RAGHBIR SINGH vs ZIMINDARA ENGINEERING CO.

THE late delivery of Swaraj-855 make tractor to the complainants and unnecessarily withholding the amount deposited by them on the part of opposite-party 2 in short is the subject matter of the present complaint.

A resume of the facts, as necessary for the disposal of the case, lies in a narrow compass. The complainant, who is an agriculturist, on 27-4-92 deposited an amount of Rs. 1,93,000/-vide cheque No. 426232 drawn on State Bank of Patiala, High Court Branch, Chandigarh with respondent-2. The said cheque was admittedly deposited by respondent-2 on 28-4-92 with their banker, i.e. Indian Overseas Bank, Sector 7-C, Chandigarh and the amount was duly credited to their account by the Bank on 29-4-92. The complainants allege that in consequence of the delivery of the cheque, a tractor was despatched by respondent-2 to its local dealer, respondent-1 in the first week of May for onward delivery to them. The complainants needed the tractor desperately in May, as this month being the harvest as well as sowing season in the Punjab. Even at the time of making the payment, a verbal assurance was given that the tractor would be immediately delivered to them at Fazilka. The local -dealer respondent-1 delivered the tractor, meant for the complainants, to another person. In spite of a number of calls made in the month of May, delivery of the tractor was not effected in the month of May and it was made in the last days of the first week of June 1992, when the harvest and the sowing season had almost come to an end. On account of late delivery of the tractor, the complainants have not been able to sow more than 20 acres of cotton crop. As a result thereof, they have suffered a loss of more than one lac of rupees. On the notice being served, the respondents have put in their appearance and in the separate written statements filed by them, have given their versions. Respondent-2 has inter alia stated that the complainant''s son Sh. Randhir Singh, Asstt. Advocate General, Punjab requested their Legal Advisor, Shri R.P. Sawhney, Advocate to arrange for the delivery of Swaraj-855 at Fazilka and Sh. Sawhney approached respondent-2 and was informed that the tractors were sold to the dealers and the dealers alone sold the tractors to their customers and respondent-2 had no control for delivery of tractors to the customers by the concerned-dealers. Sh. Sawhney conveyed the same to Sh. Randhir Singh. Sh. Randhir Singh again contacted Sh. Sawhney with a local cheque for Rs. 1.93 lacs for getting deposited the same with the answering-respondent in the last last week of April 1992. This time also Sh. Sawhney was informed by the answering-respondent that they could not help his friend in any way. On the personal request of Sh. Sawhney, cheque for Rs. 1.93 lacs was accepted and he confirmed that the complainants would separately contact the Fazilka dealers, respondent-1 for taking delivery of his tractor. No assurance whatsoever was given by any official of the answering-respondent regarding delivery of the tractor in question. Otherwise also, no such assurance could be given, because the answering-respondent never sold tractors to individual customers. Rather, it was the dealer who sold the tractors to the customers.

Respondent-1 in the written statement has stated that the deposit of the amount by cheque is between the complainants and respondents. As a matter of fact, Sh. Raghbir Singh approached the answering-respondent in the month of May 1992 and told that his son was an Assistant Advocate General, Punjab at Chandigarh and he had paid some money to respondent-2 for the purchase of a tractor. However, he did not have any receipt for the deposit of money and he was requested to produce any such receipt forgetting the needful done.On his second visit on 23-5-1992, respondent-2 was contacted and the receipt of the deposit was ascertained. After that, the first tractor Swaraj-855 was delivered to the complainants on 30-5-1992 vide bill No. 087. It is submitted that no tractor was offered for the complainant, nor any other person. The complainants have filed replication controverting the allegations made in the written statements.

IN support of the averments made in the written statements, the respondents have placed on record the affidavits of Harkewal Singh s/o Bachint Singh, Junior Accounts Officer, Swaraj Tractor Division, and Pradeep Kumar s/o Sh. Kanta Prasad, Legal Officer, Punjab Tractors Ltd., i.e. respondent-2 and Surinder Kumar Ahuja, r/o Fazilka, a partner of Zamindara Engg. Co., Fazilka, i.e. respondent-1. Sh. G.S. Bhatia, learned Counsel for the complainants moved an application for directing the respondents to bring the record pertaining to the period of 27-4-1992 to 6-7-1992.

