BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

                                                Complaint No:  711 of  09.12.2015.

                                                Date of Decision: 02.02.2016.

1. M/s. Sukarma International, having its registered office at Shop No.11, 1^st Floor, Guru Nanak Market, Focal Point, Ludhiana-141010, through its Proprietor Jyoti Sharma
2. Jyoti Sharma, Proprietor M/s. Sukarma International, having its registered office at Shop No.11, Ist Floor, Guru Nanak Market, Focal Point, Ludhiana-141010.

..… Complainants

          Versus 

1. YSR Bearing Private Limited, 311, A-Block, IRIS Tech Park, Sohna Road, Gurgaon-122018 (Haryana) through its President Mr. Randy Boparai.
2. Ms. Randi Boparai, President YSR Bearing Private Limited, 311, A-Block, IRIS Tech Park, Sohna Road, Gurgaon-122018 (Haryana).
3. Naveen T. Kapoor, Authorized person of YSR Bearing Private Limited, 311, A-Block, IRIS Tech Park, Sohna Road, Gurgaon-122018 (Haryana)

…..Opposite parties 

                                      Complaint under the Provisions of Consumer Protection Act, 1986

QUORUM:

SH. G.K. DHIR, PRESIDENT

SH. S.P. GARG, MEMBER

MS. BABITA, MEMBER

COUNSEL FOR THE PARTIES:

For complainants           :         Sh. Nitin Kapila, Advocate.

ORDER

PER G.K. Dhir, PRESIDENT

1.                 Heard on application for amendment of complaint. Amendment is sought for claiming that word ‘registered office’ inadvertently recorded in title of the complaint as well as in para no.1 of the complaint. After going through title of complaint as well as para no.1 of the compliant, it is made out as if complainant initially projected as if complainant No.1 has its registered office at Shop No.11, First Floor, Guru Nanak Market, Focal Point, Ludhiana. Even in the franchisee agreement dated 09.03.2015 it is mentioned as if complainant No.1 has its registered office at Shop No.11, First Floor, Guru Nanak Market, Focal Point, Ludhiana. So contents of the complaint as originally framed in fact were in accordance with the franchisee agreement relied upon by the complainant for filing this complaint. Now word ‘registered office’ sought to be omitted for claiming virtually as if complainant no.1 concern has no registered office at Shop No.11 referred above. As documentary evidence produced on record by the complainant itself establishes as if complainant no.1 has its registered office and as such deletion of the word ‘registered office’ from the title of the complaint as well as from para no.1 of the complaint will be against the terms of produced documents. Virtually the amendment is sought by complainant for bringing the claim within the preview of this Forum by suppressing the facts qua holding of registered office by complainant No.1 at Shop No.11, First Floor, Guru Nanak Market, Focal Point, Ludhiana. As and when contemplated amendments aims at suppressing the material facts like this, then amendment must not be allowed. So application for amendment merits dismissal and same is hereby dismissed.

2.                 Heard for the purpose of entertainment of complaint. After going through complaint, it is made out as if complainants paid a sum of RS.25,00,000/- to Ops for supply of the stocks against which the alleged damaged stocks of wroth Rs.21,92,159/- were supplied. As the damaged goods could not be resold and that is why compensation of Rs.15,22,527/- including price of damaged articles and the balance is sought. That refund of Rs.15,22,527/- sought along with future interest. In fact Rs.3,68,000/- sought on account of assured interest at the agreed rate of 2% per annum on unsold stocks, but Rs.3,16,000/- the balance amount as damages. Rs.1,00,000/- as consultation fee, but Rs.5,00,000/- as compensation on account of acts of deficiency in service are claimed in addition to the amount of Rs.1,52,105 + Rs.86,422/- as charges of replacement of unsold stocks.

