BHAGWAN DASS BHATIA ALIAS B D BHATIA vs CEAT FINANCIAL SERVICES LTD

-ORDER dated 3. 4. 2007 passed by the learned Divisional Forum, Jammu (hereinafter to be referred to as the Forum) has been taken in appeal herein. The Forum below has dismissed the complaint on the preliminary objection raised by the respondents to the effect that Company Law Board had been dealing with the matter in controversy and formulated the scheme regarding payment of the amount to the investors of the respondents herein and that scheme also covers the appellants herein. The order of the Forum has been challenged on following grounds: (i) Section 3 of the Jandk Consumer Protection Act, 1987 (here-inafter to be referred to as the Act) provides additional remedy which is not in derogation of the provisions of any other law for the time being in force. The jurisdiction of the Divisional Forum does not stand automatically ousted merely because of passing of an order or issuance of a direction by the Company Law Board regarding the affairs of respondent No. 1.

(ii) The appellants herein were not a party in those proceedings before the Company Law Board and the orders passed by the Board for fixation and re-fixation of the schedule of payment were passed at their back.

(iii) The Forum has wrongly placed reliance on the judgment of the National Consumer Disputes Redressal Commission which has no application to the facts of the present case.

HEARD the arguments. The learned Counsel appearing for the respondents has placed reliance upon the decision of the National Commission rendered in the case of Allianz Capital and Management Services Ltd. v. B. P. Grover and Ors. , I (2001) CPJ 41 (NC ). The Forum has also relied upon this decision. From a bare perusal being made of the above said judgment it appears that Hon''ble Commission has not laid down any principle of law therein but stopped hearing the case any further because the Company Law Board was seized of the matter. Adverting to the facts of the present case we find that the complaint was brought before the Forum under the provisions of the Jandk Consumer Protection Act which under Section 3 provides an additional remedy to seek the relief. The proceedings pending before the Company Law Board are not bilateral between the parties of this case. The appellants had deposited the specified amounts under a contract where under the respondent No. 1 had taken a liability to pay them the interest accrued thereon and return the deposits along with interest at the respective dates of their maturity. In case there is a breach of duty in providing that facility or service that amounts to deficiency in service as contemplated under the Act. The Company Law Board is a specially created Tribunal under the relevant Act which does not have the jurisdiction in respect of the contract separately entered by the appellants with the respondent No. 1 herein. The learned Counsel appearing for the appellants in order to buttress his contention has cited the case of Kishori Lal v. E. S. I. Corporation, II (2007) CPJ 25 (SC)=air 2007 SC 1819. The Apex Court in this case has dealt with the term ''service'' as defined under Section 2 (1) (o) of the Act and has held that the definition is not restrictive. Only such services are excluded which are rendered free of charge or under contract of personal services. The following observations made by the Apex Court are reproduced: "the expression ''contract of personal service'' in the exclusionary part of Section 2 (1) (o) excluded the services rendered by an employee to his employer under the contract of personal service from the ambit of the expression ''service''. There is a distinction between a ''contract of service'' and ''contract for service''. A ''contract for service'' implies a contract whereby one party undertakes to render service e. g. professional or technical service, to or for another in the performance of which he is not subject to detailed direction and control and exercises professional or technical skill and uses his own knowledge and discretion, whereas a ''contract of service'' implies relationship of master and servant and involves an obligation to obey in the work to be performed and as to its mode and manner of performance. A ''contract of service'' is excluded for consideration from the ambit of definition a ''service'' in the CP Act, whereas a ''contract for service'' is included. "

In the present case, respondent No. 1 has to render the service of making the payments of the deposited amounts along with the agreed rate of interest thereon and on account of failure to make the payments it is a breach of contract for service and as such the Act falls within the ambit of Act. In this view of the matter, we accept the appeal and set aside the impugned order. The Forum below is directed to proceed in the complaint in accordance with law. The parties are directed to appear before the Forum on 29. 1. 2008. The office is directed to send back the record of the Forum immediately. Appeal allowed.