West Bengal

Paschim Midnapore

CC/145/2013

Sri Dipak Kumar Ghosh - Complainant(s)

Versus

M/s-Rose Valley Industrial Ltd. - Opp.Party(s)

Mr. Debi Prasad Das Mahapatra.

28 Jun 2016

ORDER

 

 

 

 

 

                                                              DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

PASCHIM MEDINIPUR.

                             

Bibekananda Pramanik, President

and

Mrs. Debi Sengupta, Member

   

Complaint Case No.145/2013

                                                       

                                                 Sri Dipak Kumar Ghosh, S/o-Kinkar Prasad Ghosh,

                                                 M/S New Sri Durgha Bhandar, Mahatabpur,        

                                                 Midnapore…………..….……Complainant

                                                                               Versus

1)M/s Rose Valley Industries Ltd., 25/3010, Raghunathpur VIP Road, Kol-700059;

2)Manager,  Rose Valley Group of  Companies,

3)Mr. Sukalyan Banerjee, C.E.O.  of  Industry Division,

       M/s Rose Valley Industries Ltd.,

4)Sri Goutam Kundu, Chairman, M/s Rose valley Industries Ltd.,

5)Mr. Shibamoy Dutta, M.D. Rose Valley Group,    

                                              ..………...........…..Opp. Parties.

 

              For the Complainant: Mr.  Debi Prasad Das Mahapatra, Advocate.

              For the O.P.               : Mr. Mrinal Kanti Chowdhury, Advocate.

 

Decided on: - 28/06/2016

                               

ORDER

                          Bibekananda Pramanik, President – Briefly stated, the materials facts necessary for disposal of this present case are as follows:-

                          Complainant is the dealer/distributor/wholesaler of several companies of grocery products and he is running his said business in his showroom at Mahatabpur,

Contd………………….P/2

 

 

 

 

( 2 )

 Medinipur town.  The complainant has been running his said business for earning of his own livelihood by means of self-employment.  The opposite party no.1 is the public limited company named and styled as “Rose Valley Group” and he proceeds with several businesses for several categories in all districts of West Bengal having it’s head office at Kolkata as well as his Branch Office in Medinipur town.  In the month of January 2011, opposite party no.1 through his the then Chief Executive Officer entered into a business contract with the complainant to promote their products i.e. cookies, spices, salt, packet drinking water, pickles etc under the brand name of “Rose Valley Taste Me”.  In view of the said contract, opposite party no.1 appointed the complainant as his distributor for the jurisdiction of Medinipur town and one deed of agreement for distributorship was also made on 31/01/2011 at Medinipur town in between them.  It was also settled by that agreement that the above mentioned agreement of distributorship will be enforced for any future products of the opposite party-company.  In view of such agreement, the complainant started promoting several products of opposite party no.1.  In the month of April, 2011, one Mr. Sovon Chowdhury, the then area Sales Manager of opposite party no.1 disclosed before the complainant that very soon the opposite party-company will launch it’s new product i.e. tin packed and pouched packed palm oil and requested the complainant to promote said new product in his own area and also directed to place order for the said product.  In view of above mentioned agreement, complainant was compelled to place order for 600 tins packed (15 KG each) and 48 pouch packed (1 litter each) palm oil amounting to Rs.6,00,000/-,  The complainant then sent Rs.2,45,000/- to Rose Valley 1 from his own account being no.0350008700003332 of Punjab National Bank, Midnapore Branch  by RTGS: SD119855843, Rose valley dated 12/04/2011.  Being satisfied with initial payment dated 12/04/2011, the Area Sales Manager of opposite party no.1 acknowledged the order placed by the complainant and issued one hand receipt directing to pay remaining Rs.3,55,000/- by 16/04/2011.  In view of such direction, the complainant sent Rs.90,000/- on 13/04/2011 from the said account of Punjab National Bank by NEFT. Similarly on 18/04/2011, the complainant sent Rs.2,65,000/- from his said account by RTGS. Even thereafter no palm oil has been supplied to the complainant till now.  The complainant therefore requested the local Area Sales Manager as well as all other responsible officers of opposite party no.1 i.e. opposite parties no.2 & 4 for several times but they did not pay any heed to the request of the complainant and no such palm oil was supplied against the above mentioned amount to Rs.6,00,000/-.  It is stated that opposite party no.1 has intentionally and willfully violated the rules / terms of business with the complainant and the said act of the opposite party no.1 and it’s officers are nothing but

