S.K.KAUSHAL OF AMBALA CANTT. vs SAINI LAW AGENCY

CAN a seller of goods validly raise a consumer dispute with regard to the recovery of the price thereof before the redressal agencies under the Consumer Protection Act? This is the solitary significant question in this appeal.

THE facts lie in a narrow compass. THE complainant-appellant Lt. Col. S.K. Kaushal is a retired Army Officer who is now practicing as an advocate at Ambala. He had preferred the complaint before the District Forum seeking the recovery of Rs. 2,808/- with @ 18% interest and compensation to the tune of Rs. 1000/- from respondent No. 1 M/s. Saini Law Agency. THE primal allegation was that the complainant had sold 34 volumes of Income Tax Reports for the year 1978 to 1983 to respondent No. 1 at Rs. 160/- per volume less 10% discount as commission. THE net amount thus payable to the complainant was Rs. 4,896/-. THE said respondent however, did not pay the price and instead supplied to the complainant some volumes of Recent Criminal Reports, Chandigarh which were accepted by him. According to the complainant (through a process of discount and commission etc.) the value of the said books would come to Rs. 2,088/-. Consequently a balance of Rs. 2,808/- was still due which as noticed above was sought to be recovered with damages. Before the District Forum the complaint was primarily contested by respondent No. 1 and a weighty preliminary objection was taken about the very maintainability of the same on the ground that the complainant did not come within the ambit of a consumer as defined under the Act. The Learned District Forum treated this as a preliminary issue and by the order under appeal it was held that the complainant who had himself sold the books was not a consumer within Section 2(1)(d) of the Act and consequently could not seek redress before it. Inevitably the complaint was dismissed on the preliminary ground. Hence, the present appeal.

The appellant who argued his appeal in person did so with considerable ability in what appears to us is a lost cause. Reliance was first placed on Section 4 of the Sale of Goods Act for contending that the transaction in the present case came within the ambit thereof. He also drew our attention to the definition of ''consideration'' under Section 2(d) of the Indian Contract Act for submitting that the contract herein was adequately supported by consideration and thus enforceable. In the alternative it was even sought to be argued that the present case was one of hiring of services.

DESPITE the persistence with which the matter was presented to us by the appellant, we regret our inability to agree. To clear the cub-webs for appreciating the basic submission it may be noticed that the present case cannot even remotely be one of hiring any services by the appellant. Plainly enough it was a matter of the sale of goods namely the law books for a price and the primal dispute is with regard to the recovery of the part thereof. Neither in the complaint nor in the submission before the District Forum was there any hint of the case being one of the hiring of services. This is patently an after thought on the part of the appellant and even otherwise is so untenable that it would be wasteful to labour the point. The submission that herein there was any semblance of hiring of services or any deficiency therein must be rejected out of hand. It then appears to us that the appellants reliance on Section 4 of the Sale of Goods Act or on the concept of consideration under the Indian Contract Act is totally wide of the mark. There is little or no dispute that assuming the allegations in the complaint to be true, there was an enforceable agreement betwixt the parties. However, this by itself does not in any way advance the case of the appellant. The crucial issue is whether on the alleged facts in the complaint the appellant would be a consumer within the meaning of the Act and in the alternative whether a mere claim for recovery of the price of goods was maintainable thereunder.

BOTH the aforesaid issues seem to be plainly concluded against the appellant. One must necessarily refer to the relevant part of the definition of ''consumer'' in Section 2(1)(d)(i) which is as under: - 2(2)(d)(i): "consumer" means any person who, - buys and goods for a consideration which has been paid or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person why 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"

A plain reading of the very opening part thereof would show that the very foundation thereof is a person who buys goods for consideration. Plainly enough the appellant herein does not satisfy that lit mus test. The averments in the complaint leave no manner of doubt that the whole cause of action herein stems from the fact of he being the seller who had sold his 34 volumes of Income Tax Reports to respondent No. 1 for an agreed price. The very heading of the complaint is tell-tale and seeks the payment of the purchase price of the said books belonging to the complainant. The ultimate relief sought in the complaint again is to secure the balance amount of the price due. On his own showing, therefore, the complainant-appellant was the seller of goods and once that is so he cannot by any strech of imagination be brought within the definition of a ''consumer''. Equally it must be noticed that the consumer jurisdiction is not one for the mere recovery of the price of goods supplied. In such a context the basic grievance has to be with regard to some defect in the goods by which the consumer is aggrieved. Herein far from proving, it has not even been alleged that there was any defect in the goods which had given rise to a cause of action cognizable within the consumer jurisdiction. In the light of the above, the answer to the question posed at the outset is rendered in the negative and it is held that a seller of goods cannot possibly raise a consumer dispute pertaining to the mere recovery of the price thereof before the redressal agencies under the Act.

ONCE it is held as above, it necessarily follows that the appeal is without merit. The same is hereby dismissed and the order of the District Forum is affirmed. Appeal dismissed. _______________