Nagaland

StateCommission

RP/1/2019

Biplab Ghosh - Complainant(s)

Versus

Tepukhruto Angami - Opp.Party(s)

Abhimanyu Bannerjee

18 Aug 2022

ORDER

          This is a revision petition filed against the decision of the District Consumer Dispute Redressal Forum, Dimapur dated 04.07.2019 which read as:

“      Heard the parties at length and satisfied.

The Forum has observed that although the opposite parties are residing in West Bengal, however payment has been made from Dimapur and as per section 11(2)(c) of the Act, the cause of action arose from Nagaland i.e., under the District Forum, Dimapur and the delivery of goods meant for Dimapur via Khatkhati, Assam has no effect in the transport as it is prevalent in all other cases too for convenience of the parties to save from certain unwanted taxation.

        Therefore, in view of the above observation, this Forum has got jurisdiction to entertain the instant case and as far as the question whether it is a consumer or not has already been decided by this Forum in the earlier occasion and as per the direction of the State Commission, Nagaland, Kohima order dated 20^th November, 2018 remanded back to this Consumer Forum from both state as well as National Commission to decide the matter on jurisdiction as well as whether it is a consumer or not.

        On the basis of the argument advanced by both the parties, the Consumer Forum, Dimapur is of the view that this is a fit case of consumer as well as this Forum has jurisdiction to entertain the matter.”

          The above order is sequel to the two Revision Petitions filed before the Nagaland State Consumer Disputes Redressal Commission passed on 20.11.2018 and a further revision before the National Consumer Disputes Redressal Commission, Circuit Bench at Kolkata in RP No 3299 of 2018 on 07.12.2018.

          The first R.P. before the State Commission was disposed on 20.11.2018 wherein the Commission held:

“Admittedly, the impugned order is not a speaking one. The rival contention of the party deserved detail discussion of the facts of the case. At the same time, the impugned order is of interlocutory nature and as such, it will not be proper on my part to decide the case on merit otherwise the parties maybe prejudiced for their future course of action. I am also of the view that any observation on merit would cause embarrassment to the District Forum to decide the case afresh.

        For the foregoing reasons the impugned order is hereby set aside. The learned District Forum is directed to hear both the parties again and pass fresh order on the petition filed by the opposite party under section 26 of the Act. The learned Forum would also be at liberty to decide the petition independently or along with the merit of the case after recording evidence of both the parties.”

          The revisionists were aggrieved by the order and preferred to revision petition against the order of the State Commission before the NCDRC Circuit Bench at Kolkata vide RP No. 3299 of 2018 which was disposed by an order dated 07.12.2018. The revision petition was disposed with the observation that:

“We have perused the order passed by the District Forum and find that the District Forum while holding the Complainant as a ‘consumer’ has held as follows:

        “Heard the parties and satisfied. In the opinion of the Forum basing on the Consumer Act and under the submission of the parties it is a case of consumer.”

It has not gone into the question whether it should proceed with the Complainant or not. The State Commission has therefore, rightly remanded the matter to the District Forum to decide the same in accordance with law after hearing the parties it will be open to the petitioner to raise the plea regarding the jurisdiction, also which will be decided. The revision petition is dismissed with the aforesaid observation.”

          From the facts presented before this Commission, this is the third revision petition filed by the revisionist raising the plea that the Complainant/Respondent is not a consumer within the meaning of the Consumer Act, and also raised the plea that the District Consumer Redressal Forum, Dimapur has no territorial jurisdiction to try the matter on the ground that the revisionist is resided in Kolkata and the goods were delivered at Khatkhati, Assam and all transactions were made outside the jurisdictional boundary of the District Consumer Redressal Forum, Dimapur. Learned Counsel for the revisionist Mr. Abhimanyu Bannerjee has placed reliance upon the case of

Laxmi Engineering Works

-vrs-

P.S.G Industrial Institute

Civil Appeal no. 4193 of 1995 arising out of SLP (C) no. 6290 of 1994 dated 04.04.1995. 1995 AIR (Supreme Court) 1428.