Contd………………….P/3

 

 

 

( 3 )

unfair trade practice.  Complainant could earn at least Rs.12,00,000/- from his said business during this period and he has suffered loss in business only due to deficiency in service on the part of the opposite party-company as well as due to deficiency in service of it’s officers i.e. opposite party nos. 2 & 4. On 30/07/2013, the complainant sent a notice through his lawyer to opposite party no.1, 3 to 5 claiming return of said amount with interest.  In spite of receiving said notice, the opposite party did not return the amount till now.  Hence the complaint, praying for directing the opposite parties for payment of Rs.6,00,000/- with interest @12.5 % p.a. and for an award of Rs.12,00,000/- due to loss of his business and for compensation of Rs.1,00,000/-.

           Opposite parties have contested this case by filling a joint written objection.  

                   Denying and disputing the case of the complainant, it is the specific case of the opposite parties that the petition of complaint is barred by limitation and territorial jurisdiction, that the complaint is not maintainable, that all the statements/allegations made in the petition of complaint are not correct and the same are denied and disputed.  It is stated that the complainant is not a consumer in respect of the products of M/s Rose Valley Industries Ltd.  The complainant entered into an agreement/contract for dealership for promoting the products of M/s Rose Valley Industries Ltd. on 31/01/2011 and in the said agreement, the complainant described himself as a businessman of distribution of products of various other companies in the State of West Bengal and it indicates that the complainant entered into an agreement/contract with M/s Rose Valley Industries Ltd. for promoting of it’s aforesaid products in order to expand his own existing dealership business of different other companies and as such it was a commercial transaction and not for contract of initial business for self employment.  It is the specific case of the opposite parties, they do not deal with business of palm oil and it has no product of palm oil and as such there cannot be any acceptance of any order for supply of palm oil and if there be any such acceptance of orders placed by the complainant the same is not genuine one because there cannot be any order for any product beyond the agreement dated 31/03/2011.  The amount of Rs.6,00,000/- was received by opposite party-M/s Rose Valley Industries Ltd. through NEFT and RTGS mentioned in the petition of complaint but the said amount was not for supply/delivery of palm oil but it was for supply of products as mentioned in the agreement dated 31/01/2011.  Accordingly M/s Rose Valley Industries Ltd. supplied through his super distributor “Krishna Electronics” at Jagnutala, Mohatabpur, different products by different invoice numbers, the details of which has been mentioned in Para 14 of the written objection.  In view of supply/delivery of products covered by the aforesaid five invoices by M/s Rose valley Industries Ltd. through its super distributor “Krishna

Contd………………….P/4

 

 

 

( 4 )

Electronics” to the complainant against the aforesaid Rs.6,00,000/- sent by the complainant through RTGS/NEFTS as mentioned in the petition of complaint there can’t be any demand of any sorts against the aforesaid amount of Rs.6,00,000/-.  It is further stated that there is no dues from the opposite party-company against payment of Rs.6,00,000/- made by the complainant.  Further according to the opposite parties, the petition of complaint is not maintainable on the ground of status of the complainant being not a consumer and also is barred by territorial jurisdiction.  Further according to the opposite parties there is no deficiency in service on their part and the petition of complaint is therefore liable to be dismissed.

 

Points for decision

                         1)  Is the complainant a “consumer” under the provision of C.P. Act ?

