COMPLAINT FILED ON: 10/10/2019

DISPOSED ON: 15/03/2023

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, CHITRADURGA.

CC.NO:560/2019

DATED: 15^th March 2023

PRESENT: Kum. H.N. MEENA, B.A., LL.B., PRESIDENT

                  Smt. B.H. YASHODA, B.A., LL.B., LADY MEMBER        

  Sri. H.JANARDHAN, B.A.L., LL.B., MEMBER       

::ORDER::

By Sri. H.JANARDHAN, B.A.L., LL.B., MEMBER.

        This is a complaint filed by the complainant U/s 12 Consumer Protection Act, 1986 seeking relief against the OP to pay sum of Rs.5,00,000/- along with interest at the rate of 18% per annum from 28/06/2019 till date of realization along with litigation cost and for such other relief as this commission  deems fit.

    2.  The brief facts of the complaint is as follows:

        OP was the successful bidder of catching the fish from the Sanikere Tank for a period of 1 year i.e., 2018 believing the OP complainants have paid a sum of Rs.5,00,000/- to the OP as advance on 08/03/2018 as the said amount does not carry any interest.  Both complainant and OP have entered into an agreement on 08/03/2018 with specific terms and conditions.  Further the OP has agreed to maintain the tank by growing the fish and providing food to the said fish.  Complainants not only had the right to catch the fish not less than half kilogram weight for which complainants have to pay Rs.65/- to OP as consideration.

3. Both complainants have agreed to pay the above said amount to the OP.  Accordingly complainants are paying the amount as and when it became due.  After the completion of the said period the OP has to repay the advance amount immediately without any further delay to the complainants. 

4. The contract period of one year was completed and complainants are stopped to catch the fish from the said tank as such the complainants demanded the OP to refund the advance amount paid to the OP. But OP on one or the other pretext dodged the matter without repaying the advance amount.  Though the OP have executed an agreement to the complainants in spite of the demands made by the complainants to the refund the advance amount, but the said efforts went in vain.  As such complainant have suffered lot mentally and also have invested huge amount to the OP has and also paid advance amount to the OP for catching the fish in Sanikere Tank.  OP unnecessarily have withhold the money of complainant and hence said act of the OP have caused deficiency in service to the complainants.  Being aggrieved by the said act of the OP finally complainant got issued notice to OP on 15/06/2019 requesting the OP to pay the advance amount but OP have neither replied to the notice nor refunded the advance amount. Hence complainants have filed this present complaint.

5. After receipt of notice to OP, OP appeared through their counsel and have filed version contending that the complaint filed by the complainants is not maintainable either in-law or facts.  The complaint is barred by limitation and jurisdiction.  Further OP contended that, complainant is barred by non-joinder of necessary parties and misjoinder of OP.  Complainant it is not a consumer for the OP as the complainants are not coming under the purview of consumer protection Act. OP also contents that, agreement which is produced by the complainants is and was not effected on requisite stamp paper as required under Law.  Moreover there is no signature of the OP in the entire agreement dated 8/03/2018 and alleged signature of the OP as stated by the complainants is not signature of the OP.  There is no privity of contract between the complainants and OP at any point of time. Complainants have not paid any amount to the OP and the OP have also not received any amount from the complainants.  There is no service of any Legal Notice to the OP and the complainants have created the same with the collusion of the postal authorities. Further complainants shall have to prove execution of the alleged agreement and also have to prove the signature of the OP and also have to prove the passing of the consideration if any to the OP and also the complainant have to produce documents of the Grama Panchayath regarding bidding and catching of fish in Sanikere Tank. OP also contended that, he is not aware of the agreement and the OP have not entered into any agreement with the complainants at any point of time and further OP denied other allegations made in the complainant and pays for dismissal of the complainant with exemplary cost.

6. Affidavit evidence of complainant is filed and got marked documents as Exhibits A-1 to A-3 and have closed their side evidence. Affidavit evidence of OP is filed by one
Sri. O. Narasimurthy and no documents were marked for OP side and have closed their side.

7. Both complainant and OP have filed written arguments and also heard oral arguments of both the sides.

      Now the points that, arise for our consideration are as follows:

1. Whether complainant proves he is a consumer?
2. Whether complainant proves deficiency service on the part of the OP?
3. Whether complainant is entitled for the relief as sought in the complaint?
4. What Order?

