BRISH BHAN AGARWAL vs SANJAY KUMAR TRIPATHI

THIS is an appeal against the judgment and order dated 9.5.2000 passed by District Consumer Forum, Sonbhadra in Complaint Case No. 318/ 1996.

THE facts of the case stated in brief are that the complainant was an unemployed person. Hence he contacted the proprietor of M/s. Agarwal Stone Products (P) Limited. THEre was an agreement between them of 9.4.1993 for purchase of a dumper No. UAN 9560 for a sum of Rs. 2,50,000/-. A sum of Rs. 38,000/- was given in cash in presence of the witnesses and the rest of the amount was to be paid from the income of the dumper when it was to be on road. An agreement to this effect was there in writing. Previously this was a truck and later on it was converted into a dumper which was sold by the opposite party to the complainant. After the purchase of the dumper, it was put on service on rent with the opposite party/appellant. Whenever the complainant asked about the accounts, he was told that the entire amount has been spent in maintenance. The complainant thereafter paid a sum of Rs. 1,50,000/- on 30.4.1993, Rs. 12,000/- on 15.5.1993, Rs. 25,000/- on 29.8.1994, and lastly a sum of Rs. 25,000/- in December, 1995. In this way the entire amount was satisfied. The appellant/ opposite party has not transferred the vehicle in favour of the complainant even after payment of the entire amount. The amount which was earned out of dumper was shown in maintenance. It is further alleged that a sum of Rs. 500/- per day must have been earned from the use of dumper. It is directed that till the vehicle is transferred in the name of the complainant, interest at the rate of 24% per annum be awarded to him on the total amount of Rs. 2,50,000/-.

The opposite party in its written version has alleged that he has sold the dumper for Rs. 2,50,000/- but was paid only a sum of Rs. 1,25,000/-. The rest of the allegations of the complaint have been denied. It is alleged that this complaint is not maintainable in the District Forum. When the complainant did not pay the amount, he filed the complaint. He is not entitled for any interest or compensation. It is further alleged that forgery has been committed and the receipt dated 30.4.1993 for Rs. 1,50,000/- is wrong as he has only paid a sum of Rs. 50,000/- and the figure "1" has been inserted before "50000".

THE parties filed evidence before the learned District Forum and the District Forum, after considering the facts of the case, came to the conclusion that the entire payment has been made. It directed the opposite party/ appellant to pay to the complainant a sum of Rs. 2,25,000/- and to pay 15% per annum interest on the above amount from 29.8.1994 till the date of payment along with Rs. 2,000/- as cost. Aggrieved of this order, the opposite party has come in appeal and has challenged the correctness of the order passed by the District Forum. We have heard the learned Counsel for the parties.

LEARNED Counsel for the appellant/ opposite party has raised a preliminary objection that this complaint was not triable by the District Forum as it is a case of outright sale and purchase and no element of service was involved. According to the case of the complainant he has purchased the dumper from the opposite party/ appellant for a sum of Rs. 2,50,000/-. The possession of the dumper was handed over to the complainant. A sum of Rs. 38,000/- was given in the beginning and the rest of the amount was to be given later on. Thus we find that it was a case of outright sale and purchase and no element of service was involved in it. The complainant has not hired the services of the opposite party/appellant. The opposite party/ appellant has merely sold his dumper for a consideration of Rs. 2,50,000/- out of which Rs. 38,000/- was taken in advance and rest money was to be paid by the complainant. Therefore, in the case of sale and purchase where no service is involved, the provisions of Consumer Protection Act will not apply and the complainant will not be a consumer. A perusal of the written document dated 29.4.2000 makes this point clear. The first case is of Punjab Water Supply and Sewage Board v. M/s. Udaipur Cement Works & Anr., I (1996) CPJ 7 (SC). In this case the Hon''ble Supreme Court has held that where the element of service is involved, the provisions of Consumer Protection Act applies. The facts of this case which have been incorporated in the judgment of the Hon''ble Apex Court are as under which were found by the State Commission : "Certain undisputed facts emerge in this case. The salient ones are that the complainant placed an order for the supply of cement with the respondent firm and for this purpose, an amount of Rs. 23,62,900/- was remitted to the respondent- firm and by means of three bank drafts. According to the order as confirmed 2500 M.T. cement had to be supplied on or before 7.3.1988. There is also no controversy about the fact that the goods in question were delivered to the complainant in November, 1990 and that too at the higher rate and not at the original rate as agreed to at the time of placing the order. In the wake of these undisputed facts, the points raised in defence on behalf of the respondent- firm may be considered." A perusal of these facts will go to show that an order was placed for supply of cement. The cement was to be supplied before 7.3.1988, but it was supplied only in the month of November, 1990 after a lapse of 2 years. The rate of the cement was also charged higher than the one agreed at the time of placing the order. Thus in this case there was a deficiency in service in not supplying the cement within the time agreed upon by the parties and also charging extra price for the supply of cement. The facts of the present case are entirely different. In the present case there was no period during which the supply was to be made because after purchase of the dumper at deferred payment, the possession of the dumper was handed over to the complainant. It was no deficiency on the part of the appellant/opposite party.

THE complainant also alleged that whenever accounts were asked for from the opposite party/appellant, it was told that the entire amount has been spent in the maintenance of the dumper. He has also alleged that income from the dumper was Rs. 500/- per day. According to the complainant he has paid certain amount to the opposite party while the opposite party states that a receipt of Rs. 50,000/- had wrongly been converted into Rs. 1,50,000/-. Thus we find that a forgery has been committed as alleged in the receipt issued by the opposite party/appellant to the complainant. All these matters cannot be looked into in these summary proceedings by District Forum/State Commission. THEse matters are to be decided by the Civil Court and not by this Commission or District Forum in summary proceedings.

THE next case is Rajat Kumar Bhadra v. Supercon Engineers & Contractors, III (1999) CPJ 1 (NC)=(2000) NCJ 4 (NC). In that case the contract was not clear and it was decifered from the correspondence which took place between the parties. It is not the case here. Here the contract is clear enough which has been reduced in writing. THE third case law which has been placed before us is M/s. Dinex (India) Ltd. v. M/s. Shree Engineering, Consumer''s Companion 124. This is a case law decided by this Commission. THE facts of this case are also entirely different. THEre was an agreement for supply of goods about which there was a breach. In that case a sum of Rs. 2,00,000/- was paid in advance against the price of Rs. 8,00,000/- for which a plant was to be supplied. THE plant was not supplied and the complainant requested for refund of the amount of Rs. 2,00,000/-. Thus this case law does not help the complainant. Thus on the basis of discussions above, it is clear that the District Forum has no jurisdiction to try this case as this is a case of outright sale and purchase, the question of forgery of the receipt is also involved and the matter relates to accounting of the proceeds which were received from the dumper.

Thus it is held that District Forum or the State Commission have no jurisdiction over this matter and the remedy of the complainant lies elsewhere. ORDER The appeal is allowed and the judgment and order of the learned District Forum are set aside, the complaint is dismissed. The complainant is directed to approach the proper Forum for redressal of his grievance. Let copy as per rules be made available to the parties. Appeal allowed.