Complaint No: 154 of 2020.
Date of Institution: 04.12.2020.
Date of order:12.10.2023.
M/s Shree Bala Ji Trader, PUDA Market, Opposite Happy Senior Secondary School, Beside Hotel Food Planet, Jail Road, Gurdaspur, through its proprietor Sh. Ramesh Chander. Pin Code - 143521.
......Complainant.
VERSUS
1. M/s KC Lifestyle Agencies, having Head Office at Wholesale Textile market Aggarsain Chowk, Ambala City, through its authorized signatory. 134003
2. M/s KC Lifestyle Agencies, having Work Office at Manali House, Sector 1, Ambala, Haryana - 134003, India, through its authorized signatory.
3. Ankit Kumar, Distributor / authorized signatory of M/s KC Lifestyle Agencies, Work Office at Manali House, Sector 1, Ambala, Haryana. 134003
4. Raymond Showroom, Opposite State Bank of India, Hanuman Chowk, Gurdaspur, through its Manager. 14352/
5. Raymond Limited, New Hind House, Narottam Morarjee Marg, Ballard Estate, Mumbai - 400001, Maharashtra, India, through its Chairman and MD.
.....Opposite Parties.
Complaint u/s 35 of the Consumer Protection Act.
Present: For the Complainant: Sh.Manoj Loomba and Sh.Aseem Mahajan, Advocates.
For the Opposite Parties No.1 to 3: Sh.Ramesh Kumar Kashyap, Advocate.
Opposite Parties No.4 & 5: Exparte.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Ramesh Chander, (Proprietor of M/s Shree Bala Ji Trader), Complainant (here-in-after referred to as complainant) has filed this complaint under section 35 of the Consumer Protection Act, (here-in-after referred to as 'Act') against M/s KC Lifestyle Agencies etc. (here-in-after referred to as 'opposite parties).
2. Briefly stated, the case of the complainant is that the complainant is retired from Milkfed Punjab and from his retirement benefits and saving he started his business of readymade garments under the name and style of M/s Shree Bala Ji Trader, Gurdaspur for his and his family's livelihood and he entered into an agreement with O.P No.1 and 2 and signed the memorandum of understanding and invested his all savings as per MOU with the firm O.P No. 1 and 2 for next look brand (Raymond apparel ltd.) that the representative of O.P. No. 1 and 2 and O.P No. 4 and 5 visited the shop premises of him and clarifies the categories of format of business. It is further pleaded that the MOU were not according to the promises made by OP's and when he objected, the OP's gave assurance that they will fulfill their all promises and business will be done between them. It is further pleaded that O.P. No.2 started supplying stock in the month of June 2019, but the stock was not according to the MOU. It is further pleaded that as a matter of fact, it was agreed between the parties as memorandum on the deposit of Rs.5 lacs as security, the stock of Rs.12 to 15 lacs will be provided, but they did not supplied upto the agreed amount and full variety of Next Look Brand. It is further pleaded that the stock supplied to him was damaged and most of the packages were torn and in dusty condition which totally put the bad impression on the customers and the stock supplied seems to be old one and was not as per the standard. It is further pleaded that he informed about these facts to the concerned officials of O.P's, but they did not give any satisfactory reply. It is further pleaded that when he requested them to recall back the non-moving/ slow moving material supplied by them through mails, then they did not respond to the mail sent by him. It is further alleged that the OP's have completely violated the MOU and he has suffered loss due to damaged material supplied by them and they have also refused to provide benefits as per the conditions mentioned in MOU and O.P’s did not sent winter collection as promised, as such he suffered huge loss of business and the winter collection were not supplied by the OP's and the whole material supplied by the OP's could not be sold, due to the bad condition of the stock and he sold only 95 pieces in the month of August 2019 at gross MRP value of Rs.1,07,405/- and deposited Rs,53,367/- in the account of O.P No.2, but O.P. No.1 and 2 also refused to provide customer discount as per offer on seasonal sale and started demanding Rs.37,749/- which is also violation of MOU. It is further pleaded that due to the deficiency of services of opposite parties he suffered monitory loss of Rs.19,78,569/- (Nineteen Lac seventy eight thousand five hundred and sixty nine only). It is further pleaded that due to this illegal act and conduct of the opposite parties the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. It is further pleaded that there is a clear cut deficiency in services on the part of the opposite parties.
On this backdrop of facts, the complainant has alleged deficiency in services and unfair trade practice on the part of the opposite parties and prayed that the necessary directions may kindly be issued to the opposite parties to pay total amount of Rs.19,78,569/- (Nineteen Lac seventy eight thousand five hundred and sixty nine only) alongwith 9% interest to the complainant, in the interest of justice.