3.                In para no.5 of the complaint, itself it has been mentioned that as per clause No.10 of article XI of Franchisee agreement, the franchisor undertook to assist the complainant in monitoring and managing the franchisee business for making sure that best business practices get implemented at the franchisee end, to run it on profit. Further it is mentioned in that para that all sales and marketing activities will be done by the franchisor at his own costs. Mentioning of these words in para no.5 of the complaint itself reflects that the franchisee agreement arrived at between the complainants and Ops for enabling the complainants to run the business of franchisee for earning profits. As huge amount of Rs.25,00,000/- invested through franchisee agreement and as such, by no stretch of imagination it can be held that said agreement was arrived by complainants just for earning livelihood. Rather the said franchisee agreement was arrived at between the parties for enabling the complainant/franchisee to earn profit by operating business properly.

4.                In Article VI of Franchisee agreement, itself it has been mentioned that training to the deployed staff of franchisee will be provided by franchisor and as such, same itself reflects as if the business of franchisee will be carried at large scale by deployment of trained staff. Deployed staff will be at payroll of franchisee is also envisaged by Clause-6 of article VI of the Franchisee agreement. Further as per Clause-5 of Article VII of Franchisee agreement, the franchisee shall buy and maintain throughout the term minimum stock products of worth of Rs.1,25,00,000/- from the franchisor at the cost price. However, in case the demand is lesser than Rs.1,25,00,000/-, then stock will be maintained as per actual market demand. So this Clause-5 of Article-VII itself reflects as if the business of franchisee was to be carried out at large scale and that is why minimum  stock products of worth Rs.1,25,00,000/- were required to be maintained. Therefore, submission of counsel for complainant has no force that actually the franchisee agreement was arrived at for earning livelihood by complainants. 

5.                In case of S. Kumars Com. Ltd. Vs Amarendra Raiguru 2008(2) CPJ 177 payment of Rs.2,03,600/- in connection with franchisee business agreement for purchase of certain equipments was made for earning livelihood alone. Keeping in view the magnitude of payment of Rs.2,00,000/- alone, it was found tenable as if franchisee agreement was for earning livelihood alone. However, in the case before us, position is otherwise because here payment of huge amount of Rs.25,00,000/- was made against the received stock of Rs.21,92,159/-, though requirement of maintaining minimum stock was of Rs.1,25,00,000/- and as such, it is obvious that the activity contemplated through the franchisee agreement before us was for carrying of business at large scale. Likewise in case of Monto Motors Ltd. Vs Sri Sai Motors and another 2007(10 CPJ 83, refund of security amount of Rs.2 Lac was sought only under pretext that the said amount was deposited under the dealership agreement. However, huge amount under franchisee agreement invested in this case by the complainants for carrying on business at large scale and as  such, factual position indicated through the produced documents and the contents of complaint itself establishes that the commercial activity was contemplated through franchisee agreement in question. In case the agreement arrived at for carrying on commercial activities sans purpose of earning livelihood, then the complainant concern will not be a consumer. In holding this view we are fortified by law laid down in Pharus Solutions Pvt. Ltd.  2015 (4) CLT 265 (NC). In case the lift got installed for commercial purpose or the electricity connection obtained for commercial purpose or the car purchased by the director for carrying on commercial activity, then the complainant will not be a consumer as per law laid down in cases Nikita Cares Vs Surya Palace IV (2015) CPJ 405 (NC); Dr. Baba Sahib Ambedkar Cloth Spinning Mill Ltd. and others Vs Maharashtra State Electricity Board and others 2015(4) CLT 383 (NC). In fact the facts and circumstances enumerated in the complaint itself enables this Forum to draw conclusion qua availing of the services by complainant for carrying commercial activities for earning profit. So the complainant concern cannot be treated as consumer. Same is the position in the case before us as discussed above and as such, we have no hesitation in holding that the complainants are not the consumer within meaning of Section 2(d) of Consumer Protection Act. Being so complaint not entertain able at the preliminary stage itself and as such same merits dismissal and is hereby dismissed. However, complainants are at liberty to seek return of the produced documents by filing application in that respect and even avail appropriate remedy before the appropriate Forum. This file be indexed and consigned to record room.

                                (Babita)               (Sat Paul Garg)                     (G.K. Dhir)

                    Member              Member                                 President

Announced in Open Forum.

Dated:02.02.2016. 

Gobind Ram.