POOJA SALES PRIVATE LTD. vs M.S.KHAN

FEELING aggrieved against the order dated 30.7.91 passed in complaint Case No. 536/91 by the District Forum, Jaipur the opposite party before the District Forum has filed this appeal under Sec. 15 of the Consumer Protection Act, 1986 (herein "the Act"). Though the facts have been given with considerable detail in the order appealed against, we consider it proper to notice only those facts which are necessary for the disposal of the appeal.

THE complainant-respondent has alleged that it is an advertising agency carrying on the business in the name of Mount Advertising Pvt. Ltd. THE complainant has taken a contract from the Municipal Council, Jaipur to put its hordings in the shape of advertisement at the bus shelter, Lal Kothi, Tonk Road, Jaipur for the year 1990-91. Similarly for the year 1991 another bus shelter towards the Secretariat for putting hordings, a contract with Mahavir Advertising Bureau, the work which was looked after by Shri Shripal Jain. THE opposite party, Pooja Sales Pvt. Ltd. took it for one year @ Rs. 1,100/- per month and an agreement (Exhibit 1) was executed between the parties. THE material part of that will be dealt with herein under. Similarly the contract was given to the opposite party by Mahavir Advertising Bureau @ 1,100/- per month. THE agreement in respect of which has been produced and marked Exhibit 2. THE complainant sent bill No. 206 dated 14.11.90 for 5 month''s hire amounting to Rs. 5,500/-. Similarly bill No. 207 dated 18.11.90 bill for Rs. 5,500/- was sent for payment. Both the bills have been submitted and marked as Exhibit 3, and Exhibit 4, and for excess painting opposite party submitted additional bill No. 225 dated 25.3.91 for Rs. 600/-. It was also sent. That has been produced as Exhibit 5. Against the outstanding amount of Rs. 11,600/-, the opposite party merely paid Rs. 6,600/- and Rs. 5,000/- were outstanding. THE complainant again sent bill No. 226 dated 1.4.91 for 7 months of Rs. 7,700/- for payment without delay which has been produced as Exhibit 6. Similarly Rs. 7,700/- was out standing of Mahavir Advertising Bureau against the opposite party in respect of bill No. 227 dated 1.4.91. According to the complainant a sum of Rs. 27,000/- was outstanding against the opposite party out of which Rs. 6,600/- were paid and a sum of Rs. 20,400/- remained outstanding. THE complainant produced the photographs of the advertisement marked as Exhibit 9. THE opposite party did not pay the amounts of the bills and sent a reply dated 13.4.91. THE complainant has, therefore, filed the complaint which has been signed by Shri Pal Jain and M.S. Khan for the award of Rs. 20,400/- with interest and compensation. It may be stated that the complaint was filed by Mr. M.S. Khan. An unsworn affidavit was submitted with the complaint. Notice was issued to the opposite party. It appears from the proceedings of the District Forum that the notice was not served on the opposite party and it was ordered that a fresh notice be issued about which intimation was given to the complainant. The complainant submitted that the service of the notice may be awaited and so it was awaited and the date fixed was 9.7.91. On 9.7.91 the absence of the opposite party was recorded. Ex-Parte arguments were heard and the complaint was posted for orders on 16.7.91 and the order under appeal was pronounced on 30.7.91. By the impugned order the District Forum accepted the complaint in part and ordered for the payment of Rs. 20,400/- to the complainant within one month from the date of the order failing which the opposite party will be liable to pay interest @ 18% p.a. on the amount of Rs. 20,400/-. Hence this appeal.

We heard Mr. Ashok Mehta, learned Counsel for the appellant and Mr. M.S. Khan and Mr. Sripal Jain and examined the complaint, the documents submitted with the complaint, the proceedings of the District Forum and the order appealed against in the light of the submissions made by the parties. It was pressed for our consideration by Mr. Ashok Mehta, learned Counsel for the appellant that the complaint has been decided after recording absence of the opposite party though the notice of the complaint was not served on it. It may be stated that the complaint was filed on 30.5.91 and an order was made on 29.6.91 for the issuance of a fresh notice as the notice was not served and the next date fixed was 9.7.91. On 9.7.91 presence of the complainant was recorded and the absence of the opposite party was mentioned. Ex-parte arguments were heard and the case was listed for orders on 16.7.91. The order was not pronounced on 16.7.91 which was changed and subsequently pronounced on 30.7.91. Our attention was drawn to the fact that the appellant was not served according to law. It was pointed out that it is written that the person who took the summons ''Dasti'' went at the address given. He found the Proprietor of the firm there who refused to take the notice and, therefore, it was affixed. Mr. Mehta urged that this affixation was not correct and even if an affixation was done it is not according to the rules provided in the Civil Procedure Code. He also submitted that the manner and mode of service which was adopted by the District Forum for service on the opposite party were not contemplated by the Act or the rules framed thereunder. The pith and substance of the arguments in this connection is that the opposite party was not served properly and, there fore, resorting to ex-parte proceedings and disposal of the complaint in the absence of the opposite party was illegal and in flagrant disregard of the provisions contained under the Act and Rules. It was also contended that the complaint as filed before the District Forum was not maintainable under the Act.

