REITZEL INDIA LTD. vs P.M.MUNIRAJU

THIS is an appeal filed by the opponent in Complaint No. KDF/COM/19/95 on the file of the District Forum, Kolar, in which the opponent has been asked to pay a sum of Rs. 34,000/- within a period of two months from the date of the order with interest @ 18% per annum on the said amount by an order dated 5.11.1998.

THE necessary facts for the purpose of disposal of this appeal are these : On the representation of the opponent and on the facility provided by the opponent, the complainant had sown the seeds of Gherkins (cucumber) in his land in the month of December, 1993 and the 1st crop began to yield from 24.1.1994 and the opponent transported the yield in their vehicle till 24.3.1994 after paying the amount as agreed between the parties. THE complainant had sown the Gherkin seeds again in the month of April, 1994 as second crop and the said crop began to give yield from 30.5.1994 and the opponent used to transport the said yield in their vehicle daily for a period of 15 days and thereafter from 15.6.1994 till 28.6.1994, the opponent did not take the harvested Gherkins even though they were harvested daily and consequently the harvested crops were spoiled and the complainant suffered loss. It was the further case of the complainant that on 17.6.1994 and 18.6.1994, he informed the opponent about the inconvenience and the loss suffered by him and the opponent had promised him that he would send his vehicle and would take the harvested Gherkins. Since the Gherkins were not taken as assured by the opponent, the complainant gave written request to the Field Officer of the opponent. Even to the said request, there was no proper response from the opponent. He has further stated that from 28.6.1994 to 2.7.1994, the opponent got transported good variety of Gherkins and thereafter did not transport the harvested Gherkins and they got spoiled and consequently the complainant suffered loss. THE complainant got issued a legal notice and the said notice was replied by the opponent denying the claim of the complainant. Hence, he has filed this complaint to grant the relief mentioned in the complaint. On receipt of the notice from the District Forum, the opponent filed its objection requesting the District Forum to dismiss the complaint. The opponent had admitted about raising the Gherkins crop by the complainant in his land and the assistance rendered by the opponent in transporting the said crop from the land of the complainant. The opponent has also admitted the receipt of the notice and submitted that the said notice was suitably replied. The opponent has further contended that the Company had arranged to collect the harvested crop from the villages or nearby centres depending upon the situation and to the above facts, it had entered into an agreement with the complainant on 12.4.1994 and as per the terms of the agreement, it was the complainant who agreed for the delivery of the produce at the collection centres specified by the Company and since the complainant has not supplied the said crop to the collection centre, the opponent was not able to transport those Gherkins. On all these grounds, the opponent requested the District Forum to reject the complaint.

On behalf of the complainant, he got examined three witnesses including himself as P.Ws. 1 to 3 and got marked Exs. T1 to P54. On behalf of the opponent, three witnesses were examined as R.Ws. 1 to 3 and produced Exs. R1 and R2. Ex. R1 is the agreement entered into between the complainant and the opponent dated 12.4.1994.

AFTER hearing the arguments on both the sides and on the basis of the materials placed by the parties, the District Forum came to the conclusion that the complainant has proved deficiency in service by the opponent and he has suffered a loss and awarded a sum of Rs. 34,000/- In this appeal, the learned Advocate Mr. R. Sreedhar, appearing for the appellant, submitted before us that the District Forum was not justified in passing the impugned order in view of the fact that the complainant is not a ''Consumer'' and the said complaint could not have been entertained by the District Forum. He submitted that the District Forum failed to appreciate that the complainant was not a ''Consumer'' as defined in the Consumer Protection Act, since he neither hired the services of the opponent nor purchased the goods from him for consideration. According to him, the complainant was in the position of a seller and that being so he cannot maintain the complaint before the District Forum.

