DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE

PRESENT: Sri. P.C. PAULACHEN, M.Com, LLB    : PRESIDENT

Smt. PRIYA.S, BAL, LLB, MBA (HRM) :  MEMBER

Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER

Thursday the 24^th day of October 2024

CC.125/2006

Complainant

Nandakumar. V.M,

S/o. Sadanandan. V.M,

Velarambath House,

Mankavu. P.O, Azchavattam,

Calicut - 673007

(By Adv. Sri. Sabu Ann Joseph)

Opposite Party

Nandan Argo Farms Pvt. Ltd,

6-3-1113/2,

Point of View Towers,

Lane Adj. to Blue Moon Hotel,

Begumpet, Hyderabad.

-Now known as-

M/s. Nandan Biomatrix Ltd,

Meenakshi House, 5^th Floor,

Road No. 7, Banjara Hills,

Hyderabad, Andhra Pradesh – 500034

(New name and address of opposite party added in the cause title as per order dated 26/09/2024 in IA No. 423/2024)

ORDER

By Sri. P.C. PAULACHEN  – PRESIDENT.

            This is a complaint filed under section 12 of the Consumer Protection Act, 1986, alleging unfair trade practice and deficiency of service on the part of the opposite party.

2. The case of the complainant, in brief, is as follows;

The complainant is an agriculturist/farmer and the opposite party is engaged in the marketing of‘Safed Musli’, a medicinal crop. During the year 2003, the opposite party vide advertisements, features, seminars etc. gave wide publicity about the potential of the medicinal plant Safed Musli and made the farmers believe that they were ready to supply safed musli seed material and also to buy back the crop at a very attractive price. They also convinced the farmers that all technical assistance and guidance for the cultivation would be provided at the site.