 

The Apex Court has determined what nature of transactions can be termed as a commercial transaction and a consumer transaction to address the issue which type of cases maybe entertained by the consumer forums. The Apex Court observed:

“On this interpretation of the definition clause, persons buying goods either for resale or for use in large scale profit-making activity will not be ‘consumers’ entitled to protection under the Act. It seems to us clear that the intention of Parliament as can be gathered from the definition section is to deny the benefits of the Act to persons purchasing goods either for purpose of resale or for the purpose of being used in profit-making activity engaged on a large scale. It would thus follow that cases of purchase of goods for consumption or use in the manufacture of goods or commodities on a large scale with a view to make profit will all fall outside the scope of the definition. It is obvious that Parliament intended to restrict the benefits of the Act to ordinary consumers purchasing goods either for their own consumption or even for use in some small venture which they may have embarked upon in order to make a living as distinct from large-scale manufacturing or processing activity carried on for profit. In order that exclusion clause should apply it is however necessary that there should be a close nexus between the transaction of purchase of goods and the large-scale activity carried on for earning profit.”

         

 

 

On similar lines the learned counsel, Mr. Abhimanyu Bannerjee has placed reliance upon the case of

 

 

Kalpavruksha Charitable Trust

-vrs-

Toshniwal Brothers (Bombay) Pvt. Ltd. and another

I.A. No.2 Civil Appeal No. 9737 of 1996 D/d 12.10.1999 (Supreme Court)

 

 

 

Oswal Fine Arts

-vrs-

H.M.T Madras

Original Petition No. 1 of 1988 dt 27.04.1989 (NCDRC)

 

 

 

Supreme Court of India

Civil appeal no. 11397 of 2016 dated 22.02.2022

Shrikant G. Mantri           …Appellant

-vrs-

      Punjab National Bank         …Respondent

 

 

 

National Consumer Disputes Redressal Commission

Revision Petition No. 3811 of 207 D/d 09.07.2010

Rajasthan State Industrial Development

And Investment Corporation Ltd. (RIICO)    …Petitioner

                             -vrs-

  M/S Diksha Enterprises                    …Respondent

 

 

          In all the above decisions of the Apex Court and the National Consumer Disputes Redressal Commission have expressed the view that if the relationship between the service provider/supplier of goods is commercial in nature it would be out of the purview of the Consumer Commissions. If the services and goods were availed for the purpose of earning livelihood by means of self-employment, it would be covered under the Consumer Protection Act. The 1993 as well as the 2002 Amendment Act was passed with the intent of keeping the commercial transactions out of the purview of the Consumer Protection Act.

          Learned Counsel has argued that the present transaction was for commercial purposes, therefore the present complaint petition cannot be entertained by Consumer Courts.

          With respect to the territorial jurisdiction, he submits that the revisionist is resided in West Bengal and runs business at Kolkata, and all transactions were made outside the territorial jurisdiction of the Dimapur District Consumer Court and hence lacks jurisdiction to try the complaint.

          Learned Counsel, Mr. P. Surien appears for the Respondent/Complainant, have argued that the relationship between the revisionist and the Respondent/Complainant is that one is a consumer and other is a service provider. He has placed reliance upon the case of

Laxmi Engineering Works

-vrs-

P.S.G Industrial Institute

                             specially at para 12 of the judgement wherein the Apex Court has dealt with section 2(d) of the Consumer Protection Act, to illustrate who is a consumer within the meaning of the Act and therefore has the right to file complaint before the Consumer Courts/Commissions.

          Both the Respondent/Complainant and the Revisionist have relied on the same judgement to substantiate their arguments. The principle laid down by the Apex Court and the National Consumer Disputes Redressal Commission are accepted by the parties with respect to the question who is a consumer within the Act.

          Therefore, the matter is disposable only when the facts are presented and the courts can determine the nature of relationship between the contesting parties.

