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