RESERVED

State Consumer Disputes Redressal Commission

U.P., Lucknow.

(1) Appeal No.2493 of 2011

1- M/s Jai Prakash Enterprises, Mohalla, Sipah

    Near Bus Stand, Jaunpur through Proprietor

    Jai Prakash.

2- Jai Prakash Proprietor, M/s Jai Prakash Enterprises,

    Mohalla Sipah, Near Bus Stand, Pargana, Haweli,

    Tehsil, Sadar, District, Jaunpur.                …Appellants.

Versus

1- M/s Vikash Enterprises, Patti Narendrapur,

    Jaunpur, Business Establishment situated Village

    And Market, Patti Narendra, Tehsil, Shahganj,

    District, Jaunpur.

2- Vikash Soni s/o Lal Bahadur Soni, R/o Patti

    Narendra, Tehsil, Shahganj, Pargana, Anguli,

    District, Jaunpur.

3- Hindustan Coca Cola Beverage Private Limited,

    Main and Registered office at Mumbai.

4- Regional Manager, Utpadan Unit and office

    Village and Market, Raja Talab, G.T. Road,

    District: Varanasi.                                 ….Respondents.

 (2) Appeal No.144 of 2012

Vikas Enterprises through Vikas Kumar Soni, 

Patti Narendrapur, District, Jaunpur.          ……Appellant.

Versus

1- M/s Jai Prakash Enterprises through Jai Prakash,

    Office Add. Sipah Near Bus Stand, Sadar,

    District, Jaunpur.

2- Hindustan Coca Cola Beverage Pvt. Ltd. .Respondents.

Present:-

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

2- Hon’ble Sri Raj Kamal Gupta, Member.

Sri A.K. Singh for the for appellant.

Sri Neeraj Singh for the respondent no.1 & 2.

Sri Vivek Nigam for the respondent no.3 & 4.

Date   15.5.2017

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JUDGMENT

(Delivered by Sri Vijai Varma,  Member)

The above appeals are connected to each other as they arise out of the same order and therefore, they are decided together.

The facts giving rise to the appeal no.2493 of 2011, in short, are that the respondents no.1 & 2/complainants had filed a complaint case against the appellant and the respondents no.3 & 4 on the ground that the respondent no.1 & 2 were the sub dealers of the OPs and the complainants had paid to the OPs a sum of Rs.3,38,000.00  through cheque and bank draft for cold drinks. There was no balance due to the OPs but the amount of Rs.2,24,000.00 was not refunded to them despite much running around by them, hence, the complainants had filed the complaint case for compensation and recovery of the amount. The case was decided by the Forum below exparte vide orders passed on 14.9.2010 as under.

"परिवाद संख्‍या-226/2008 विरूद्ध विपक्षीगण अंशत: एकपक्षीय स्‍वीकार किया जाता है। विपक्षीगण संख्‍या-1 व 2 को निर्देशित किया जाता है कि मु0 2,24,000/-रू0 निर्णय पारित होने की तिथि से 06 प्रतिशत ब्‍याज के साथ निर्णय पारित होने के दो माह के अंदर परिवादीगण को अदा करे। शेष अनुतोष निरस्‍त किया जाता है। "

Thereafter, the appellants moved an application before the Forum below which was rejected by the Forum below on 19.10.2011,

Feeling aggrieved with the orders dated 19.10.2011 and 14.9.2010, the appeal has been filed by the appellants.

The main grounds of the appeal are that the ld.

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Forum has passed order on 14.9.2010 which is exparte where the appellants were not given the opportunity to be heard. No notice was served on the appellants hence, after the orders passed on 14.9.2010, the appellants moved application under section 114 and 151 CPC to review the order but that was also rejected by the Forum below. The complainant himself had admitted that it was a business establishment and the dispute between the party was a commercial one, hence the complaint was not maintainable. There was no dispute between the parties therefore, the Forum below has passed an erroneous order which is liable to the set aside.

