RESERVED

State Consumer Disputes Redressal Commission

U.P., Lucknow.

Appeal No. 1118 of 2004

1- Balaji Cold Storage & Ice Factory,

    Badaun Road, Chandausi, Distt.

    Moradabad through its Partner.

2- Manager, Balaji Cold Storage & Ice Factory,

    Badaun Road, Chandausi, Moradabad.    ….Appellants.

Versus

Sri Pal Gupta s/o Sri Harishandar Gupta,

R/o Village, Rudaian, Tehsil, Hilsi,

District, Badaun.                                         ….Respondent.

Present:-

1- Hon’ble Sri Vijai Varma, Presiding Member.

2- Hon’ble Sri Sanjai Kumar, Member.

Sri Anil Kumar Misra, counsel for the appellants.

Sri S.K.Sharma, counsel for the respondent.

Date 13.9.2017  

JUDGMENT

(Delivered by Sri Vijai Varma,  Member)

This appeal has been filed against the judgment and order dated 5.5.2004, passed by the District Forum-II, Moradabad in complaint case no.36 of 2003.

The facts giving rise to this appeal, in short, are that the respondent/complainant filed a complaint before the District Forum-II, Moradabad on the ground that he had kept 870 bags of potatoes in the appellants Cold Storage on rent, on different dates in the month of Marth, 2003 and the bags of the potatoes were to be returned back to the appellants in the months of October and November, 2003. With regard to the storage of the potatoes, the appellants/OP had issued receipts and rent of the potatoes

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@ Rs.56.00 per bag was deposited. The cost of his potatoes was Rs.3,04,500.00 on the basis of Rs.350.00 per bag. When the complainant went to take the potatoes on 25.10.2002 then he was told that due to faulty electric supply the stored potatoes have spoiled and it was not possible to return them. Neither the potatoes nor the cost of the same was given to the complainant hence, a complaint for either returning the bags of potatoes or to make payment of costs was filed. The OP had filed their WS submitting therein that the complainant is not a consumer as per provision of the Consumer Protection Act, 1986. Besides, the matter falls within the U.P. Cold Storage Act, 1976 and therefore, this Forum had no jurisdiction to entertain this complaint. Besides, the complainant had not produced the receipts as per provisions, therefore this complaint is not maintainable. The alleged bags of potatoes were not stored in their cold storage nor the rent of the storage of potatoes was paid. The bags of potatoes were not kept in their Cold Storage as per alleged receipts. The complainant had taken loan of Rs.1 lac on 14.12.2001, Rs.1,20,000.00 on 4.3.2002, Rs.30,000.00 on 4.3.2002 and Rs.50,000.00 on 12.3.2002 on the condition that the complainant would store their potatoes in their Cold Storage and thereafter will pay them after selling them subsequently. When the appellants/OP demanded the amount given by them as cash to the complainant then the complainant assured them to keep the potatoes in the season of 2003 in the Cold Storage but the complainant did not keep his potatoes in the Cold

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Storage and when the amount was demanded back by the OP then the complainant filed this false complaint case. Hence, this complaint deserves to be dismissed. After hearing the counsel for the parties, the ld. Forum passed the impugned order on 5.5.2004 as under:

          "परिवादी का परिवाद इस प्रकार स्‍वीकार किया जाता है कि परिवादी विपक्षीगण से अंकन 3,04,500/- रूपये वसूल करने का अधिकारी है और परिवादी इस धनराशि पर 01-04-2002 से वसूली के दिनांक तक 9 प्रतिशत वार्षिक सूद भी पाने का अधिकारी है। परिवादी विपक्षीगण से 2000 रूपये वाद व्‍यय भी पाने का अधिकारी है। विपक्षीगण को आदेशित किया जाता है कि दो माह के अंदर संपूर्ण धनराशि परिवादी को अदा करें।"

          Feeling aggrieved with this order, the appellants/OP filed this appeal mainly on the grounds that the respondent had taken loan of Rs.3 lacs but did not store his potatoes crop in his Cold Storage and when the amount was demanded then he has filed cases against them in the Forum. For recovery of the amount the appellants have already filed Civil Suit in the Civil Court. The complainant had not filed any receipt for alleged payment of rent nor filed any Pakka receipts as provided under the Cold Storage Act. In fact, the complainant was not a consumer and therefore, the case was not maintainable. The complaint was falsely filed hence, the order passed by the Consumer Forum was against the facts and law and therefore, the impugned order is liable to be set aside and the appeal allowed.

Heard counsel for the parties and perused the entire records.

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In this case, according to the respondent/complainant he had kept certain bags of potatoes in the Cold Storage of the appellants/OP on rent but when he went to take those potatoes bags then he was told that the potatoes had got rotten because of faulty electric supply and refused to either return the potatoes or its costs. Therefore, according to the complainant, the appellants/OP committed deficiency in service in neither returning the stored potatoes nor refunding its costs. On the contrary, the case of the appellants/OP is that the complainant was not a consumer as the Cold Storage Act applied and the Forum below did not have jurisdiction to entertain the complaint. Besides, the complainant has not stored any potatoes in their Cold Storage and in fact, it was the appellants who had given cash amount of Rs.3 lacs to the respondent/ complainant and when the amount was demanded then the complainant instead of refunding the amount has filed this false case and hence, there is no deficiency in service on the part of the appellants/OP when the entire case of the complainant was false.