          With respect to the issue of territorial jurisdiction the learned counsel for the Respondent/Complainant has placed reliance upon the decision of the Hon’ble High Court of Allahabad in

WRIT – C No. – 30448 of 2013

Subodh Chandel and Another

-vrs-

The President Distt. Consumers

Disputes Redressal Forum & Anr

                             at para 9 to 11 of the referred judgement where the Hon’ble High Court of Allahabad has opined that:

“In our view, the protection provided under the C.P. Act to consumers is in addition to the remedies available under any other statute. It does not extinguish the remedies under another statute, but provided an additional or alternative remedy.”

          By this argument he seeks to impress upon the Commission that the provisions of the C.P.C. provides for the plaintiff to file suit where cause of action arises. In the instant case the goods were meant for the consumer who resides at Dimapur although the same was transhipped from Khatkhati to avoid multiple taxation by unwanted elements. The same was agreed by the parties, therefore, the goods were actually to be delivered at Dimapur and not Khatkhati in Assam. Under these facts, the consumer court at Dimapur has the jurisdiction to entertain the complaint petition.

          We have heard the learned counsels for the contesting parties at length. To dispose of the matter this commission has to consider what transpired before presenting the instant Revision Petition.

          The revisionist had filed a revision petition against the order dated 23.11.2017 passed by the District Consumer Redressal Forum, Dimapur and by an order dated 20.11.2018 directed the DCRF Dimapur hear both the parties again and pass fresh order on petition filed by the opposite party under section 26 of the Act. Aggrieved with the order the revisionist filed a revision petition against the order of this Commission and the matter was heard and dismissed by the National Commission by an order dated 07.12.2018.

          The matter was once again placed before the DCRF Dimapur and by an order dated 04.07.2019 disallowed the petition u/s 26 filed by the revisionist.

          On perusal of the order passed by the State Commission which was upheld by the National Commission, the State Commission had rightly observed that the impugned order was an interlocutory order and it will not be proper to decide the matter on merits as it would prejudice their future course of action. Therefore, the DCRF Dimapur was directed to dispose of the matter by hearing the parties. However, on going through the impugned order, it is clear that the DCRF Dimapur has only dealt with the issue of jurisdiction by citing reasons, while the issue of locus standi in terms of section 2 of the Consumer Protection Act has not even been discussed. The petition has been simply disposed by observing that:

“Therefore, in view of the above observation, this Forum has got jurisdiction to entertain the instant case and as far as whether it is a consumer or not has already been decided by this Forum in the earlier occasion and as per the direction of the State Commission, Nagaland, Kohima order dated 20^th November, 2018 remanded back to this Consumer Forum from both State as well as National Commission to decide the matter on jurisdiction as well as whether it is a consumer or not.”

          The impugned order does not discuss any facts to determine as to how the Complainant is qualified to be a consumer within the meaning of section 2(I)(d) of Consumer Protection Act.

          It is unfortunate to observe that the direction of this Commission has only been addressed by stating and concluding that “whether it is a consumer or not has already been decided by the Forum on earlier occasion.”

          There is no record to show that the District Commission has appreciated the facts pleaded by the parties to decide the status of the Complainant as a consumer. Therefore, we are of the view that the order dated 04.07.2019 must be set aside.

          This Commission has pointed out earlier that we should not dispose the matter on merits especially in an interlocutory order.

          We therefore, set aside the order dated 04.07.2019 partially with respect to the locus standi of the Complainant, qualifying the Complainant as a consumer.

          We do not interfere with the issue of the jurisdiction as the DCRF Dimapur has given a reasoned decision.

          The present compliant petition has been pending for long with a series of revision petitions being filed on the issue of locus standi which has to be determined by presentation of facts and disposal thereof by the original court, and not the appellate court.

          Sufficient delay has also been caused defeating the purpose of the Act.

          The DCRF Dimapur is directed to hear the parties of on section 2(d)(i) of the Act and dispose of the matter within 45 days of the passing of this order.

          Let the L.C.R be transmitted to the DCRF Dimapur within 4 days of the passing of this order.

          Revision petition stands disposed.