Delhi

North

CC/461/2022

SANTOSH TANWAR - Complainant(s)

Versus

VIHAAN DIRECT SELLING INDIA PVT LTD - Opp.Party(s)

04 Feb 2023

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

Consumer Complaint No. 461/2022

In the matter of

Santosh Tanwar

S/o Sh. Sultan Singh Tanwar

R/o H. No. 770, Near Sani Mandit

Sector 7, Pushp Vihar, Delhi- 110017                            …      Complainant

Versus

Vihaan Direct Selling (Indi) Pvt. Ltd.

Office Address:

248, Katha Number 376

Byrathi Village Bidarwhalli

Hobli, Bengaluru Urban- 562149

Karnataka                                                             …      Opposite Party No. 1

 

QNET & Vihaan Distributors Welfare Association

Office at:

1439/1, Chabi Ganj, Kashmere Gate

Delhi- 110006                                                      …      Opposite Party No. 2

 

                   Present:       Shri Abhishek Yadav, Adv. for Complainant

 

ORDER

04/02/2023

(Divya Jyoti Jaipuriar)

The Complainant has filed this complaint alleging that the Opposite Parties has not supplied the product “Tripsavr Advance” which the Complainant purchased from the OPs on 16.09.2022 for USD 1670/-. We have sought explanation from the Ld. Advocate for the Complainant to explain the description of the product “Tripsavr Advance” as the receipt indicates it as advance payment. On instructions, Ld. Advocate for Complainant informed this Commission that the Complainant is not able to describe the said product.

In the complaint, the Complainant has referred to an agreement dated 16.09.2022 between the Complainant and the OP. The said agreement, which is part of the complaint, indicates that the Complainant approached the OP for becoming “Independent Distributor of the Company”. In furtherance of the said agreement, the Complainant has agreed to pay a sum of Rs. 1,80,000/-. The Complainant accordingly made payment of USD 1670/- to OP on the same day. The perusal of documents indicates that the said payment was in furtherance of the agreement between the Complainant and the OPs. The said agreement clearly is an agreement to appoint Complainant as a distributor/ agent of the OP Company. The relationship between the Complainant and the OP, therefore is purely business to business.

In this context, we would also like to refer to the judgment of Hon’ble Supreme Court in the matter of Laxmi Engineering Works vs. P.S.G. Industrial Institute [(1995) 3 SCC 583], in which Hon’ble Supreme Court has explained the term “Commercial Purpose”. While examining the issue, Hon’ble Suprme Court, in Laxmi Engineering case (Supra) has held as under:

“10. … Any consumer can go and file a complaint. Complaint need not necessarily be filed by the complainant himself; any recognized consumers' association can espouse his cause. Where a large number of consumers have a similar complaint, one or more can file a complaint on behalf of all. Even the Central Government and State Governments can act on his/ their behalf. The idea was to help the consumers get justice and fair treatment in the matter of goods and services purchased and availed by them in a market dominated by large trading and manufacturing bodies. Indeed, the entire Act revolves round the consumer and is designed to protect his interest. The Act provides for “business ­to­ consumer” disputes and not for “business­to­business” disputes. This scheme of the Act, in our opinion, is relevant to and helps in interpreting the words that fall for consideration in this appeal.

11. … The explanation reduces the question, what is a “commercial purpose”, to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz., “uses them by himself”, “exclusively for the purpose of earning his livelihood” and “by means of self­employment” make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself, by employing himself for earning his livelihood.”

In Lilavati Kirtilal Mehta Medical Trust vs Unique Shanti Developers and others [(2020) 2 SCC 265], Hon’ble Supreme Court, while dealing with the issue of transaction for commercial purpose, has laid down certain guidelines and held as under:

“19. To summarise from the above discussion, though a strait jacket formula cannot be adopted in every case, the following broad principles can be culled out for determining whether an activity or transaction is “for a commercial purpose”:

19.1. The question of whether a transaction is for a commercial purpose would depend upon the facts and circumstances of each case. However, ordinarily, “commercial purpose” is understood to include manufacturing/ industrial activity or business­to­business transactions between commercial entities.

19.2. The purchase of the good or service should have a close and direct nexus with a profit­generating activity.

19.3. The identity of the person making the purchase or the value of the transaction is not conclusive to the question of whether it is for a commercial purpose. It has to be seen whether the dominant intention or dominant purpose for the transaction was to facilitate some kind of profit generation for the purchaser and/or their beneficiary.

19.4. If it is found that the dominant purpose behind purchasing the good or service was for the personal use and consumption of the purchaser and/or their beneficiary, or is otherwise not linked to any commercial activity, the question of whether such a purchase was for the purpose of “generating livelihood by means of self­employment” need not be looked into.”

Hon’ble Supreme Court in Lilavati Trust case (supra) has guided that to decide that a transaction is for a commercial purpose or not, the facts and circumstances of each case has to be considered and there cannot be any straightjacket formula for that purpose. However, the dominant intention or dominant purpose for the transaction and close and direct nexus with a profit­generating activity are two broad parameters to ascertain that whether the transaction in question is commercial in nature or not. Further, for application of the explanation of section 2 (1) (d) of the erstwhile Consumer Protection Act, 1989 [ Section 2 (7) of the Consumer Protection Act, 2019], it is also to be examined that if the dominant purpose behind purchasing the good or service was for the personal use and the consumption of the purchaser and/ or their beneficiary, or is otherwise not linked to any commercial activity, then the question of whether such a purchase was for the purpose of “generating livelihood by means of self- employment” need not be looked into.

While applying the principles laid down in Lilavati Kirtilal Mehta Medical Trust case (supra), Hon’ble Supreme Court in the matter of Shrikant G. Mantri vs. Punjab National Bank [(2022) 5 SCC 42] has examined the overdraft facility being utilised by a stockbroker has held that relations between the appellant [Stockbroker] and the respondent [Bank] is purely “business to business” relationship. Hon’ble Supreme Court, therefore concluded that as such, the transactions would clearly come within the ambit of ‘commercial purpose’ and it cannot be said that the services were availed “exclusively for the purposes of earning his livelihood” “by means of self-employment”. Hon’ble Supreme Court has also opined that if the interpretation as sought to be placed by the appellant is to be accepted, then the ‘business to business’ disputes would also have to be construed as consumer disputes, thereby defeating the very purpose of providing speedy and simple redressal to consumer disputes.

In the case in hand, the transactions between the Complainant and the OPs clearly indicate that the relationship between the Complainant and the OP is purely “business to business”, which is not within the ambit of the application of the Consumer Protection Act, 2019. Therefore, this complaint is not maintainable before this Commission.

Hence, for the said reason, this complaint is dismissed at admission stage itself. However, we grant liberty to the Complainant to approach the Forum/ Court of appropriate jurisdiction, if so advised. While doing so, the Complainants may seek the benefit of the judgment of Hon’ble Supreme Court in the matter of Lakshmi Engineering Works (supra) to explain the delay, if any, if the same is available to him. Needless to say we have not expressed any opinion on the merits of the case and if the Complainant approached any other Forum/ Court, the same shall decide the case on its own merit without being influenced by any of the observations made in this order.

Office is directed to supply the copy of this order to the Complainant as per rules. Office is also directed to return all original documents filed by the Complainant, if any, after keeping certified copies of the same in the record. Thereafter, file be consigned to the record room.

Ordered accordingly.

 

 

 

(Harpreet Kaur Charya) Member

(Divya Jyoti Jaipuriar) President