Complainant Baljinder Singh has filed the present complaint against the opposite parties U/S 12 of the Consumer Protection Act (for short, C.P.Act.) seeking necessary directions to the opposite parties to pay Rs.2,92,800/- alongwith interest @ 9% per annum from the date of receipt of produce and issue of voucher till the retaliation of the amount alongwith compensation of Rs.1,00,000/- for causing mental agony and harassment alongwith Rs.50,000/- as litigation expenses.
2. The case of the complainant in brief is that he used to take his agricultural produce to the opposite parties since the time of his father for sale, who in turn used to get the said agricultural produce sold on profitable margin and collect commission for the services rendered by them. The opposite parties had issued voucher/J- forms to him for Rs.2,92,800/- on 18.4.2007. The opposite party did not pay the said amount to him even on several demands. He got an FIR registered against them on 19.4.2011 but then also the opposite parties showed recalcitrant attitude to pay the abovesaid amount. He was engrossed in the litigation and waited for the fate of the case due to which he could not avail any other remedy for recovery of Rs.2,92,800/- from the opposite parties. The case against them was decided on 12.5.2015 by Smt.Baljinder Kaur JMIC, Batala. The opposite parties admitted in the criminal proceedings that the amount of Rs.2,92,800/- is due from them for the crop purchased by them. It is next pleaded that the opposite parties are habitual of cheating the innocent people which is implicit from the judgment passed by the Court of Ms.Gurdarshan Kaur Dhalwial ASJ, Gurdaspur vide order dated 24.9.2015. He has further pleaded that it is clear from the J-forms/vouchers issued by the opposite parties that they collect commission for getting the agricultural produce brought by him marketed in the market. The service that the opposite parties rendered by making sale of the agricultural produce in the open market gets commission for the said service. Therefore, it is clear that the services of the opposite parties are hired for consideration. Hence this complaint.
3. Notice of the complaint was issued to the opposite parties who appeared through their counsel and filed their written reply by taking the preliminary objections that the present complaint is not maintainable in the present form; this Hon’ble Forum has got no jurisdiction to entertain and try the present complaint as the complainant does not fall within the definition of Consumer Protection Act; no cause of action has accrued to the complainant against the opposite parties for filing the present complaint; the complaint is barred by limitation and the complainant has filed the present false complaint by concocting a false story and dragged the opposite party in false litigation as such the complainant is liable to be burdened with special costs. On merits, it was admitted that the opposite parties are commission agent engaged in the business of sale of agricultural produce in the name and style of Ram Lubhaya & Co. There is no relationship of consumer and service provider. It was also admitted that the complainant got registered a false FIR against the opposite party in which the Hon’ble Court had already acquitted the opposite parties. It was denied that opposite parties admitted in the criminal proceedings that the amount of Rs.2,92,800/- was due from them. The complainant might have procured the alleged J forms illegally, malafidely and by way of forgery. As per procedure the opposite party was making payments to its customers with one or two months from the date of purchase and even maximum persons used to take money in advance and settles the same at the time of sale of products and the opposite party uses to retain such records for a period of 3 years and thereafter to destroy the same. As such, nothing is outstanding payment to the complainant against the opposite parties. No services of the opposite parties were hired by the complainant. All other averments made in the complaint has been vehemently denied and lastly prayed that the complaint may be dismissed with costs.
4. Complainant tendered into evidence his own affidavit Ex.C1 and of Sat Pal son of Kunan Singh Ex.C10, alongwith other documents Ex.C2 to Ex.C9 and closed the evidence.
5. Sh.Ramesh Kumar son of Sh.Ram Lubhaya tendered into evidence his own affidavit Ex.OP1 and of Sh.Ashok Kumar Ex.OP2, alongwith other document Ex.OP3 and closed the evidence.
6. We have carefully examined all the documents/evidence as produced on the records of the present proceedings in the backdrop of the arguments as put forth by the learned counsels for both the sides. We find the present litigants have been the old rivals in some past boots of litigations, also. There has been (at least) a mention of 2 nos of criminal complaints one U/s 138 of the NI Act, 1881 and the other U/s 420 of the IPC, 1860 pertaining to the same bunch of transactions (if not exactly for the same cause of action).
7. We are of the considered opinion that before going deep down into the statutory merits of the present complaint it shall be in the best interest of judicious justice if we examine first the statutory pre-requisites pertaining to the ‘maintainability’ of the same.
We propose to examine these issues (raised one by one) as hereunder:
Whether there exists/persists/continues the statutory ‘consumer vis-à-vis service provider’ relationship between the present complainant and the titled opposite party Commission Agent as envisaged under the Act:
Comments: The complainant has been a harvester of agricultural produce and places it for sale through the opposite party commission agent who overdrives the resultant sale to Govt. Agencies purchasers & others etc; collects sales proceeds on complainant’s behalf and makes him the payment after deducting his pre-settled cut termed as: commission. That surely falls within the statutory definition but for ‘commercial purpose’ declaration since the complainant has not deposed/ declared to be engaged in the agricultural profession for earning his livelihood through self-employment and that disentitles the present complaint for adjudication under the Consumer Protection Act’ 1986;
Whether the present complaint is barred by the statutory limitation:
Comments: The complainant has admittedly dated the disputed J-Forms at 18.04.2007 and has also filed the requisite Application U/s 24-A of the Act for condonation of delay of almost 7 years. The complainant has simply deposed that he did not file the consumer complaint waiting for the fate of the criminal case U/s 420 of the IPC, 1860 registered on 19.04.2011 and decided on 19.05.2015. We are not convinced as there has been no legal bar for simultaneous (side by side) statutory proceedings under the Consumer Act and criminal prosecution under the IPC. Moreover, the intervening periods at the start and finish of criminal prosecution have been left-out un-attempted/ ignored to be explained whereas the law demands that the condonation petition must satisfactorily explain the reasons of delay on day to day basis with no period of time left un-explained. Further, the argument as put forth by the counsel for the complainant that ‘cause of action’ has been continuous on recurring basis fails to hold water. The quoted NC judgment in RP # 1199 of 2014 does not help the complainant either since the issue pertains to ‘provident fund’ deposits that are certainly of the different ‘trust a/c’ nature than the proceeds of commercial transactions. We hold that the present complaint is barred by the statutory limitation and is thus the same is not admissible for adjudication under the applicable Act.
8. Thus with the dismissal of the application for ‘condonation of delay’ the principal complaint also gets dismissed. We however set the complainant as well as the opposite party at liberty to pursue/continue with their chosen remedy/line of litigation to its logical end if they so desire or are so advised but in accordance with law and as per the procedure prescribed in law. Here, we are purposefully inclined not to pronounce our findings on merit on the facts in issue lest these may not affect the inter se interests of the contestants in some probable future litigation etc.
9. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.
(Naveen Puri)
President
Announced: (Jagdeep Kaur)
August,04 2016 Member
*MK*