WE do not consider it necessary to make a detailed probe in regard to the matter relating to service in view of the conclusion to which we have arrived at viz. that the complaint which was filed before the District Forum was not maintainable and no relief whatsoever could be granted by the District Forum to the complainant in this regard. The complainant has produced Exhibits 1 & 2 which are agreements executed on the docket of Mount Advertising Pvt. Ltd. It is mentioned in the agreement that it is a "contract form" for the Advertiser viz. Pooja Sales Pvt. Ltd. It is written "we hereby agree to engage the hoarding(s) site detailed below for our advertising purpose upon the terms and conditions mentioned on the reverse of this letter head and also set out hereunder, and both will govern this contract". WE may hasten to mention that there are no terms and conditions mentioned on the reverse. The following clauses may also be noted. "Annually in advance payable before the commencement of the contract and thereafter atleast thirty days below expiry of each paid period. One year w.e.f. the date of display. One free painting a year according to party''s design. Any extra painting will be charged. For due performance of the contract a sum of Rs. will be held as security deposit to be adjusted against the instalment or rental and other charges payable, the balance if any will be refunded".

These agreements Exhibits 1 & 2 are signed by the parties. In pursuance of these agreements the case set up by the complainant is that the sums of bill No. 227 dated 1.4.91 have not been paid as hire. It may be recalled that hire agreed was @ Rs. 1,100/- per month and the arrears for both was for 7 months. Thus for 14 months @ Rs. 1,100/- p.m. the amount was due. The total sum according to the complainant was Rs. 27,000/- out of which Rs. 6,600/- were paid and so a sum of Rs. 20,400/- was outstanding for which the complainant has claimed relief that it may be ordered to be paid without delay, and interest and compensation may be awarded on it.

THE principal question that arises is whether such a complaint is maintainable under the Act. Before proceeding further it will be relevant to notice the definitions of the ''complainant'' ''complaint'', ''consumer'', ''consumer dispute'', ''deficiency'' & ''service'' as defined in Sec. 2(1)(b), (c), (d), (e), (g) & (o) of the Act. "2(l)(b) "Complainant" means - (i) a consumer; or (ii) any voluntary consumer association registered under the Companies Act, 1956 or under any other law for the time being in force; or (iii) the Central Government or any State Government, who or which makes a complaint; (c) "Complaint" means any allegation in writing made by a complainant that - (i) as a result of any unfair trade practice adopted by any trader, the complainant has suffered loss or damage; (ii) the goods mentioned in the complaint suffer from one or more defects; (iii) the service mentioned in the complaint suffer from deficiency in any respect; (iv) a trader has charged for the goods mentioned in the complaint a price in excess of the price fixed by or under any law for the time being in force or displayed on the goods or any package containing such goods, With a view to obtaining any relief provided by or under this Act".

"(d) "Consumer" means any person who, - (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for re-sale or for any commercial purpose; or (ii) hires any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person".

"(e) "consumer dispute" means a dispute where the person against whom a complaint has been made, denies or disputes the allegations contained in the complaint".

"(g) "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service".

"(o) "service" means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, entertainment, amusement or the purveying of news or other information but does not include the rendering of any service free of charge or under a contract of personal service".

It is thus clear that the complainant amongst others means a consumer. According to the definition of the complaint as given in the Act, it means any allegation in writing made by a complainant amongst others that the services mentioned in the complaint suffered from deficiency in any respect. Now admittedly, the complainant is not a consumer of goods. His case as disclosed if at all is that he has hired the services for consideration. Consumer dispute is where the complaint has been made and the allegations made therein are denied or disputed. Here it is a simple case of recovery of hire charges which have not been paid to the complainant by the opposite party. By no stretch of imagination the complainant can be said to be a consumer and if anybody is consumer it is the opposite party. We need not make a detailed probe in respect of this matter for the simple reason that the complainant has claimed hire charges on the basis of the agreement which was accepted between the parties in respect of fixing the hoardings. The opposite party, according to the averments made in the complaint, committed breach of the agreement and so complaint for recovery of hire charges was filed. It is firmly established by the National Commission that a Redressal Forum constituted under the Act can only grant those reliefs which are enumerated under Sec. 14(1) of the Act. Learned counsel appearing for the complainant-respondent could not satisfy us that the relief for recovery of the hire charges based on the ground under Sec. 14(1) of the breach of the agreement is a relief which can be granted under Sec. 14(1) of the Act. Reference in this connection may be made to RIICO v. M/s. Premier Paints (1991 CSMR CAS 33, 1991 CSM CAS. 417 and 1991 CSMR CAS 45). Having perused the complaint and the documents submitted with it and the definition mentioned herein above we are of the opinion that the complaint filed by the complainant does not satisfy the ingredients of the complaint and the complainant is not a consumer within the meaning of Sec. 2(1)(d)(ii) of the Act. Apart from this the reliefs which the complainant had sought in the complaint cannot be granted under Sec. 14(1) of the Act. The District Forum completely went wrong when it passed the order for payment of Rs. 20,400/- being the amount of hire charges on the basis of the agreements relied on by the complainant. In view of this conclusion we do not consider it necessary to examine the other points raised by the learned counsel for the appellant. We are constrained to allow this appeal. Set aside the order dated 30.7.91 passed by the District Forum, Jaipur in Complaint Case No. 536/91. The complainant shall pay Rs. 500/- as costs to the appellant. Appeal allowed.