Per Sri M.V.L.Radha Krishna Murthy, Member:

        This complaint filed u/s 12 of Consumer Protection Act praying to direct the opposite party to deliver the stock in good and proper condition stored in the cold storage or in the alternative to pay the value of the stock i.e., Rs.1,18,440/- together with interest @24% p.a., from the date of demand i.e., 11-12-10 till realization after deducting the rental charges if any; to award damages of Rs.15,000/- towards mental suffering and for costs.

2.   The averments of the complaint in brief are as follows:

        The complainant is an agriculturist and the opposite party is the owner of cold storage carrying on business and preserving the agricultural produce of ryots by collecting rent.  Complainant through her husband Chennupati Hanumantha Rao preserved 47 bags of white Bengal gram of 60 kgs each on 24-03-07 in the cold storage of opposite party for which opposite party issued a bond No.3 of 48 in token of receipt of the said stock valued at Rs.62,040/- as on that date.  The opposite party informed the complainant that the stock in the said premises was insured.   Recently as there is some hike in the prices the complainant approached the opposite party and expressed her intention to take delivery of the stock by paying the rental charges.   To her shock and surprise she noticed that the said stock was totally damaged by insects.   On enquiry the complainant came to know that opposite party did not maintain the cold storage in proper condition and temperature.  On account of the same the entire stock in the cold storage was damaged by insects.  When the complainant questioned the opposite party about the damage caused to her stock, opposite party gave evasive replies and dodging the matter on one pretext or the other.  All the efforts made by the complainant to get the stock released or get the value thereof from the opposite party proved futile. Hence complainant got issued notice on 11-12-10 demanding the opposite party either to deliver the stock or to pay the value thereof at Rs.4,200/- per 100kgs.  Though opposite party received the said notice, failed to comply the demand made by the complainant.  Opposite party failed to maintain proper temperature and preserve the goods in good condition in the cold storage and on account of the same the entire stock was damaged.  Thus there is deficiency of service on the part of the opposite party.   Hence the complaint.

3.   Opposite party filed its version which is in brief as follows:

        The material allegations mentioned in the complaint are not true and correct and are invented for the purpose of complaint.   The present complaint is not maintainable either on law or on facts.  It is not true that the opposite party is the owner of the cold storage and carrying on business in preserving the agricultural produce of the ryots by collecting rents.  It is absolutely false to allege that opposite party informed the complainant that the stock in the said premises were insured.  It is not true that this opposite party did not maintain the cold storage in proper condition and temperature and that on account of the same the entire stock in the cold storage was damaged by insects.  The opposite party is not a director of the company at the time of present complaint.  In the month of April, 2009 three directors resigned from the board of directors including the opposite party and after April, 2009 the directors remaining the board are one Mr. Jitendra and V. Vijaya Krishna, so the complaint may be dismissed for non joinder of necessary parties.  

The claim of the complainant is barred by limitation.   The complainant deposited the stocks in March, 2007 as per document No.1 dated 24-03-07.  The consumer can claim only within two years from the date of deposit of stocks.   There is no relationship between the parties as consumer and customer, because the complainant did not pay single pie towards rent for the stocks stored in the opposite party cold storage.  As the complainant did not pay the rent and other expenses, huge amounts are indebted to the opposite party.   Hence complainant does not come under the provisions of the Consumer Protection Act.   There is no deficiency on the part of opposite party in rendering services to the complainant. The complainant filed this complaint with malafide intention to avoid payment of rents and other expenses.  The complainant is not entitled to file complaint before this Forum as the remedy is only to file civil suit.   As per the general conditions under 18 of the terms any claim or dispute arising out of this agreement shall be settled in a civil court at Vijayawada only.   Hence this Forum has no jurisdiction to entertain the case.    As per the conditions of the agreement the stocks stored are for season to season only i.e., every year from March to December. The complainant may not keep the stocks for long period.  The opposite party reminded the complainant personally through telephone, and also through postal correspondence intimating all the information that the stocks may be damaged due to his negligence.  The entire negligence is on the part of the complainant for not taking delivery of stocks within season between March to December in the year of storage and also avoiding payment of rent and other expenses.   The opposite party is not liable to pay loss or damage if any which is happened due to negligence of the complainant.  The complainant intentionally kept calm nearly for four years in order to make false claim and to get undue advantage and to avoid making payments to the opposite party storage.   Hence the complaint may be dismissed with costs.