WE heard the learned Advocate Mr. Chandrashekar, on behalf of the respondent on this point. He strongly opposed the said contention on the ground that this contention was not taken up before the District Forum either in the version or during the course of the arguments. He submitted before us that the appellants/opponent is not permitted to raise a new plea which was available before the District Forum which was not raised before the said Forum. He submitted that it cannot be raised for the first time in this appeal. He pointed out that the District Forum, on the basis of the materials placed by the parties, has come to the correct conclusion and there is no illegality committed by the District Forum in passing the impugned order. Hence, he requested this Commission to dismiss this appeal. Let us consider this appeal in the light of the arguments advanced by both the sides. It is an admitted fact and it is not disputed by the learned Advocate for the appellant that the plea that the complainant is not a ''Consumer'' has not been raised before the District Forum. However, the learned Advocate Mr. R. Sreedhar submitted before us that since this contention goes to the very root of the case as well as the jurisdiction of the District Forum, it could be raised at any time. In this connection, he has invited our attention to a decision of the Supreme Court reported in AIR 1973 SC 2391, Chandrika Misir & Anr. v. Bhaiyalal. In the said case, the Supreme Court, in paragraph-6, has observed as follows : "6. It is from this order that the present appeal has been filed by special leave. It is to be noticed that the suit had been filed in a Civil Court for possession and the Limitation Act will be the Act which will govern such a suit. It is not the case that U.P. Act No. 1 of 1951 authorises the filing of the suit in a Civil Court and prescribes the period of limitation for granting the relief of possession superseding the one prescribed by the Limitation Act. It was, therefore, perfectly arguable that if the suit is one properly entertainable by the Civil Court the period of limitation must be governed by the provisions of the Limitation Act and no other. In that case, there would have been no alternative but the. plaintiffs. But the unfortunate part of the whole case is that the Civil Court had no jurisdiction at all to entertain the suit. It is true that such a contention with regard to the jurisdiction had not been raised by the defendant in the Trial Court. But where the Court is inherently lacking in jurisdiction the plea may be raised at any stage, and, it is conceded by Mr. Yogeshwar Prasad, even in execution proceedings on the ground that the decree was a nullity."

The second decision on which reliance was placed by the learned Advocate Mr. Sreedhar is reported in AIR 1971 SC 1552, R.J. Singh Ahluwalia v. The State of Delhi, in which the Supreme Court, in paragraph-3 of the judgment, has observed as follows : "This ground of challenge had, of course, not been raised in either of the two Courts below but since it went to the root of the case, being a jurisdiction point we considered it just and proper to allow it to be raised. We accordingly adjourned the hearing on July 21, 1970 to enable the Counsel for the State to obtain instructions on this point and to inquire whether the Home Ministry had sanctioned the appellant''s prosecution. On August 5,1970, the next date of hearing, Shri Sachthey stated at the Bar that the Home Ministry had not sanctioned the appellant''s prosecution and it was conceded before us that in the absence of such sanction the prosecution must fail."

From the above two decisions, it is clear that though the contention was not raised before the District Forum, since it goes to the very root of the case and it takes away the jurisdiction of the District Forum, the said contention can be raised before this Commission. In this connection, it will be pertinent to refer to the agreement entered into between the parties which has been marked as Ex. R1. Clauses 3, 4, 8, 9 and 19 read as follows : "3. It shall be the responsibility of the farmer to take adequate/necessary steps for growing the said crops and also ensuring that the technical guidance and instructions are given by the Company are followed faithfully and that the Farmer undertakes to comply with regard to the quality of seeds to be used, grades/variety of fertilizers to be used and also the measures stipulated for plant protection including the usage of plant protection chemicals."

"4. It shall be the responsibility of the farmer to grade and sort the crops grown as per the specifications given by the Company from time to time and also for organising delivery of the said crops/ produce to the collection centres as may be specified by the Company."

"8. All the crops grown by the farmer in the said land under this agreement will be sold only to the Company at the pre-determined prices that will be fixed by the Company for each variety/grade of the crops and which rate will be specified on her kilogram basis."

"9. The Company under this agreement will be obliged only to purchase and remunerate the sale value of the crop of good and acceptable quality to the Company keeping in mind that the said produce/crops are meant only for export. In the event the Company rejects any of the crop for quality reason the farmer will be at liberty to sell the same to any third party subject however, to the farmer repaying the loan if any granted under this agreement and also repaying the value of materials like seeds, fertilizers etc., supplied by the Company. However, the Company will continue to have lien on the said crop/ produce until such time all its dues are settled."

"19. This agreement will be subject to the jurisdiction of competent Courts in Bangalore City to the exclusion of all other Courts in the country."

A reading of the above clauses makes us clear that it is the complainant who is selling the Gherkins raised in his lands and the opponent is paying the consideration amount. That being so, the contention of the learned Advocate for the appellant that the complain ant is not a ''Consumer'' has to be accepted.