SH. H.S. Awasthy, learned Counsel, appearing for respondents-1 & 2 has produced the relevant record. We have heard the learned Counsel for the parties and with their kind assistance gone through the record. At the outset, Sh. Awasthy, learned Counsel for the respondents has vociferously contended that the complainant is not a "consumer" and he has purchased the tractor for "commercial purpose" and hence, is not entitled to claim relief under the Consumer Protection Act, 1986 (in brief ''the COPRA''). We apprised the learned Counsel of the majority decision of this Commission in Original Complaint No. 28 of 1991, Bhupinder Singh alias Tek Singh v. Omega Agro Private Ltd., decided on 10-7-1993 wherein it has been categorically held that a bare reading of Sec. 2(1)(d)(i) of the COPRA does not spell out the purchase and use of the purchase and use of the insecticide/ pesticide or fertilizer by an agriculturist/tiller to be a "commercial purpose". An apparent perusal of the section does not bring out the will of the Legislature as such. It has been held as under:- "A bare look at the definitions of the terms ''Agriculture'', ''Agriculturists'', ''Agricultural'' and ''commerce'' and ''commercial'' extracted above and putting them a juxta-position to one another, shows that ''commercial'' cannot be ''agricultural'' and ''commerce'' cannot encompass ''agriculture'' and the chasm between the two words is as large as between the earth and the sky. Forgetting the lexical meaning of the words ''commercial'' and ''agriculture'' for the time being, taking the use of the words in the common parlance, I fail to find any prudent man taking the ''commercial'' as ''agricultural'' and vice-versa and treating them as synonymous or at the same padestal and finding the semblence in between."

Placing reliance on the ratio decidendi of the Apex Court in Commissioner Wealth-tax, Andhra Pradesh v. Officer-incharge (Court of Wards) Paigah, AIR 1977 SC 113, wherein it was observed : "15. We think that it is not correct to give as wide a meaning as possible to terms used in a statute simply because the statute does not define an expression. The correct rule is that we have to endeavour to find out the exact sense in which the words have been used in a particular context. We are entitled to look at the statute as a whole and give an interpretation in consonance with the purposes of the statute and what logically follows from the terms used. We are to avoid absurd results.-"

I am of the view that this Commission cannot stretch the term ''any commercial purpose'' used in excluding clause of Sec. 2(1)(d)(i) to include ''agricultural purpose'' to confine the comprehensive definition of the term "consumer". Another cardinal principle of interpretation of statute is that a statement which on its face value is clear, precise and unambiguous, cannot be interpreted by a Court to whittle it down. In the exclusion clause, the Parliament had omitted to put the word ''agriculture'' in the exclusion clause and it will be perverse, absurd preposterous and unreasonable on the part of this Commission to import it in the exclusion clause or to discover so. Expressum Facit Cesare Taciturn (What is expressed makes what is silent to cease).

THE Apex Court in Kanwar Singh v. Delhi Admn., AIR 1965 SC 871 has held that it is the duty of the Court in construing a statute to give effect to the intention of the Legislature. If, therefore, giving a literal meaning to the word used by the draftsman, would defeat the object of the Legislature, which is to suppress the mischief, the Court can depart from the dictionary meaning or even the popular meaning of the word and insist to give it the meaning which will advance the remedy and suppress the mischief.

THE celebrated observations of Denning LJ, in Seaford Court Estates Ltd. v. Asher, (1949 (2) Kings Bench 481) to the following effect are holding the field and being applied and followed by "the Courts throughout the country:- Whenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and even if it were, it is not possible to provide for them in terms free from all ambiguity. THE English language is not an instrument of mathematical precision. Our literature would be much poorer if it were. This is where the draftsmen of the Acts of Parliament have often been unfairly criticised. A Judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the Judges trouble if Acts of Parliament were drafted with divine prescience and perfect clearity. In the absence of it, when a defect appears a Judge cannot simply fold his hands and blame the draftsmen. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which give rise to it, and of the mischief which was passed to remedy, and then he must supplement the written word so as to give "force and life" to the intention of the legislature."

In view of the guiding, observations above, the kernel question arises, whether the Redressal Agencies under the Act should fold their hands and blame the Draftsmen for the lacuna or in the alternative to give "force and life" to the real intention of the Legislature. The answer, in my view, must be the latter one. This seems to be more so because it has now come to be settled that the COPRA is a beneficient statute, in construing which the object thereof has to be furthered, and where two constructions are reasonably possible the broader one must be adopted if it advances its larger purpose. This has been authoritatively so held in the Regional Provident Funds Commissioner, Punjab v. Shib Metal Works, AIR 1965 SC 1076 in the following terms :- "If the words used in the entry are capable of a narrow or broad construction, each construction being reasonably possible, and it appears that the broad construction would help the furtherance of the object, then it would be necessary to prefer the said construction."