4.   Both parties have filed their respective affidavits in support of their contentions reiterating the same.

5.  On behalf of complainant Exs.A-1 to A-18 are marked.  No documents are marked on behalf of opposite party.

6.    During pendency of complaint, complainant filed IA 406 of 2011 praying to implead V. Jitendra and V. Vijaya Krishna the present directors of opposite party.  The said petition was dismissed on                  19-11-11 by this Forum relying on a decision regarding the applicability of CPC by this Forum.  

7.   On 14-12-11 this CC was reserved for orders.  On 20-12-11 opposite party filed petition in IA 525 of 2011 u/s 151 CPC praying to reopen the matter for advancing arguments on behalf of opposite party.  The said IA was dismissed on 28-12-11 on the ground that the said petition is not maintainable.

8.     Now the points for consideration are:

1. Whether the complainant is a consumer within the meaning of C.P. Act?
2. Whether this Forum has got jurisdiction to entertain the complaint?
3. Whether the complaint is bad for non joinder of necessary parties?
4. Whether the complaint is barred by the law of limitation?
5.  Whether there is any deficiency of service on the part of opposite party?
6. To what relief the complainant is entitled to?        

9.  POINT No.1:-    It is not in dispute that the complainant stored  47 bags of white Bengal gram of 60 kgs worth of Rs.62,040/- in the opposite party cold storage on 24-03-07 under bond No.3 of 48.  It is also not in dispute that opposite party cold storage has not returned the said stock of 47 bags of white bengal gram.  

10.   It is the case of the complainant that recently as there is hike in prices complainant approached opposite party and expressed his intention to take delivery of the stocks by paying the rental charges.   But to her surprise she noticed that the said entire stock was totally damaged by insects and that she demanded the opposite party either to return her stock or to pay its value.   But the opposite party has not either returned the said 47 bags of Bengal gram or paid the value thereof to the complainant.  

11.   It is the case of the opposite party that the complainant has not paid any rent for storing the stocks in the godown and that therefore complainant is not a consumer.  As per condition No.10 of Ex.A-1 if the depositor fails to remove the goods within the time required, the cold storage may remove them and sell the goods in public auction and appropriate the sale proceeds towards its dues and remit the balance, if any to the depositor.  As per condition No.12 of Ex.A-1 the cold storage shall have the lien for the goods deposited, until all its dues are cleared by the depositor.  As per the said terms of Ex.A-1 bond the complainant is liable to pay rents for the period in which she stored the stocks in the cold storage and the opposite party was authorised to collect the rents while delivering the stocks as per the said terms.   Therefore the complainant is a consumer within the meaning of Consumer Protection Act.   Accordingly this point is answered.   

12.   POINT No.2:-    It is the case of the opposite party that as per general terms and conditions under 18 of the term any dispute arising out of the agreement shall be settled at Civil Court, Vijayawada only and this Court has no jurisdiction to entertain the complaint.   The cold storage is situate at Guntur.  The complainant is resident of Duddukuru village of Inkollu Mandal of Prakasam district.  As per the general terms of the bond issued by the opposite party under term 18 the jurisdiction of disputes is stipulated at Civil Courts at Vijayawada.   No transaction took place at Vijayawada nor the cold storage is situate at Vijayawada.  The cold storage is situate at Guntur and the transaction took place at Guntur.  Neither consent nor any agreement between the parties will confer jurisdiction if no part of cause of action arose at the place where the jurisdiction was stipulated.  

13.     Further in a decision reported in 2005 (2) CPR 15 the State Commission of Bangalore held-

                “Clause in a contract between the parties restricting the jurisdiction to a Court, not a bar to the jurisdiction of the Consumer Fora”.

        Therefore in view of section 11 (2) of CP Act this Forum has got jurisdiction to entertain the complaint. This point is answered accordingly.