3. The complainant, induced by representation of the opposite party especially about their guarantee to buy back the crop and believing the promise was ultimately provoked to purchase the seeds of safed musli from the opposite party and also provide his land for its cultivation. Accordingly, on 28/12/2003 the complainant entered in to a tripartite agreement with the opposite party and their franchisee M/s Herbz India, Calicut. As per the agreement, the complainant after paying Rs. 3,00,000/- to the opposite party through its franchisee, purchased 750 kg safed musli seed and cultivated in his land.
4. The opposite party as per the agreement was bound to buy back dry musli at a minimum price of Rs. 1000/- per kg. But the opposite party failed to set up its processing facilities in time and did not buy back dry musli from the complainant. The opposite party finally agreed to buy back wet musli at the rate of Rs. 200/- per kg up to the quantity that the complainant had purchased from the opposite party, provided the complainant was prepared to continue the cultivation during the year 2005 also. This promise was further confirmed vide letter dated 14/04/2005 which became part of the original agreement.
5. After informing  the complainant’s intention to continue the cultivation, the opposite party had collected 625 kg of wet musli on 25/05/2005 whereas they were bound to buy back minimum 750 kg. It was promised that the balance 125  kg would be taken delivery within 2 weeks. But they did not keep their word and thus the balance preserved wet musli started perishing day by day. The opposite party did not take any positive steps in this regard in spite of repeated requests.  The complainant has sustained a loss of Rs. 25,000/- being the cost of 125 kg of balance wet musli at the rate of Rs. 200/- per kg, on account of the latches and negligence of the opposite party. The above acts of the opposite party tantamount to unfair trade practice and deficiency of service.  The complainant had to suffer intense mental agony. The opposite party is liable to compensate the complainant to the extent of Rs. 25,000/-  being the cost of balance 125 kg of wet musli and to pay Rs. 20,000/- as compensation for the unfair trade practice, deficiency of service and mental agony. Hence the complaint.
6. The opposite party, in their written version, has contended that the complaint is not maintainable for the reason that the complainant is not a consumer and the transaction is for commercial purpose. It is also contended that there is arbitration clause in the agreement and the matter has to be referred to the arbitrator, for which, the opposite party had already initiated steps. Further, the plea of non-joinder of necessary parties is also raised for the reason that the franchisee is not made a party to the proceedings.
7. Further it is contended that this Forum lacks territorial jurisdiction to entertain the complaint. The complainant has suppressed material facts and  is trying to force the opposite party to purchase wet musli. The opposite party was always ready and willing to purchase dry musli. The opposite party offered buy back fungal free sowable wet material to the extent of purchased material  provided the complainant is interested to go for cultivation during the next year, but the complainant did not turn  up till this day for the said offer and he filed the present complaint with ulterior motives.  It is not correct to say that the opposite party had taken 625 kg of wet seed and had agreed to collect the balance within 2 weeks. The complainant is not entitled to realise any amount as claimed in the complaint. There is no breach of contract, negligence or deficiency of service on the part of the opposite party. According to the opposite party, the present complaint, which has been filed in collusion with the franchisee, is devoid of merits and liable to be dismissed.  
8. This complaint was once dismissed by our learned predecessors-in-office as per order dated 31/10/2006 holding that the complaint is not maintainable since the complainant was not a ‘Consumer’ within the meaning of Section 2(d) of the Consumer Protection Act, 1986. In the  appeal preferred by the complainant, the Honourable Kerala State Consumer Disputes Redressal Commission set aside the order  holding that the complainant is a ‘Consumer’ under the Consumer Protection Act, 1986 and remanded the matter for disposal on merits. The order of the Honourable State Commission was challenged by the opposite party before the Honourable National Consumer Disputes Redressal Commission by way of Revision Petition. The Revision Petition was dismissed by the Honourable National Consumer Disputes Redressal Commission. Thereafter, the opposite party approached the Honourable Supreme Court by filing Civil Appeal which also ended in dismissal and it was directed by the Honourable Supreme Court to hear and decide the complaint within a period of 3 months from the date of receipt of copy of the judgment.  Subsequently, copy of the decree was received in this Commission. This is how this complaint once again comes up for consideration before this Commission. 
9. Notices were issued to both the parties and their counsels from this Commission.    Adv. Sri. Sabu Ann Joseph filed vakkalath for the complainant. Notice to the opposite party was returned with the report ‘left’ and the opposite party was not represented. The learned counsel for the complainant was instructed by this Commission to make enquiry and apprise this Commission about the existence or otherwise of the opposite party company. The learned counsel filed a report to the effect that the opposite party company had changed the name and the computer generated print of the company information from the official website of the Ministry of Corporate Affairs was also produced. The complainant filed IA No. 423/2024 to add the new name and address of the opposite party in the cause title. IA No. 423/2024 was allowed and the new name and address of the opposite party was added in the cause title. Thereupon this Commission issued notice in the new name and address of the company which was delivered to the addressee on 01/10/2024.  But the opposite party remained absent.
10. The points that arise for determination in this complaint are;

1. Whether the complaint is maintainable?
2. Whether this Commission has territorial jurisdiction to entertain the complaint?
3. Whether the complaint is bad for non-joinder of necessary parties?
4. Whether there was any unfair trade and business practice or deficiency of service on the part of the opposite party, as alleged?
5. Reliefs and costs.