As elucidated above, the intendment of the COPRA is to wipe out and finish the exploitation of the consumer in every walk of life. Faced with this, this Commission cannot infer, perceive, conceive, discern and behold that the Legislature ever intended to exclude the hapeless and innocent agriculturist exploited to the hilt out of the purview and ambit of the COPRA and to keep, in a primarily agricultural country like ours, the vast arena and agricultural purpose outside the pale of the beneficial and social COPRA.

The Punjab & Haryana High Court, interpreting the words "agricultural transactions" as used in Sec. 34, Code of Civil Procedure, in case Krishan Lal v. State Bank of Patiala & Ors., 1990 (1) PLR 133 has held that a loan for the purchase of mechanising cart cannot be remotely connected with ''commercial transaction'', connected with industry, trade or business of the parties incurring the liability. Similar to the effect is the judgment of the Karnataka High Court reported in Canara Bank v. K.S. Kushalappa & Ors., AIR 1990 Karnataka 145, holding that by no means can it be said that development of Cofee Estate is either business or trade or commerce or industry.

THE point does not seem to be res integra even for nascent consumer jurisdiction. A reading of the judgment of the National Commission in M/s Indra Fabricators & Ors. v. M/s Pineapple Marketing Co-op. Society Ltd., I (1992) CPJ 327 (NC) and M/s Jyoti Marketing & Products Ltd. & Anr. v. M. Pandian & Anr., I (1992) CPJ 337 (NC) would answer the question posed, in the negative. In re Indra Fabricator''s case (supra), the National Commission held that forming a society by about 1,500 pine-apple growers and setting up a processing unit cannot be said to be a "commercial activity".

IN M/s Jyoti Marketing & Products Ltd''s. case (supra), the Apex Commission has held the purchase of pump-set for irrigating sugar cane cash crop, patently an agricultural purpose :- "The main thrust of the argument of the learned Counsel for the appellants was that the pump set had been purchased by the complainants for irrigating sugar cane cash crop and therefore, it must be held that the said purchase had been for a commercial purpose and hence, the complainants are not "consumers" and consequently, their complaint is not maintainable under the Consumer Protection Act, 1986. This argument has to be rejected for various reasons. First of all, as mentioned earlier, the joint family for the benefit of which the pump set was purchased owns in all only seven acres of land. Therefore, to earn their living in a better way the family wanted to irrigate their sugar cane cash crop by lift irrigation and for what purpose they had purchased a pump set. It has been repeatedly held by the Commission that when a person buys any article for consideration to use it for some self employment in order to earn his livelihood, the purchase is not for a commercial purpose. The other reason is that the irrigation of the land by the pump set had no proximate nexus with the ultimate produce or price of the crop. The crop depends upon various factors like seeds, fertilizers, pest control etc. If the seed is bad then there will not be good crop. Moreover, practically most of the produce from the land comes to the market. Hence, we hold that the complainant falls within the term "consumer" as defined in the said Act. If the farmers forming a society and setting up a processing unit the purchase of a pump-set for sugar-cane cash crop are held to be "consumers" under the COPRA, how can the contention that the purchase of ''Endosulfan 35% E.C by an agriculturist for increasing the productivity of the land tilled by him would amount to a "commercial purpose" and he would not be a "consumer", be sustained and hence, thereby entertained, considered, rejected and repelled. xxx xxx xxx"