14.   POINT No.3:-    It is the case of the opposite party that he is not a director of the company at the time of complaint and that three directors including him were resigned from the board of directors during the month of April, 2009 and subsequently one Mr. V. Jitendra and V. Vijaya Krishna are the present directors of the opposite party company and that the complaint is bad for non joinder of necessary parties.   The complaint was filed against the opposite party company represented by its Chairman V. Sambasiva Rao.   No evidence is placed in support of the said plea by the Chairman of opposite party viz., V. Sambasiva Rao.   The opposite party is a private limited company but not a firm as seen from cause title.  The opposite party company might have been registered under the Companies Act.   The company is a legal entity having a perpetual seal.   The person shown as representing the company was one of the directors of the opposite party company at the time of depositing the stocks as revealed from the version filed.   Any director of a company in our considered view cannot escape his liability by tendering his resignation.   As already observed the opposite party did not file any document showing that his resignation was accepted by Company Law Board the company being legal entity.  Therefore the complaint is not bad for non joinder of parties since the provisions of CPC except those specified u/s 13(4) of CP Act, are not applicable.   Accordingly this point is answered.

15.   POINT No.4:-    As seen from copy of Ex.A-1 cold storage bond issued by opposite party complainant stored 47 bags of Bengal gram on 24-03-07 with the opposite party. The term No.8 of Ex.A-1 stipulates the storage period as follows:

“All goods are stored on month to season basis unless otherwise provided.   If month’s basis a storage month shall extend from a date in one calendar month to but not including.  The same date of the next of succeeding calendar months but if there is no corresponding date in a next succeeding calendar month it shall extent to and include the last day of that month.   What the last day of the final storage month fails on a Sunday or a public holiday, the storage month shall be deed to expire on the next succeeding business day”.

16.     It was also averred by opposite party in their version that the stocks stored are for season to season only i.e., every year from March to December and the complainant has not taking delivery of the stocks within the period i.e., March to December of the year in which the stocks were originally stored.   According to the said term the period for storing the stock in the opposite party cold storage is one year.  

17.   The complainant stored her stocks under Ex.A-1 on 24-03-07.  If one year is taken into consideration as storing period she shall take delivery of the stock before March, 2008.   Therefore, the limitation for the stocks stored under Ex.A-1 starts from April, 2008 onwards.   But the complaint was filed by the complainant on 27-01-11.   Therefore, the claim of complainant regarding the stocks stored under Ex.A-1 is barred by law of limitation under section 24(A) of CP Act.  Accordingly this point is answered.                                

18.  POINT No.5:-   The terms 9 and 10 of Ex.A-1 bond is as follows:

             “9.  If for any reason the goods deposited cannot be kept for a long time in the cold storage for which it was agreed to be kept or its further keeping will deteriorate greatly in value or injure other property, the cold storage may give such notice as reasonable and possible in the circumstances to the depositor requiring him to remove those goods from the cold storage whether immediately or within the time notified in the notice, after paying all the charges, if any due to the cold storage.    

10.   If a depositor fails to remove the goods within the time required, the cold storage may remove them and sell the goods in public auction.  The risk and cost of the depositor and appropriate the sale proceeds towards its dues and remit the balance, if any to the depositor”.

19.   It is the case of the opposite party that inspite of reminding personally, through telephone and through postal correspondence the complainant did not take delivery of stocks and is negligent in taking delivery of the stocks.  Opposite party filed copy of registered notice dated 07-12-07 and postal receipt (unmarked since the same are filed after reserving the matter for orders on 14-12-11 along with                IA 524 of 2011 to reopen the matter which was dismissed on                        28-12-11 since the said IA is not maintainable) in support of the said contention that they have addressed the complainant to take delivery of the stocks.  According to term 10 of Ex.A-1 mentioned above if the depositor fails to remove the goods the cold storage may remove them and sell the goods in public auction and appropriate the sale proceeds towards its dues and remit the balance to the depositor.   But opposite party has not followed this term 10 stipulated under Ex.A-1.  If the opposite party is diligent in returning the stocks to the complainant and if the complainant failed to turn up even after issuance of notice, they would have sold the stocks in public auction as per term 10 of Ex.A-1 and after collecting their dues they would have returned the balance amount to the complainant. But that was not done by the opposite party.   Therefore in view of the foregoing discussions it can safely concluded that there is deficiency of service on the part of the opposite party firm.   Accordingly this point is answered.

20.   POINT No.6:-    In view of the fore going discussion on point No.4, this complaint is liable to be dismissed.

        In the result the complaint is dismissed. But in the circumstances of the case, each shall bear their own costs.

Typed to my dictation by Junior Stenographer, corrected by us and pronounced in the open Forum dated this the 29^th day of December, 2011.

MEMBER                                  MEMBER                           PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For opposite party:    NIL       

                                                                             PRESIDENT