11. Evidence consists of the oral evidence of PW1 and Exts A1to A3 on the side of the complainant. As already stated, the opposite party chose to remain absent.
12. Heard.
13. The original complaint in this case is missing and irrecoverably lost and the same was reconstructed with copy as per the sanction of the Hon’ble State Commission –vide letter No. KSCDRC/173/2024–B dated 18/10/2024.   
14. Point No 1:    As already stated, the question whether the complainant is a consumer or not is finally settled by the Honourable Apex Court in Civil Appeal Nos. 7357-7376 of 2010 holding that the complainant is a consumer as contemplated under section 2(1)(d) of the Consumer Protection Act, 1986.
15. Another plea taken in the written version of the opposite party is   regarding the arbitration clause in Ext A1  agreement. This plea was considered by our learned-predecessors-in-office in the Common Order dated 31/10/2006 and found against the opposite party. The said finding is not seen challenged. Moreover, it is in evidence that the opposite party had invoked the arbitration clause in Ext A1 and obtained an award in their favour and subsequently it was set aside by the court. So the plea regarding the non-maintainability of the complaint for not exhausting the remedy through the arbitrator under Clause 16 of Ext A1 is out of question.   
16. Point NO.2:- Another contention of the opposite party is that this Commission lacks territorial jurisdiction to entertain the complaint.
17. Section 11 of the Consumer Protection Act, 1986,  inter alia, provides that a complaint shall be instituted in a District Forum within the local limits of whose jurisdiction, the opposite party resides or carries on business, or personally works for gain, or where the cause of action, wholly or in part arises. It is settled law that the cause of action is a bundle of facts which taken with the law applicable, gives the aggrieved party a right to relief. It may be noted that the present complaint is based on Ext A1 MOU.  In this case the MOU dated 28/12/2003 is seen executed at the office of the franchisee of the opposite party M/s Herbz India Pvt Ltd at Calicut and hence part of the cause of action has arisen within the jurisdiction of this Commission. Hence we find that this Commission has territorial jurisdiction to entertain the complaint.
18. Point NO.3 :- The opposite party has taken a contention in the written version  that the complaint is bad for non-joinder of necessary parties since the franchisee M/s Herbz India, Calicut  is not made a party to the proceedings.
19. In this Connection, it may be noted that our learned-predecessors-in-office had dismissed the petition filed by the opposite party as IA No. 145/2006  to implead the franchisee as a party to the proceedings - vide order dated 28/07/2006. The said order is not seen challenged. Moreover, the complainant has not raised any grievance against the franchisee and no relief is sought against them in the complaint.  For the above stated reasons, we are of the view that it is not necessary to add the franchisee as a party to the proceedings. The complaint is not bad for the non-joinder of necessary parties.
20. Point No.4:-  The complainant has approached this Commission seeking compensation from the opposite party due to the breach and deficiency committed by the opposite party.  The gist of the complaint is that the complainant, who is a small holder of land, lured and carried away by the advertisement and representations of the opposite party during  2003  regarding buy back of safed musli at attractive prices, entered into a tripartite agreement on 28/12/2003 with the opposite party and its franchisee M/s Herbz India, Calicut, pursuant to which, the complainant purchased 750 kg of safed musli seed for sowing, from the opposite party  and cultivated the same in his land. As per   the MOU, the opposite party was bound to buy back the produce at the rate of    Rs. 1000/- from the complainant. However, the opposite party failed to set up its processing facility in time and did not buy back dry musli from the complainant. Finally, the opposite party agreed to buy back wet musli at the rate of Rs. 200/- per kg up to the quantity the complainant had purchased from the opposite party, provided he was ready to continue the cultivation during 2005 also and this promise was further confirmed as per letter dated 14/04/2005. The complainant after informing the opposite party continued the cultivation during 2005 also. The opposite party, who was bound to buy back 750 kg of wet musli from the complainant, had taken delivery of only 625 kg on the promise that the balance 125 kg would be taken delivery without delay. But that was not done and the entire produce perished. Attributing unfair trade and business practice and deficiency of service, the complainant has approached this Commission with the present complaint claiming an amount of Rs. 25,000/- as compensation towards cost of 125 kg of wet musli which the opposite party had failed to take back as promised and compensation to the tune of Rs. 20,000/- for the mental agony and hardship suffered on account of the unfair trade practice and deficiency of service of the opposite party.  