The respondents no.3 & 4 have filed their written submissions on the maintainability of the complaint mainly on the ground that the complainant were an organization dealing with commercial activities and that they were not the consumers and the dispute could not be decided by the Forum.

The facts leading to the appeal no.144 of 2012, in short, are that the impugned order dated 14.9.2010 was passed in favour of the appellant/complainant but as the respondents had used the complainant's money hence, there should be an order for compensation and enhancement in the rate of interest and on this ground that the appeal has been filed. The respondent no.1 has filed the objection challenging the maintainability of the appeal.

          Now it is to be seen as to whether the complaint was maintainable in the Forum on the ground of their being no

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consumer dispute and complainants were the dealers of the respondents ? It is also to be seen as to whether the appeals were filed with delay or not ? It is also to be seen as to whether the OPs committed deficiency in service and hence, the impugned order dated 14.9.2010 was correctly passed.

          We first take up the points in issue with regard to appeal no.2493 of 2011. It is argued by the ld. counsel for the respondents that the appeal was filed with delay as the order in question was passed on 14.9.2010 whereas the appeal was filed on 19.12.2011 but in this regard, it is argued by the ld. counsel for the appellant that the impugned order was an exparte order and no notice was received by them and it is only when the appellants came to know about the order then they immediately moved the court below for setting aside the exparte order. An application for condonation of delay was moved by the appellant and considering the fact that there is no conclusive proof that notice was infact received, it is clear that the appellants were not given the opportunity to be heard and hence, when they came to know about the case then they moved the Forum below for setting aside the exparte order which was rejected by the Forum below on 19.10.2011 as the Forum below did not have the jurisdiction to review its own order and it is only then that they filed the appeal after getting the copy of the order on 29.1.2011 and 25.11.2011 that this appeal was filed on 19.12.2011 therefore, there is sufficient reason to justify the delay in filing the appeal. Therefore, the delay in filing the appeal is condoned.     

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          Now we come to the next point as to whether the complainants had a consumer dispute with the OPs or not and whether the complaint was not maintainable on the basis of the complainants involved in commercial activity. In this regard, we find that the complainants themselves admitted that they were the dealers of the OPs. They are admittedly involved into the commercial activity and as dealers they used to make payment to the distributors/OPs and that they had made payment of Rs.3,38,00.00 to the OPs as security amount and that on the demand of the complainants a sum of Rs.2,24,000.00 taken by the OPs as security amount was not refunded and so this is clearly a case of commercial activity where the amount of security was not refunded by the OPs to the complainants who were the dealers of the OPs. There is plethora of precedents whereby a dealer can not be categorized in the category of a consumer for the simple reason that he himself has bought the goods for resale. Therefore, the dispute between the parties could not be categorized as a 'consumer dispute' as provided under the Consumer Protection Act, 1986. Therefore, the complaint case was not maintainable in the Forum below as there was no consumer dispute and that the complainants were dealing in commercial activity. Therefore, the ld. Forum erred in allowing the complaint as it was not maintainable. The impugned order, therefore, is liable to be set aside and the appeal no.2493 of 2011 allowed.

          Now we come to the appeal no.144 of 2012. As the appeal no.2493 of 2011 has been allowed and the

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impugned order is liable to be set aside, hence, there is no question of allowing the appeal no.144 of 2012. As it was for enhancement in compensation and interest awarded by the Forum below, therefore, this appeal is liable to be dismissed.

ORDER

          The Appeal no.2493 of 2011 is allowed and the impugned orders dated 14.9.2010 and 19.10.2011 are set aside and the complaint dismissed. However, the appellants/complainants are entitled to file their complaint before the appropriate Forum. 

The Appeal no.144 of 2012 is dismissed. 

No order as to costs. Certified copy of the judgment be provided to the parties in accordance with rules. Let a copy of this judgment be placed on the records of the Appeal no.144 of 2012. 

         (Vijai Varma)                       (Raj Kamal Gupta)

    Presiding Member                             Member

Jafri PA-II

Court No.4