RAKESH AGGRAWAL vs RAJU PUDIR

THIS is an appeal against the order dated 6.1.1996 passed by District Consumer Disputes Redressal Forum, Vidisha in their Case No. 43/93, wherein the District Forum has dismissed the complaint of the appellant on two grounds, firstly that the appellant is not a "consumer" and secondly that the District Forum, Vidisha has no territorial jurisdiction to try this case.

HEARD the arguments of both the parties and perused the records of the case. "Consumer" has been defined in the Consumer Protection Act as under:- "2(1)(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 resale or for any commercial purpose; or (ii) (hires or avails of) 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 or avails of) 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;

(Explanation-For the purposes of Sub-clause (i) "commercial purpose" does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment).

A minute perusal of the above definition will show that the exclusion clause of "commercial purpose" applies only in case of "goods" purchased and not in case of "services" hired or availed of. The instant case is of "service" hired and not "goods" purchased. As such even if the complainant is a commercial organisation, he is very much "consumer" of "service'' hired. As such this finding of the Forum is set aside that the complainant is not a consumer.

SO far as the question of territorial jurisdiction is concerned. Sub-section (2) of Section 11 of the Consumer Protection Act regarding the territorial jurisdiction is as under:- "(2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,- (a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides of (carries on business or has a branch office or) personally works for gain; or (b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint actually and voluntarily resides, or (carries on business or has a branch office) personally works for gain, provided that in such case either the permission of the District Forum is given or the opposite parties who do not reside or (carry on business or have a branch office) personally work for gain, as the case may be, acquiesce in such institution; or (c) the cause of action, wholly or in part, arises."

In the instant case, there is nothing on record to show that the opposite party actually and voluntarily resides or carries on business or has a branch office or personally works for gain, in the territorial jurisdiction of District Forum, Vidisha. The complainant has nowhere stated in the complaint as to how and why District Forum, Vidisha has jurisdiction to try a case against a party, whose address as given in the complaint itself is beyond the territorial jurisdiction of District Forum, Vidisha.

NOW the only point to be seen is "did the cause of action, wholly or in part arise" in the territorial jurisdiction of District Forum, Vidisha according to Sub-section 2(c) of Section 11. The complainant, in his complaint, nowhere explained as to how the cause of action, even partly arose in the territorial jurisdiction of District Forum, Vidisha. The argument placed before us that the agreement was executed at Vidisha finds no place in the main complaint. The appellant Mr. Rakesh Agrawal has stated in his cross-examination in para 44 that no written agreement was executed in respect of supply of technical know how for production. In para 42 he has stated that except for project report he got nothing from opposite party. In para 23, the appellant admits that except for project report Ex. P-5, there was no agreement in writing, nor is it stated anywhere in Exs. P-5 to P-8 (the receipts for Rs. twenty thousand paid) that trial demonstration shall be given. Under these circumstances, we do not find any reason to feel that the cause of action may have even partly arisen at Vidisha. As such, we agree with the finding of the Forum that they had no territorial jurisdiction to try the complaint. However, we do not find any justification in the Forum''s this part of the order that if the complaint is not withdrawn within a period of one month, it shall be deemed to be dismissed. The complainant shall be at liberty to file this complaint before the competent Forum having jurisdiction. Orders passed. ________________