3. Opposite parties did not appear despite the service of notice and were proceeded against exparte vide order date 12.02.2021 and after that as per orders dated 10.01.2023 and 17.01.2023 passed by the Hon’ble State Commission, Punjab Chandigarh, Sh.Rohit Malik Advocate has appeared on behalf of opposite parties No.1 to 3 but no one has appeared on behalf of opposite parties No.4 and 5 and they remained exparte.
4. Upon appearance as per above orders the opposite parties No.1 to 3 appeared through Sh.Rohit Malik, Advocate and contested the complaint by filing written reply. In their joint written reply, the opposite parties raised legal objections that the opposite parties No.1 to 3 deny each and every averments and allegations made in the complaint, save and extent to what is specifically admitted hereinafter. It is further pleaded that each and every allegations and statements made against the OP’s in the complaint not expressly admitted herein shall be deemed to have been specifically denied by the OP’s. It is further pleaded that complainant has suppressed material facts from this Hon’ble District Commission, while at the same time misleading Hon'ble District Commission, Gurdaspur and the complaint is liable to be dismissed on this ground alone. It is pleaded that the instant complaint is false and vexatious and an attempt to malign the reputation of the OP’s. It is further pleaded that even otherwise, the complaint is bad in law and not maintainable in the present form and needs to be dismissed and rejected out rightly. It is further pleaded that the complainant has not come to this Hon'ble Commission with clean hands as he has concealed material facts and produced frivolous documents to grab easy money from OP’s with ulterior motives. It is further pleaded that complainant is not maintaining good faith while pursuing the present case with the answering OP’s, and the matter involves disputed material facts and the same needs elaborate evidences and cross examination etc. by both the parties, hence the complainant cannot be tried and decided by The Hon'ble Consumer Commissions and same needs to be transferred to the Civil Courts for proper adjudication of the matter. It is further pleaded that the claim petition is not maintainable before this Hon'ble Commission and liable to be dismissed. It is further pleaded that even while looking at the title or the complaint namely M/s Balaji Trader Vs. M/s K.C Lifestyle Agencies & Others, one can easily infer that the title of the suit itself depicts, both the parties are involved in business activities, which are commercial in nature and for profit making. It is further pleaded that the complainant has no locus standi to file the present complaint and same needs to be dismissed. It is further pleaded that above fact is apparent from a copy of registration certificate of Shri Balaji Trader (depicting GST No.) and PAN card which is in the name of Varun Mahajan, who has been enrolled and holding the position of proprietor in Shri Balaji Trader, while on the contrary the complaint has been filed by the complainant Mr. Ramesh Chander, representing himself to be proprietor of M/s Shree Balaji Trader, thus the above representations stands in contradiction to each other. It is further pleaded that the complainant has mislead, and wasted the valuable time of this Hon'ble Commission, by falsely representing himself to be a Proprietor of the Proprietorship firm, Shree Balaji Trader in the Memo of parties in the present complaint, henceforth this complaint needs to be dismissed abintio on this ground alone. It is further pleaded that the complaint the complainant does not falls under the definition of Consumer U/s 2(1) d of the Consumer Protection Act 2019 as amended up to date. It is further pleaded that there is no relation of Consumer and Service provider between both the parties, as the transaction which has occurred between both the parties is of commercial nature, moreover the OP’s are authorized distributor of Raymond apparels and complainant had agreed to open a Next Look apparel store (one of the brand of Raymond’s) by virtueof MOU signed between OP No. 1 and complainant, as complainant have admitted in the complaint, they were appointed by the OP’s as Dealers of Raymond Apparel Ltd under an agreement / MOU for selling Next look brand. It is further pleaded that the complainant does not fall under the definition of 'Consumer' by any means or U/s 2(7) (i) of The Consumer Protection Act 2019 and had purchased goods for "commercial Purpose". It is further pleaded that it was the legislative intent for excluding goods purchased for resale or for any commercial purpose from the definition of the word 'Consumer'. The Hon'ble National Commission had held in Sync Textiles Private Limited vs. Greaves Cotton & Co. Ltd. 1(1991) CPJ 499 (NC), that going by the plain dictionary meaning of the words used in the definition section the intention of Parliament must be Understood to be to exclude from the scope of the expression 'consumer' any person who buys goods for the purpose of their being used in any activity engaged on large scale for the purpose of making profit. It is further pleaded that Parliament wanted to exclude from the scope of the definition not merely persons who obtain goods for resale but also those who purchase with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit. It is further pleaded that on this interpretation of the definition clause, persons buying goods either for resale or for use in large scale profit making activity will not be “Consumer” entitled to protection under the Act.
On merits, the opposite parties No. 1, 2 and 3 have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in services on the part of opposite parties. In the end, the opposite parties prayed for dismissal of complaint with costs.
