PER MR PREM NARAIN, PRESIDING MEMBER

                The present revision petition no.2194 of 2017 has been filed against the judgment dated 19.04.2017 of the Rajasthan State Consumer Disputes Redressal Commission, Circuit Bench, Bikaner (‘the State Commission’) in Appeal no.34 of 2016.

2.     The brief facts of the case are that the respondent had applied for a shop under the advertisement floated by the petitioner on 12.08.2010. The respondent applied for the same on 08.11.2010. On 30.12.2010 a letter of acceptance was sent by the petitioner to the respondent/ complainant. An agreement was entered on 15.01.2011 between the parties. The complainant deposited the earnest money of Rs.2.00 lakh with the petitioner/ opposite party. On 27.01.2011 a letter was sent by the petitioner/ opposite party to open the shop at the agreed place, however, the complainant did not reply and the petitioner / opposite party vide letter dated 26.05.2011 sent reminder-cum-cancellation notice. After that, the complainant asked for the refund of the earnest money vide letter dated 17.08.2011. As there was no response from the opposite party, a consumer complaint was filed on 27.02.2015 with the District Forum. The petitioner/ opposite party contested the complaint by filing written statement wherein the main contention was that the complainant did not open the shop in the area for which the agreement was done. The District Forum vide its order dated 01.09.2015 allowed the complaint and directed as under:

“Complaint of the complainant is therefore, admitted against the opposite party and following reliefs are granted to the complainant:

The opposite party is ordered to return the Bank Gauarantee of Rs.2.00 lakh to the complainant, deposited by him. If the said guarantee is not returned within one month, then the opposite party shall pay simple interest on Rs.2.00 lakh at the rate of 9% per annum from 27.09.2011 to the date of actual payment.

The opposite party is also ordered to pay Rs.4,000/- to the complainant towards cost of the complaint”.

3.     Aggrieved by the order of the District Forum, the petitioner preferred an appeal before the State Commission being FA no.34 of 2016. The State Commission vide its order dated 19.04.2017 dismissed the appeal.

4.     Hence, the present revision petition.

5.     Heard the learned counsel for the parties and perused the material on record. Learned counsel for the petitioner has stated that filing of this revision petition is mainly on two legal points. The first being that the complainant is not a consumer as he wanted to obtain this shop for commercial purpose to earn more profit. The second legal point raised by the learned counsel for the petitioner is that whether the petitioner has the full authority to forfeit the earnest money as per the provisions of EOI of Franchisee Sales and Distribution Policy 2009, if the conditions of the agreement have been breached. The learned counsel has stated that the District Forum has not accepted the contention of the petitioner that the complainant is not a consumer within the definition given in the Consumer Protection Act, 1986. The fact is that the complainant is already running one shop and earning his livelihood and this shop would have only added to the profit of the complainant. Thus this shop was purely for commercial purpose.

6.     Learned counsel for the petitioner stated that the advertisement was made for Franchisee at location at SGR 06 in Sriganganagar SSA. The respondent was directed to sign the agreement and provide office space of 250 sq ft within fifteen days of issue of LOI.

7.     The view of the complainant is that he had already given the address in the application form and the agreement and therefore, it was contended by him that he was entitled to open the shop at that address only. Learned counsel has mentioned that the address given in the application form or in the agreement is the only address of the complainant but the address where the shop was to be opened was SGR 06 in Sriganganagar SSA.

8.     Thus, because the complainant had breached the conditions of the agreement and even the condition of the allotment, the same was cancelled and the earnest money of Rs.2.00 lakh which was paid by the complainant by way of bank guarantee was forfeited as per the provisions of EOI of Franchisee Sales and Distribution Policy 2009. The provision reads as under:

 “In case the successful franchisee fails to submit the required documents at the time of agreement or does not turn up for agreement within stipulated time or information supplied by bidder found fake at any point of time, the EMD of franchisee shall be forfeited and the consideration for franchisee ship shall be treated as cancelled.”

