(Passed on 08.03.2013)
Per Mr S M Shembole, Hon’ble Presiding Member
These appeals impugn the judgement & orders dtd.16.11.1999 passed by District Consumer Forum, Gadchiroli, partly allowing the Consumer Complaint Nos. in CC/98/31, 32, 33, 34, 37 & 38 directing the appellants / o.p. to pay to the complainants cost of the paddy seeds with interest, etc.
(For the sake of brevity appellant is hereinafter referred as “the o.p.” and respondent as “the complainant.”)
As the common issue is involved in all these appeals and the o.p. is common, we have decided to dispose of all these appeals by this common judgement.
Brief facts giving rise to these appeals are that:-
1. Complainants are agriculturists and the o.p. is the producer and seller of seeds including paddy seeds. In the month of Jan. 1997 there was agreement for Hybrid Paddy Seed Production between the o.p. and the complainants. It was buy-back agreement. As per the agreement the o.p. to supply foundation seeds of paddy to the complainants and the complainants agreed to sell the seeds to the o.p. @ Rs.2,700/- per quintal subject to satisfaction of genetic purity and germination test report. As per the agreement the complainants were supplied foundation paddy seeds by the o.p. and the complainants sown it in their respective fields. After harvesting the paddy crop the complainants were ready to sell the same to the o.p. but the o.p. refused to purchase the same at the agreed price. Therefore, the complainants have filed separate Consumer Complaints.
2. The o.p. resisted the complaints by its Written Statements, raising preliminary objection about the maintainability of the Consumer Complaints. It is contended that since it were buy-back transactions, the complainants do not fall under the category of consumers as per Sec. 2(1)(d)(ii) of Consumer Protection Act 1986 (hereinafter referred as “the Act”). It is contended that all the transactions between the parties are being commercial transactions, Consumer Complaints are not maintainable.
3. Further it is contended by the o.p. that though the transactions, in question, took place at Gadchiroli, it was agreed by the parties that any disputed which would arise, would be within the territorial jurisdiction of Jalna Court and therefore, the Forum has no territorial jurisdiction, etc.
4. It is not disputed that there was buy-back agreement between the parties and the o.p. agreed to purchase the paddy seeds produced by the complainants by sowing foundation seeds, which were supplied by it. The agreed rate of purchase i.e. Rs.2,700/- per quintal is also not disputed. But it was subject to genetic purity and germination test. It is also not disputed that the o.p. was ready to purchase the paddy seeds and also purchased the same from the complainants but not at the agreed rate as the seeds were not up to the agreed purity test. It is submitted to dismiss the complaint.
5. On hearing both the sides and considering the evidence on record the President of the forum held that the Consumer Complaints are not maintainable as the complainants do not fall under the category of consumer of the o.p. Since it is buy-back transaction, it is not a consumer dispute, etc and therefore, dismissed the complaints vide his judgement & order dtd.16.10.1999.
6. However, other two Members of the Forum did not agree with the findings recorded by the President and by their separate impugned judgements partly allowed the complaints merely on the ground of natural justice without assigning any reasons.
7. Feeling aggrieved by those judgement & order of the Members of the Forum the o.p has preferred these separate appeals.
8. We heard Mr P Khubalkar, Ld. Counsel for the o.p., perused the Written Notes of Argument submitted by him and also perused the copy of impugned judgement & orders and also copies of judgement & orders passed by the President of the Forum, so also copies of complaints, Written Versions, agreements and other documents. However, we have had no opportunity to hear the complainants as they remained absent and the appeal came to be proceeded exparte.
9. It is submitted by Adv. Mr Khubalkar that since the transactions, in question, are based on buy-back agreements the complainants do not fall under the category of consumer as per Sec. 2(1) (d) (ii) of the Act and further since the complainants have agreed to produce the seeds and sell it to the o.p. it amounts commercial transaction as per Sec. 2(1)(d)(ii) of the Act. He has also supported his submission by relying on the decision of this Commission in the case of Maharashtra Hybrid Seed Co Ltd Vs. Sou Asha Ashok Gundawwar & Ors. in appeal Nos. 1392 to 1398 of 1997 in which it is observed that :-
“Complainants herein assume dual capacity being a purchaser as also seller of the goods at the same time. Under Section 2(1)(d) of Consumer Protection Act, 1986 benefits under said Act are available only to the Purchasers of the goods and not to the Seller and therefore, the complainants would not fall within the purview of consumer dispute as envisaged under Consumer Protection Act, 1986.”
Therefore, we have no hesitation in accepting the arguments advanced by Adv. Mr Khubalkar for the o.p.
10. Moreover, it should be noted here that the same view is also taken by Hon’ble National commission in the case of Prithvi Narayan & Anr. Vs. National Seeds Corporation Ltd. – reported in 2012((1) CPR – 28 (NC). In this case Hon’ble National Commission relying on its earlier decision in the case of M/s Shakti Sugars Ltd Vs. Shridhar Sahu and Ors – reported in II(1999) – CPJ 0 5 (NC) held that in case of buy-back agreement the complainant would be purchaser as well as seller and therefore, complainant cannot claim the status of consumer.
11. In view of this settled position of Law and the undisputed facts of these appeals, we fully agree with the arguments advanced by Adv. Mr Khubalkar for the o.p. and also the finding of the President of the Forum, holding that the complainants do not fall under the category of consumer of the o.p. and therefore, the Consumer Complaints are not maintainable in Law.
12. However, the copies of impugned judgement & orders reflect that the Members of the Forum without considering the settled position of Law committed grave error in giving dissenting judgement by wrongly disagreeing with the findings of the President of the Forum. Such erroneous findings cannot be sustained.
13. As far as the second preliminary objection of the o.p. about territorial jurisdiction of District Consumer Forum, Gadchiroli is concerned, since, undisputedly, the agreement, in question, took place at Gadchiroli, it cannot be disputed that District Consumer Forum, Gadchiroli has jurisdiction to entertain the consumer complaint. It is well settled law that any agreement between the parties, do not confer the jurisdiction of any Forum or Court. The territorial as well as the pecuniary jurisdiction cannot be a sweet choice of the parties. Therefore, said objection raised by the o.p. is being not sustainable, cannot be accepted.
14. In view of the above findings that the Consumer Complaints are not maintainable in law, the merits and the demerits of the case do not survive. Therefore, we do not feel just & proper to comment on the evidence pertain to the quality of the paddy seeds, price offered by the o.p. to the complainants, etc.
15. For the foregoing reasons, the impugned judgement & order s are being not sustainable, the appeals deserve to be allowed.
Hence, the following order:-
ORDER
i. All six appeals are hereby allowed.
ii. The impugned judgement & orders dtd.16.11.1999 are set aside.
iii. Consequently the Consumer Complaints No. CC/98/31, 32, 33, 34, 37 & 38 are dismissed.
iv. No order as to cost.
v. Copy of this order be supplied to the parties.
