HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT
- This instant appeal has been filed under section 15 of the Consumer Protection Act, 1986 ( in short, ‘the Act’) challenging the order dated 09.11.2023 passed by the District Consumer Disputes Redressal Commission, Kolkata, Unit – IV in connection with consumer case No. CC/180/2023. The appellant as complainant filed a complaint case before the District Commission praying for the following reliefs :-
“i) An order directing the respondents, their agents, sub-ordinates and successors to pay immediately to our Recorded Bank Account with, Bank of Baroda, Account No.83390100002370, IFSC Code No.BARBODBBEHA, with our own money for Rs.5,00,000/- (five lakh), as clarified above illegally, arbitrarily, whimsically holding by them and retained by them, with our daily financial losses for total forceful closure of our business Set-up and Shop since 07.09.2023, which was very reasonable as above, Or, the Hon’ble Court think it fit, justified and proper, for total forceful closure of business of your poor sufferings deprived Deceived applicant, leading his family members towards virtual Starvation, as we were totally dependent upon our said small Confectionery shop only, with such type of pre-planned criminal conspiracies, to deceive and to cheat your applicant, with such type of open day-light dacoity, criminal breach of Trust and Fraudulent practices and immoral and unethical activities and which was denied and openly refused vide their letter dt.06.10.2023 with dishonest misrepresentation of captioned Franchise Agreement in support of their dishonest activities and with their very bold and open Refusal to return back our very much genuine and justified claimed amount, with such false, fake, frivolous, concocted, mischievous, irrelevant and baseless assumptions and presumption with a fraudulent misrepresentation of the said Franchise Agreement dt.24.09.2022, and with their malicious intentions to deceive the simple innocent Poor sufferings deprived applicants only, with a further criminal intimidation for dire consequences, if your applicant ever ask for refund back of the said claimed amount illegally retained by them, Or initiate necessary legal action for realisation of our money from those habitual dishonest Fraudulent Persons.
ii) An order directing the respondents, their agents, sub-ordinates, and successors to produce all documents, records, proceedings, holding at their end, so that a conscionable justice may be administered by granting relief Here-in-above.
iii) To pass such other Or further orders as to the Hon’ble Consumer Forum may deem it fit and proper for the end of justice to the continuously harassed, humiliated, mentally tortured and fraudulently deprived and cheated applicants, with the forceful closure of their small Confectionery shop, with such type of pre-planned Criminal Conspiracy and breach of Trust by the respondent and their associates, in the disguise of a Business Enterprise to deceive, defraud, cheat the innocent person like your applicants, by those Gangs of habitual dishonest criminals, with their so-called Trap of such Fraudulent Franchise Agreement, leading to forceful closure of our shop, with the virtual Starvation of our family members, as we were totally dependent upon our small Confectionery shop business only.”
- The District Commission heard the Learned Advocate appearing for the appellant on the point of admission. After hearing the District Commission vide order dated 09.11.2023 held that :-
“During the course of hearing, we have gone through the materials on record and found that the complainant is running a shop being a franchisee for getting profit and such thing is not at all permissible in the eye of law of India. Hon’ble Apex Court in so many cases observed that franchisee cannot come within the purview of consumer.
Under such circumstances, this commission is not in a position to admit the case prima facie and the same is dismissed.”
- Being aggrieved by and dissatisfied with the impugned order the appellant has preferred this appeal.
- I have heard the Learned Advocate appearing for the appellant and carefully perused the materials on record. Learned Counsel for the complainant / appellant vehemently submitted that the District Commission committed grave error in recording the findings that the franchisee cannot come within the purview of the ‘consumer’.
- The only controversy in this case is whether the complainant / appellant is a ‘consumer’ within the meaning of the Consumer Protection Act, 2019.
- Upon hearing the appellant and on perusal of the record and the impugned order I find that it is the admitted case of the complainant that the complainant is a franchisee of the opposite party and he is supposed to run / promote the business of the opposite party as per the terms of the agreement executed by both the parties on 24.09.2022. The material on record further goes to show that the complainant has not purchased the equipment rather franchiser provided all necessary articles including cold counter, storing racks as required for storing / selling the products manufactured and / or marketed by the franchiser to the franchisee. The agreement dated 24.09.2022 further goes to show that the franchisee will get commission and / or discount which may reflect in the invoice in lieu of franchisee service as provided by the franchisee. Other than the above commission / discount the franchisee has no right, claim whatsoever on the business and the franchisee shall have no right / claim on the business of the franchisee business.
- The Hon’ble National Commission has held on 19.02.2009 in a case reported in C. Ravi Kiran Vs. M/s. S. Kumar Online Limited and another, in connection with Revision case being No. 309 / 2019 that the petitioner had applied for franchisee and that person who is a franchisee holder, is not a ‘consumer’.
- Against the order dated 19.02.2009 of the Hon’ble National Commission an SLP (Civil) No. 32821 / 2009 was preferred before the Hon’ble Apex Court which vide order dated 19.11.2010 dismissed the same, therefore, the order dated 19.02.2009 of the National Commission in C. Ravi Kiran (Supra) is the final authority to hold that the person who has applied for franchisee and holding it as franchisee holder is not a ‘consumer’.
- Under this facts and circumstances and considering the materials available on record I am of the view that there is no illegality or irregularity in the impugned order and there is no justification to interfere therein.
- This appeal has no force, therefore, it is dismissed.
- Consequently, the I.A. being No. I.A./18/2024 is dismissed.
- A copy of this order be provided to the appellant whereas a copy of this order be sent to the District Commission to place it on original record of the complaint case.
- The file be consigned thereafter to record room.