9.     Learned counsel has further mentioned that condition no. VI of the detailed terms and conditions of the EOI, which reads as under:

“In the event of any breach of any terms and conditions or delay or default, the contract will be terminated and the security deposited will be forfeited by the BSNL.”

10.   On the basis of the above provisions, the learned counsel has stated that once the agreement was cancelled for non-compliance of the condition of allotment, petitioner is entitled to forfeiture of the earnest money of Rs.2.00 lakh. In spite of the clear provisions in the policy of the petitioner, both the fora below have passed concurrent orders which are not legally tenable.

11.   It was further submitted by the learned counsel for the petitioner that the petitioner has already deposited the total amount as ordered by the District Forum along with interest and the same is recorded by the District Forum in its order dated 09.05.2017, which reads as under:

“On behalf of the non-applicants advocate Ajay Mehta has under protest presented cheque along with receipt page, bearing no.194803 dated 06.05.2017 of the sum of Rs.3,05,195/- in favour of the complainant in compliance with the order of this Hon’ble Forum and has requested to give the said cheque to the complainant under protest. Advocate of the complainant has presented the true copy of the order dated 19.04.2017 passed by the State Commission Circuit Bench, Bikaner along with the list. The appeal has been dismissed. Registered notice of the non-applicant no.2 has been returned. Parties be present on 22.05.2017”.

12.   On the other hand, the learned counsel for the respondent / complainant has stated that the petitioner has already complied with the order of the District Forum and has already paid to the complainant as evident from the District Forum’s order dated 09.05.2017.

13.   Both the fora below have given a concurrent finding of fact that the complainant was willing to open the shop within the allotted area, however, before that could happen, the petitioner/ opposite party cancelled the agreement. Thus, the complainant cannot be held guilty of non-compliance of the order given by the petitioner. Learned counsel has further stated that in fact the complainant already had a shop in the area SGR 06 in Sriganganagar SSA, and therefore, it is wrong to say that the complainant did not want to open the shop in the allotted area. In fact, the OP wanted to give this shop to some other person and therefore, the agreement in favour of the complainant was cancelled. The scope under the revision petition is quite limited and this Commission cannot reassess the facts against concurrent findings of facts given by the fora below.

14.   So far as the complainant being a consumer is concerned, the respondent / complainant has stated that the issue has already been settled by the District Forum and it has been held that franchisee was being obtained for earning livelihood by means of self-employment. There is no bar in the Consumer Protection Act, 1986 that a person cannot increase his base for taking up more economic activities to earn more for his livelihood. Thus, clearly the complainant is a consumer.

15.   I have carefully considered the arguments advanced by the learned counsel for the parties and examined the material on record. It is observed that both the fora below have given a concurrent finding of facts that the opposite party/ petitioner did not supply its product to the complainant and tried to pressurise him to open the franchise at some other place. The District Forum has given the following finding:

“8.    On the basis of above analysis, therefore, it is proved that the complainant has made the proposal before the opposite party to sell the products of the opposite party at the address of 6 ‘I’ Block, Sriganganagar, which was accepted by the opposite party. But now the opposite party wants his products to be sold in old population area by the complainant and not on the address of 6 ‘I’ Block, Sriganganagar. This clear violation of contract on the part of the opposite party. The opposite party neither supplying its product to the complainant nor returning his Bank Guarantee deposited by him rather the complainant has been informed in writing that the proceeding is pending. It is a matter of concern that the proceeding is said to be pending on 27.09.2011, for which almost four years have been passed. Hence, the complainant is entitled for return of his Bank Gauarantee”.

16.   The State Commission has agreed with the findings of the District Forum by observing the following:

“The learned District Forum has ordered for return of sum of Bank “Guarantee with interest thereon and cost of the case. There is not any error in the said order, the appeal is liable to be dismissed. Hence, this appeal is hereby dismissed.