       My answers to the above points are as follows:

1. Point No.1 & 2: In the Negative
2. Point No.3: Does not arise for our consideration
3. Point No.4: As per final order

8. Point No.1 & 2: On perusal of the pleadings of both the parties it is a admitted by both the parties that complainant as contacted the OP and entered in to an agreement on 08/03/2018 that the complainant will catch the fish from Sanikere Tank, which the OP had purchased and was successful bidder of catching the fish from the Sanikere Tank.  But complainants states that, he has paid a sum of Rs.5,00,000/- as advance to OP on 08/03/2018 and after expiry of the bidding of catching the fish from Sanikere Tank, which will expire after period of one year then the OP have to repay the advance amount to the complainant without any interest.  Complainant also states that he has entered in an agreement with the OP and have executed an agreement of sale as per Exhibit A-1, but when complainant insisted the OP to return back the advance amount OP did not return the above said amount.  All the above averments  are not admitted by OP hence now the crux of the matter is to whether the complainant is a consumer according to Consumer Protection Act 2019 as per Ex.A-1 that is agreement dated:08/03/2018 signature of the opponents has been disputed by the OP and also there is no expert opinion to verify signature of the OP and also the agreement which is produce by the complainant is also not effected on the requisite stamp paper as required Under Law and also there is no signature of the complainant on the 1^st page of the agreement.  But in the version OP have taken the contention that there was no previty of contract between the complainant and OP as complainant have not paid any amount to the OP and OP have not received any amount from the complainant then the complainant has to prove execution of the alleged agreement and also have to prove the signature of the OP, found on the said agreement. When such being the case the burden of proof lies on the complainant then the complainant should have taken the assistance of technical expert to prove the same but the complainant have failed to take the assistance to that effect to prove the execution of the alleged agreement. When he has not proved the alleged agreement then passing of the consideration to OP comes to consideration without execution of the agreement complainant cannot prove the passing of the consideration to OP. Moreover according to definition of the consumer the complainant does not fall under the definition of the consumers as defined under the Consumer Protection Act, 2019 which read as follows:

"Consumer" means a person who…

1. Buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

2. Hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose.

    9. When complainant has failed to prove that he is a consumer and also have failed to prove the execution of the agreement and also not produced any document to show that complainant was a successful bidder of catching the fishes from Sanikere Tank and also have not produced any documents of Panchayath regarding successful bidding of catching a fish from Sanikere Tank for proving the alleged agreement and for recovery of the advance amount the complainant should have approached competent Civil Court as this commission shall try cases of summary nature and elaborate evidence has to be led to prove the same.  viewing from any angle the complainant have failed to prove that he is consumer and also have not produced any cogent evidence to prove the signatures also filed to prove previty of contract between the complainant and OP when complainant failed prove the amount paid to the OP then there is no service to be provided by the OP and hence complainant is not a consumer viewing from any angle complainant have failed to prove deficiency in service on the part of the OP and hence we answer Point No.1 and 2 in the negative.

10. Point No.3: When the complainant is no more a consumer then considering the other points does not come for our consideration. And hence complainant is not entitled for the relief as sought in the complainant but complainant has got liberty to approached competent Civil Court for recovery of money and for proving execution of the agreement if the law permits to do so.

11.   Point No.4:- For the forgoing reason we proceed to pass the following:

:: ORDER ::

            The complainant filed by the complainant U/s 12 Consumer Protection Act, 1986 is hereby dismissed.  No Order as to cost.

             Communicate the order to both the parties.

(Dictated to the Stenographer, typed by him, the transcript corrected, revised and then pronounced in the open commission by us on 15^th March 2023.)

  LADY MEMBER                  MEMBER               PRESIDENT

/

-:ANNEXURES:-

Witnesses examined on behalf of Complainants:

PW-1: Sri Thippeswamy.G. S/o Guruswamy, by way of affidavit evidence.

Witness examined on behalf of opponent:

DW-1: Sri O Narasimha Murthy S/o Obanna, by way of affidavit

           evidence.

Documents marked on behalf of Complainants:

Documents marked on behalf of opponent:

Nil

  LADY MEMBER                MEMBER                 PRESIDENT