The learned Counsel did not adduce any material or advance any meaningful argument to distinguish the majority view of this Commission in Shupinder Singh''s case (supra) and reiterated in Original Complaint No. 15 of 1992, Pritam Singh etc. v. Omega Agro Private Ltd., decided on 27-7-93 and Bhim Sain v. Omega Agro Private Ltd., decided on 3-8-1993 (Original Complaint No. 16 of 1991). For the foregoing reasons, the legal question posed at the outset by the learned Counsel for the opposite-parties is rendered in the negative. In fact, such a contention cannot be countenanced and is directly contrary to the ratio of the Commission in the cases (supra). This very question has come up for pointed notice and this Commission has observed, as said above, and thereafter concluded in the terms recorded above. Therefore, we do not find any modicum of merit in the submission of the learned Counsel and hold that the purchase of the tractor by the complainants for the cultivation of their lands does not bring them out of the ambit of the comprehensive definition of the word "consumer" and does not put the complainants in the exclusion clause of the phraseology as given in Sec. 2(1)(d)(i) of the COPRA. Apart from the aforesaid legal position, on merits also the opposite-parties'' case has no legs whatsoever to stand upon. It would be manifest from the facts stated above, that the cheque of Rs. 1,93,000/- was deposited by the complainants with respondent-2 on 27-4-92 and on 28-4-92 it was deposited by respondent-2 in its bank and on 29-4-92 it was encashed and the amount thereof credited to the account of respondent-2. It is further admitted by the learned Counsel for the respondents and it is so obvious from the affidavit of Surinder Kumar Ahuja that on 23-5-92, respondent-2 informed respondent-1 regarding the deposit of Rs. 1,93,000/- by the complainants with them and it is so made out from the statement showing details of the deposit of the amount in the Annexures to the affidavit of Surinder Kumar Ahuja. Sh. Awasthy, learned Counsel has stated that on 15-5-92 the bank had intimated about the encashment of the cheque deposited by the complainants and on 23-5-92, intimation was sent by respondent-2 to respondent-1 and there is no delay whatsoever on the part of the respondents.

SH. Bhatia, learned Counsel for the complainants has stated that from the statement of facts, annexed to the affidavit of Surinder Kumar Ahuja, it is categorically made out that if the intimation of deposit of Rs. 1,93,000/- by the complaints with respondent-2 had been sent to respondent-1 by 30-4-92, the complainants would have positively received the tractor much prior in time.

AFTER giving our anxious consideration to the respective contentions made at the bar by the learned Counsel for the parties and scrutinising the record placed before us, we find that there is no modicum of merit in the case of respondent-2 that on 15-5-92 it came to know of the clearance of the cheque for Rs. 1,93,000/- deposited by the complainants on the intimation of their Bank. Such a plea appeals to us to be a plea of desperation. It does not find a mention even in the written statement of the respondents. It is absolutely an afterthought and beyond foundational edifice made in the replies. Otherwise also, it does not appeal to our common sense that having accepted the cheque for Rs. 1,93,000/- on 27-4-1992; depositing the same on 28-4-1992 in their bank, the respondents would not come to know till 15-5-92 qua the encashment of the amount of the cheque on 29-4-92. In any case, there is no explanation whatsoever offered or placed for withholding the information of the deposit of the amount of Rs. 1,93,000/- by respondent-2 from 15-5-92 to 23-5-92. On the present record it stood virtually established that respondent-2 has arbitrarily, capriciously, unreasonably and unnecessarily and without any authority kept itself the amount of Rs. 1,93,000/- deposited by the complainants for the delivery of the tractor (as per the case of respondent-2 itself meant for onward transmission) from 29-4-1992 to 23-5-1992. Respondent-2 has apparently treated the complainants unfairly and has deprived them of the benefit of the amount without any authority supported by law and has proved to be somewhat deficient in service. For the reasons recorded above, we are of the view that respondent-2 has somewhat harassed the complainant-consumers and cannot escape from the clutches of the COPRA and hence, it would not be unfair and inequitous to direct respondent-2 to pay to the complainants interest at the rate of 18% p.a. on the amount of Rs. 1,93,000/- from 27-4-92 to 23-5-92 and we think this interest would be sufficient and meet the ends of justice to compensate the complainants for the delay caused in the delivery of the tractor and causing mental agony etc. to them. However, in addition to the interest, the complainants will be entitled to the modest costs of this litigation of Rs. 2,000/-. We direct respondent-2 to comply with our directions within two months from the receipt of the copy of this order. To be fair to the complainant-consumers, we take cognizance of the facts that they have alleged in their replication, that as per terms and conditions during warranty period, the respondents were required to give free service of the tractor. After lodging of the complaint, they took the tractor in question to the workshop of respondent-2 who refused to entertain the free checking and free of costs service thereof. Not a hint of such defective service has been pointed out in the complaint. We are of the view that in the summary jurisdiction conferred upon this Commission under the COPRA, an altogether new plea taken up for the first time in the replication cannot be used as a device for the grant of relief to the complainants. They, if so advised, may approach the appropriate Forum for redressal of their grievance put forth for the first time in the replication.

No other point was pressed.

IN the result, the complaint is allowed in the terms indicated above. Complaint allowed with costs. _________________