Thus, it could be construed that both the fora below have given concurrent finding of fact and this Commission cannot reassess the facts as held by the Hon’ble Supreme Court in Mrs Rubi (Chandra) Dutta vs M/s United India Insurance Co. Ltd., 2011 (3) Scale 654 as follows:

“23. Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums.  The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts.  This is not the manner in which revisional powers should be invoked.  In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed.  It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora.”

17.   Coming to the legal point raised by the learned counsel for the petitioner that the respondent/ complainant is not a consumer, it is seen that the District Forum has examined this issue and has given a clear finding that the franchise was not taken by the complainant for any commercial purpose but was taken only for earning livelihood by means of self-employment, thus he was a consumer. The Hon’ble Supreme Court in Paramount Digital Color Lab & Ors. etc., Vs. Afga India Pvt. Ltd. & Ors. etc. III (2018) CPJ 12 (SC) has held the following:-

“13. Thus, in our considered opinion, each case ought to be judged based on the peculiar facts and circumstance of that case. Whether the assistance of someone is required to handle the machine, is a question of fact and necessity? Ultimately, if it is purely for a “commercial purpose” and not for “self-employment”, the complainant may not get the benefit of the Explanation to Section 2 (1)(d) of the Act. The buyers of the goods or commodities for “self-consumption” in economic activities in which they are engaged would be “consumers” as defined in the Act. Furthermore, there is nothing on record to show that the appellants wanted to use the machine in question for purposes other than “self-employment”.

Therefore, the point to be considered is whether the appellants have purchased the machine in question for “commercial purpose” or exclusively for the purposes of earning their livelihood by means of “self-employment”. There cannot be any dispute that the initial burden is on the appellants to prove that they fall within the definition of “consumer”. It is pertinent to mention that respondent No. 4, who is a contesting party, did not choose to file a counter affidavit before the State Commission. In other words, he did not deny any of the claims made by the appellants. None of the parties have led their evidence. Based on the material on record before the State Commission, it proceeded to decide on merits. As the litigation is being fought since 2006 in different Forums, we do not wish to remand the matter, particularly, when there is sufficient material available on record for arriving at the conclusion.”  

18.   From the above observation of the Hon’ble Supreme Court, it is clear that if the complainant has not mentioned any other purpose in the complaint and nothing contrary has been filed by the OP to prove that the complainant is earning his livelihood from some other source, the complainant would be deemed to have purchased goods in question or service in question for earning his livelihood by means of self-employment. The finding of the District Forum in this regard is fortified by the above observation of the Hon’ble Supreme Court.

19.   Coming to the other legal point raised by the learned counsel for the petitioner, it is seen that ‘if successful franchisee fails to submit the required documents at the time of agreement or does not turn up for agreement within the stipulated time or information supplied by bidder is found fake at any point of time, then the EMD shall be forfeited. In the present case, the agreement is signed on 15.01.2011 and therefore, clearly the first reason is not applicable. Even the second reasons is not attracted in the present case because it is not a case of the petitioner/ opposite party that the complainant has supplied any false information for obtaining the LOI.

20.   Another provision of the policy referred to by the learned counsel for the petitioner is that in the event of any ‘breach of the terms and conditions or delay or default, the contract will be terminated and the security deposited will be forfeited by the BSNL’. It has been contended by the learned counsel for the respondent / complainant that the security deposit of Rs.3.00 lakh was already refunded by the petitioner to the complainant. Clearly, the security deposit is not the earnest money. Learned counsel for the petitioner/ opposite party did not contest this assertion of the complainant. Even in the same policy document, ‘EMD’ and ‘Security Deposit’ are being mentioned at two places. The general understanding would be that these are two different terms with two different meanings. Thus this clause is not applicable in the present case where the question of EMD is involved.

21.   Based on the above discussion, I do not find any illegality, material irregularity or jurisdictional error in the order dated 19.04.2017 passed by the State Commission in FA no.34 of 2016 which calls for any interference from this Commission and accordingly, the revision petition no. 2194 of 2017 is dismissed.