HOWEVER, the learned Advocate for the respondent has invited our attention to few decisions. The 1st decision on which reliance has been placed is the decision of the Supreme Court reported in VII (1999) SLT 115=AIR 2000 SC 102, M/s. Vikas Motors Ltd. v. Dr. K. Jain. He invited our attention to paragraph-4 of the said decision which reads as follows : "4. The objection regarding jurisdiction was decided by the District Forum vide its order dated 26th July, 1991 against which no appeal or revision was filed by the appellant and that apparently appers to have become final. After participating in the proceedings and being satisfied with the verdict regarding jurisdiction, it is too late for the appellant to urge, at this stage, that the District Forum had no territorial jurisdiction to entertain the complaint and pass orders under the Consumer Protection Act (hereinafter referred to as "the Act"). The appellant is estopped from raising the plea of jurisdiction at this stage, on the ground that he cannot be permitted to both approbate and reprobate after submitting and acquiescing to the territorial jurisdiction of the District Forum."

From the above decision, it is clear that was a case where the Supreme Court was considering the territorial jurisdiction and the said preliminary objection was considered and a separate order was passed which order was not challenged by the aggrieved party and it has become final. Hence, the said decision cannot be applied to the facts of the present case.

The next decision on which reliance is placed by the learned Advocate for the respondent is the decision of the Supreme Court reported in II (1997) CLT 459 (SC)=AIR 1997 SC 2517, CThat is the case where the Supreme Court found fault with the High Court in allowing to take a new plea at that stage. The High Court has permitted to raise a new plea in the 2nd appeal and the Supreme Court has observed that the High Court was not justified in allowing to take a new plea at the stage of 2nd appeal. Hence, the ratio of the said decision will not come to the rescue of the respondent.

THE third decision on which the reliance was placed by the learned Advocate for the respondent is reported in VII (1998) SLT 71=III (1998) CLT 154 (SC)=AIR 1998 SC 3021, Bapu Ram @ Durga Prasad v. Indra Pal Singh (dead) by L.Rs. In that case, the Supreme Court has observed that in 2nd appeal under Section 100 of C.P.C., the High Court has no jurisdiction to give a finding on an issue which was not present in the Trial Court. Hence, the said decision has no relevance to the facts of the present case. In addition to the above decisions, the learned Advocate has invited our attention to a decision of the Karnataka High Court reported in 1999 (5) Kar. LI 416, Chief Secretary, Zilla Panchayat, Bidar v. Anandabai & Anr., wherein the High Court has observed that a plea which has not been raised before the Claims Tribunal nor any issue has been pressed before the said Tribunal, will not be allowed to be taken up before the High Court in an apeal. The other decision which requires consideration is a decision of the Rajasthan High Court reported in AIR 1999 Rajasthan 201, Prithvi Raj Singh v. Dalip Kulkarni & Ors. The High Court, in the said case, in paragraph-25, has observed as follows : "25.1 have considered the rival contentions as advanced by the learned Counsel for the parties and have given thoughtful consideration to the same as well as relevant evidence led by the parties (both oral and documentary) on record. In my considered view, the contention of the respondents as to the maintainability of the suit itself on account of misjoinder of unnecessary parties is wholly untenable and devoid of any merit for the simple reason that since neither this objection was taken in the pleadings in written statement nor any issue was framed by the Trial Court and hence in the absence of such a position, it is not open to the contesting respondents to contend at this stage or to take any objection that the suit file by the plaintiff deserves to be dismissed on the ground of inherent defect for the reason of misjoinder of parties. Therefore, it cannot be said by any stretch of imagination that the plaintiff has misused or abused the process of law resulting into grave miscarriage of justice as alleged by the respondents."

IN the present case, as could be seen from the complaint itself, the complainant has not paid any consideration to the opposite party. On the contrary, the opposite party is paying consideration for the Gherkins which have been grown by the complainant in his land. That being so, the position of the complainant is that of a seller. No consideration has been passed to the opposite party. Hence, we are of the opinion that the complainant is not a ''consumer'' so as, to attract the provisions of Section 2(1)(d) of the Consumer Protection Act, 1986. If he is not a ''consumer'', he cannot maintain the said complaint. The District Forum, had no occasion to meet this contention since this contention was not taken up either in the version or during the course of the argument. Since the contention goes to the very root of the case and it will oust the jurisdiction of the District Forum, we have permitted the appellant/opposite to take up this contention. Once this contention is allowed to be taken up, then, we have to hold that the complaint filed by the complainant before the District Forum was not maintainable. Accordingly, we allow this appeal, set aside the order of the District Forum. However, it is open to the complainant to approach the proper Forum for his redressal and he can take advantage of the pendency of this proceeding before the District Forum as well as before this Commission for the purpose of limitation. There will be no order as to costs in this appeal. Appeal allowed.