21. PW1, who is none other than the complainant,  has filed proof affidavit and deposed in  terms of the averments in the complaint and in support of the claim. Ext A1 is the copy of the MOU dated 28/12/2003, Ext A2 series are the copies of the payment receipts and Ext A3 is the copy of the letter dated 14/04/2005. Ext A1 would prove the existence of an understanding that the opposite party would buy back dry musli at a minimum price of Rs. 1000/- per kg. Further Ext A3 dated 14/04/2005 indicates that from the farmers who were interested to go for cultivation during the next year, the opposite party had agreed to buy back fungal free sowable wet musli to the extent up to the quantity they had purchased.
22. The evidence of PW1 stands unchallenged. Though the opposite party had initially filed written version disputing and denying all the allegations and claims made in the complaint and contending that the present case is a high handed hatched conspiracy in collusion with the franchisee M/s Herbz India, they remained absent and did not cross examine PW1 or let in any evidence in support of the contentions in the written version. The evidence of PW1 remains uncontroverted.  There is no cross examination or contra evidence to disprove the claim of the complaint.  The opposite party has not adduced any evidence to disprove the averments in the complaint or to rebut the veracity of the documents produced and marked on the side of the complainant.   The case of the complainant stands proved through the testimony of PW1 and Exts A1 to A3 documents.
23. The buyback promise as per Ext A1 was not fully honoured by the opposite party and there was failure to provide services to the complainant as promised. By not taking back dry musli and the further neglect to buy back  the wet musli as promised and by not providing services to the complainant as agreed, the opposite party has indulged in unfair trade and business practice and the same  amounts to deficiency of service also. About 125 kg of wet musli happened to be perished and destroyed due to the latches and default of the opposite party and the said loss and injury sustained by the complainant is attributable only to the unfair trade practice and deficiency of service of the opposite party. The complainant is entitled to realise an amount of Rs. 25,000/- as compensation from the opposite party towards the cost of 125 kg of wet musli which the opposite party had failed to take back as promised. Undoubtedly, the complainant was put to intense mental agony and inconvenience due to the irresponsible attitude and conduct of the opposite party, for which, he is entitled to be compensated adequately. Considering the entire facts and circumstances, we are of the view that the claim for compensation of Rs. 20,000/- in this regard is just and reasonable.  The complainant is also entitled to get Rs. 5,000/- as cost of the proceedings.
24. Point No. 5:- In the light of the finding on the above points, the complaint is disposed of as follows;
    1. CC.125/2006 is allowed.
    2. The opposite party is hereby directed to   pay a sum of Rs. 25,000/- (Rupees twenty five thousand only) as compensation to the complainant towards the cost of 125 kgs of wet musli which the opposite party had failed to take back as promised.  
    3. The opposite party is directed to pay a sum of Rs. 20,000/-(Rupees twenty thousand only) to the complainant as compensation for the mental agony, inconvenience and hardship suffered.
    4. The opposite party is directed to pay a sum of Rs. 5,000/- (Rupees five thousand only) as cost of the proceedings to the complainant.
    5. The payment as afore stated shall be made within 30 days of the receipt of copy of this order, failing which, the amount of Rs. 25,000/- shall carry an interest of 9% per annum from the date of this order till actual payment.

Pronounced in open Commission on this, the 24^th day of October, 2024.

Date of Filing:   29.03.2006

                                       Sd/-                                                                Sd/-                                                            Sd/-

                               PRESIDENT                                                      MEMBER                                                MEMBER

APPENDIX

Exhibits for the Complainant :

Ext A1 - Copy of the MOU dated 28/12/2003.

Ext A2 series – Copies of the payment receipts.

Ext A3 - Copy of the letter dated 14/04/2005.

Exhibits for the Opposite Party

NIL

Witnesses for the Complainant

PW1  -  Nandakumar. V.M (Complainant).

Witnesses for the Opposite Party

Nil

                                     Sd/-                                                                Sd/-                                                            Sd/-

                               PRESIDENT                                                      MEMBER                                                MEMBER

True Copy,      

                                                                                                                                                        Sd/-

                                                        Assistant Registrar.