5. Learned counsel for the complainant has tendered into evidence affidavit of Ramesh Chander, (Complainant), (Proprietor of M/s Shree Bala Ji Trader) as Ex.C-1/A alongwith other documents as Ex.C-1 to Ex.C-17.
6. Learned counsel for the opposite parties No.1 to 3 has tendered into evidence affidavit of Sh. Ankit kumar, (Authorized Person / Representative of KC Lifestyle Agencies, Haryana) as Ex.OPW-1,2,3/A alongwith other documents as Ex.OP1 to Ex.OP5.
7. Opposite parties No.4 and 5 remained exparte.
8. Rejoinder not filed by the complainant.
9. Sh.Ramesh Kashyap Advocate had appeared on behalf of opposite parties No.1 to 3 on 25.09.2023 and filed vakalatnama.
10. Written arguments filed by the complainant and opposite parties No. 1 to 3.
11. Counsels for the complainant has argued that complainant had started business of readymade garments under the name and style of M/s Shree Bala Ji Trader for his and his family's livelihood and he entered into an agreement with opposite parties No.1 and 2 and signed the memorandum of understanding and invested his all savings as per MOU with the opposite parties No.1 and 2 for next look brand. It is further argued that opposite parties No.1,2,4 and 5 visited the sop of the complainant and clarified the categories of format of business. It is further argued that opposite party No.2 started supplying stock in the month of June, 2019 but stock was not according to MOU. It is further argued that on deposit of Rs.5 lacs as security, the stock worth Rs.12 to 15 lacs was to be supplied but the opposite parties did not supply the stock upto the agreed amount and also failed to supply full variety of next look brand. Even the stock supplied was damaged and most of packages were torn and in dusty condition. It is further argued that when complainant requested the opposite parties to recall back the non moving/slow moving material supplied by them the opposite parties refused to do so on account of which complainant suffered huge losses. It is further argued that due to deficiency in service on the part of the opposite parties complainant has suffered of Rs.19,78,569/-.
12. On the other hand counsel for the opposite parties No.1 to 3 has argued that the present complaint is not maintainable before this Commission as the transactions which took place between the parties were commercial in nature and the complainant had been earning profit out of the same and as such case of the complainant does not fall under the definition of 'Consumer' and has also relied upon the judgment of Hon'ble National Consumer Disputes Redressal Commission, New Delhi reported in Synco Textiles Private Limited Vs. Greaves Cotton & Co. Ltd. 1(1991) CPJ 499 (NC) in which it is held as under:-
"That going by the plain dictionary meaning of the words used in the definition section the intention of Parliament must be understood to be exclude from the scope of the expression 'consumer' any person who buys goods for the purpose of their being used in any activity engaged on large scale for the purpose of making profit. It thus obvious that Parliament wanted to exclude from the scope of the definition not merely persons who obtain goods for resale but also those who purchase with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit. On this interpretation of the definition clause, persons buying goods either for resale or for use in large scale profit making activity will not be 'Consumers' entitled to protection under the Act". And prayed for dismissal of the complaint.
13. We have heard the Ld. counsels for the complainant and opposite parties No.1 to 3. It is admitted fact that memorandum of understanding was signed between the complainant and opposite parties No.1 and 2 and certain disputes aroses between the parties regarding non supply and supply of defective material. However, without going into the merit of the case we would like to go through the definition of word 'Consumer' as given in the Consumer Protection Act, 2019. As per section 2 (7) "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 good 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; or
(ii) hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promises, or under any system of deferred payment and includes any beneficiary of such service 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 of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose".
14. From the above discussion and by relying upon the judgments of Hon'ble National Commission, New Delhi we are of the view that since the complainant has been running business of readymade garments and memorandum has been signed between the complainant and opposite parties No.1 and 2 and the dispute between the parties is regarding non supply of material as per MOU and supply of defective material and the matter involved revolves around commercial transactions which took place between both the parties. As such complainant cannot take shelter and maintain his complaint before this Commission by writing a single line for earning livelihood. As such since the relation between the complainant and opposite parties is purely business to business relation and the transaction clearly comes within ambit of commercial purpose and it cannot be said that services availed by the complainant were exclusively for purpose of earning his livelihood by means of self employment.
15. As such we do not find any merit in the present complaint and accordingly the present complaint is dismissed with no order as to costs for want of jurisdiction. However, complainant is at liberty to approach appropriate court of` law. Application for dismissal of complaint which is pending in this case is also disposed off accordingly.
16. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
17. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record room.
(Lalit Mohan Dogra)
President
Announced: (B.S.Matharu)
Oct. 12, 2023 Member
*YP*