                         2)  Is the complainant entitled to get the reliefs, as sought for ?    

                   

Decision with reasons

                         For the sake of convenience and brevity, both the above points are taken up together for consideration. 

                        Admittedly, the complainant is the dealer/distributor/wholesaler of several companies of grocery products.  Admittedly, by virtue of a deed of agreement dated 31/01/2011, the complainant entered into a business contact with the opposite party for promoting the products of the opposite party.  Opposite party in their W/O as well as during the cross-examination of P.W.-1, the complainant, has stated that the present complaint is not maintainable due to the status of the complainant  being  not consumer in as much as the entire transaction was out and out for commercial purpose as per agreement dated 31/01/2011.  Although in the initial complaint, the complainant has stated that he is the dealer/distributor/wholesaler of several companies of grocery products but by way of amendment, the complainant has made out a case that he is proceeding his said business for his own livelihood by means of self-employment.  So in view of such statement of the complainant as well as the objection raised regarding the status  of the complainant by the opposite party, let us now considered as to whether the complainant is a consumer or not within the meaning of definition of  “consumer” as defined in C.P. Act.  The definition of the expression “Consumer” in Clause (d) of Section 2 of Consumer Protection Act 1986 excludes from its preview “a person who obtained such goods for resale or for any commercial purpose”.  It would be appropriate to read the definition of “consumer” at this stage.  “Consumer” means as defined in Section 2(d) “any person who buys any goods for a

Contd………………….P/5

 

 

 

 

( 5 )

consideration which has been paid or promised or partly paid and 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”.  So in view of the said definition a person is not a consumer if he obtains such goods for resale or for any commercial purpose.  Explanation of Section 2(d) contemplates that “for the purpose of this clause, ‘commercial purpose’ does not include use by a person of goods brought and use by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment”.  We have already stated that admittedly the complainant is a dealer/distributor/wholesaler of several companies.  According to the complainant he is proceeding the said business for earning his own livelihood by means of self-employment.  From Exhibit-1 which is a deed of agreement dated 31/01/2011 for distributorship in between the complainant and the opposite party, we find that in the said agreement, the complainant has admitted that he is doing business of distribution of products of various other companies in the State of West Bengal and he has approached the opposite party-company for appointing him as the distributor of the products of the opposite party-company, the brand name of which is “Rose Valley Taste Me”.  In his cross-examination, the complainant as P.W-1 has admitted that he has trade relationship with other organization. It thus appears that before entering into this agreement for distributorship (Exhibit-1) with the opposite party-company in connection with the dispute of this case, the complainant was doing business of distribution of products of various companies.  In that view of the matter it cannot be held that the complainant has entered into business contact with the opposite party-company by virtue of the present agreement (Exhibit-1) for the purpose of earning his own livelihood by means of self-employment as because before entering into this business contact with the opposite party the complainant had been proceeding with his business as dealer/distributor of several other companies.  We thus find that the complainant has entered with that agreement for distributorship (Exhibit-1) with the opposite party-company for commercial purpose. So the complainant cannot get the benefit of explanation clause of Section 2(d) of the C.P. Act.  It is therefore held that the complainant is not a “consumer” within the meaning of Section 2(d) (i) of C.P. Act and the  complaint is therefore not maintainable before this Forum and the petition of complaint is therefore liable to be dismissed.

 Both the points are accordingly disposed of.    

 

Contd………………….P/6

 

 

 

 

 

 

( 6 )

 

                                                  Hence, it is,

                                                     Ordered,

                            that the complaint case no.145/2013  is hereby dismissed on contest but in the circumstances without cost.

                               Let plain copy of this order be given to the parties free of cost.

 

             

Dictated and Corrected by me

      Sd/-B. Pramanik.                                 Sd/- D. Sengupta.                             Sd/-B. Pramanik. 

               President                                            Member                                         President

                                                                                                                           District Forum

                                                                                                                         Paschim Medinipur