So now, we have to see as to whether the complainant is a consumer or not and whether the case is covered under the Cold Storage Act and therefore, the Forum has no jurisdiction to decide the matter. If so, its consequences. Secondly, it is also to be seen as to whether the complainant had stored certain bags of potatoes in the Cold Storage of the appellants/OP on rent but the same was not returned and when the costs of the potatoes demanded then it was also not refunded hence, the appellants/OP committed deficiency in service.

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First of all, we take up the issue as to whether the complainant was not a consumer as the case was covered under the Cold Storage Act, therefore, it is not maintainable in the Forum below. In this regard, it is argued by the ld. counsel for the appellants that since it was a dispute pertaining to the Cold Storage, therefore, as per Cold Storage Act the case was not maintainable in the Forum below.  We find that there is no substance in the arguments advanced by the ld. counsel for the appellants as section 3 of the Consumer Protection Act provides that provisions of this Act are in addition to and not in derogation of any other law for the time being enforce. Therefore, it can not be said that because of the provisions of the Cold Storage Act, this case was not maintainable before the Forum below and the ld. Forum has rightly concluded in this regard. Ld. counsel for the appellants has also argued that there is no payment of rent by the complainant for keeping the potatoes in storage and hence, there was no consideration paid. Therefore, on this count also, the complaint was not maintainable but we find that as per the provisions of the Consumer Protection Act, for the goods or services, the consideration may either have been paid or promised and so in the instant case, if the rent was to be realized subsequently, as is the case of the complainant, then the consideration was to be paid in future and therefore, as per provision of the Consumer Protection Act under section 2(1)(d), the complainant was a consumer and therefore, the case could be filed under the Consumer Protection Act before the Forum below.

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Now, we come to the main issue as to whether the complainant had stored certain bags of potatoes in the Cold Storage of the appellants/OP on rent but the same was not returned and when the costs of the potatoes demanded then it was also not refunded hence, the appellants/OP committed deficiency in service.

          In this regard, it is argued by the ld. counsel for the respondent/complainant that the complainant had kept the bags of potatoes in the Cold Storage of the appellant, as is evident from the Kachchi receipts issued on 23.3.2002, 23.3.2002, 23.3.2002, 23.3.2002, 23.3.2002, 24.3.2002, 24.3.2002 and 24.3.2002, the copies of which have been filed by the complainant. From these receipts, it transpires that the appellants/OP had issued aforesaid receipts for keeping the number of bags of potatoes on different dates in the Cold Storage. The arguments advanced against these receipts by the ld. counsel for the appellants/OP is that there is no provision for issuing such Kachchi receipt by the Cold Storage and only Pakki receipt are issued by the Cold Storage for keeping the potatoes in the Cold Storage and therefore, on the basis of the aforesaid receipts, it is argued by the ld. counsel for the appellants/OP, that no inference regarding storage of the potatoes be drawn. In this regard, it is vehemently argued by the ld. counsel for the respondent/complainant that the practice by the Cold Storages is to issue these Kachchi receipts and hence, it can not be said that these receipt were not indicative of storage of potatoes in the Cold Storage. We find that the appellants/OP has not been able to show by any documentary evidence that only Pakki

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receipts are issued. It is also noteworthy that the appellants/OP have not been able to prove that these Kachchi receipts were not issued by their Cold Storage. So, if such receipts were issued by the appellants/OP in contravention of the Cold Storage Act then it was deficiency in service on the part of the appellants. The credibility of issuance of these receipts is enhanced on the stand of the appellants/OP when it is stated by them that a sum of Rs.3 lacs was advanced by them to the respondent to store their potatoes and to pay the appellants back after selling of the potatoes in the market once they are taken out of the Cold Storage in the market for the purpose but according to the appellants, the complainant did not store the potatoes and when the amount was demanded back from the complainant then he filed false cases but there is no evidence to prove that such an agreement was entered into between the parties and issuing of the Kachchi receipt shows that the appellants had in fact issued such receipts showing the bags of potatoes for being kept in the Cold Storage and since the appellants/OP refused to accept the storage itself therefore, it is clear that they did not return the potatoes. They should have either returned the potatoes or paid the complainant the costs of the potatoes but as they did not do either of the things therefore, they committed deficiency in service therefore, we find that the ld. Forum below passed the order with rationale and has drawn correct conclusion. The judgment in question has been well discussed and we find no illegality in it calling for our interference. Therefore, this appeal deserves to be dismissed. 

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ORDER

The appeal is dismissed. No order as to costs. 

Certified copy of the judgment be provided to the parties in accordance with rules.

         (Vijai Varma)                          (Sajai Kumar)

    Presiding Member                             Member

Jafri PA-II

Court No.3

style='text-align:justify;line-height:150%'>Section 75(3) of the ESI Act, therefore, this case deserves to be remanded back to the Forum below for adjudication afresh in the light of the observations made above.

ORDER

The appeal is allowed. The impugned judgment dated 11.3.2004 is set aside and the case is remanded back to the Forum below for adjudication afresh in the light of the observations made above  

 Certified copy of the judgment be provided to the parties in accordance with rules.

                 (Vijai Varma)                    (Sanjai Kumar)

               Presiding Member                      Member

Jafri PA II

Court No.3