V.K.BALAN vs TRASIBA ELECTRONICS

THIS action has come up for final disposal before us today. The complainant one Mr. V.K. Balan, is the proprietor of Sapna Colour Lab, located at No. 3, 7th Street, Sourashtranagar, Choolaimedu, Chennai-94. He is represented by his Counsel namely learned Counsel Mr. V. Mani.

THE opposite party is M/s. Trasiba Electronics, rep. by its partner Mrs. Parveen, 26/2, Karunanidhi I Street, West Mambalam, Chennai-33. THEy are also represented by their Counsel Mr. J. Sivanandaraaj and Jagan. Learned Counsel Mr. P.V. Balasubramaniam, represented learned Counsel M/s. A. Sivanandaraaj and Jagan, appearing for the opposite party. Learned Counsel representing the respective parties projected their hues of views on the maintainability of the complaint. Both of them opted to argue on the basis of the materials available on record without marking any documents.

In such an eventuality, better it is, we feel to pen down the factual matrix of the case of the respective parties in an incisive fashion in rather a bid to understand in the best of fashion possible the moot question relatable to the maintainability of the complaint.

THE complainant is having a colour lab going by the name Sapna Colour Lab at Port Blair, Andhamans. Of course, he has given his address in the cause title as if he is having his colour lab at Madras. Such an address had been furnished only for the purpose of this complaint. The complainant, it is said, purchased a computerised automatic integrated printer-cum-processor from the opposite party for Rs. 4,00,400/- to be put into use for his Sapna Colour Lab, Port Blair, Andhamans. The machinery so purchased, it appears, was not functioning properly up to the satisfaction of the complainant. It developed lot of defects and consequently he would say that he was not in a position to put into use in his laboratory for the purpose for which it was purchased. As a consequence, he suffered a huge loss of profit in his venture. For the alleged supply of defective computers automatic integrated printer-cum-processor, he initiated the present action - complaint against the opposite party for the reliefs as detailed below : (1) to return the value of the defective machinery with interest thereon @ 18% p.a. from 12.3.1997 till payment; (2) compensation for loss on account of business reputation and pecuniary loss and mental agony to the complainant as a result of supply of defective machinery quantified in sum of Rs. 6 lakhs; (3) cost of the complaint; and (4) to pass such further or other orders as this Commission may deem fit and proper in the interest of justice.

TO such an action as brought about by the complainant, the opposite party in pith and substance would contend that the complainant cannot at all be construed on the facts and in the circumstances of the case as a consumer inasmuch as the machinery purchased is for a commercial venture or purpose. The other fang of attack was that in respect of the same subject-matter the complainant initiated actions not only before this Commission but also before the Civil and Criminal Forums. The complainant, as a matter of fact, instituted a civil suit in C.S. No. 373/98 on the file of the High Court of Judicature, Madras, apart from filing a suit in O.S. 1554/98 on the file of the Civil Court, Madras, besides the launching of a prosecution by way of a complaint as against the opposite party in C.C. 3275/98 on the file of the XI Metropolitan Magistrate, Madras. By the institution of such proceedings, the jurisdiction of this Commission would automatically get ousted. As such, the complaint is liable to be dismissed. The pendency of the proceedings before the Civil and Criminal Forums as stated by the opposite party is not at all denied by the complainant. But what is worse is that these aspects of the matter had not only been averred by incorporation of averments in the complaint but also the copies of documents relating to civil and criminal proceedings as initiated by the complainant had been filed before this Commission. The moot question that arises for consideration in such a situation is whether the pendency of the civil and criminal proceedings as initiated by the complainant shall oust the jurisdiction of this Commission.

WE have perused the averments made by the complainant in the plaint in C.S. 373/98 on the file of the High Court of Judicature, Madras, plaint in O.S. 1554/98 on the file of the Civil Court of Madras and complaint in C.C. 3275/98 on the file of the XI Metropolitan Magistrate, Madras. WE also perused the averments made in the complaint instituted before this Commission. A cursory perusal and glance of the averments made therein points out in no uncertain terms that the basis of all the proceedings is one and same and the averments relatable to the basis as incorporated in the complaint filed before this Commission get actually reflected in parimateria by way of averments not only in the civil proceedings instituted before the High Court of Judicature, Madras and City Civil Court, Madras, but also in the criminal prosecution launched as against the opposite party before the XI Metropolitan Magistrate, Madras.

LEARNED Counsel Mr. V. Mani, appearing for the complainant would state in a flamboyant style that the relief prayed for in the suit instituted before the City Civil Court, Madras, is for the mandatory injunction directing the opposite party to rectify the defects in the machinery and such a relief cannot at all, he would say, be prayed for before this Commission. He would further submit that the reliefs prayed for in the civil suits before the High Court of Judicature, Madras, is for damages for the loss of business, loss of image and the reputation of the complainant and also the day by day loss incurred on account of non-operation of the defective supply of the machinery by the opposite party and that sort of a relief cannot at all be claimed in an action instituted before this Commission. He would also submit that the action instituted before the XI Metropolitan Magistrate, Madras, was for the purpose of punishing the offender for the offence of cheating under Section 420 of the Indian Penal Code. The punishment of the alleged offender, the opposite party for the offence of cheating is not permissible by the institution of a complaint before this Commission.

Learned Counsel Mr. P.V. Balasubramaniam, representing the opposite party would however strike a discordant note to the submissions so made by learned Counsel appearing for the complainant and submit that the submissions as made by learned Counsel appearing for the complainant would by themselves point out the loopholes in the case of the complainant, apart from such loopholes getting revealed from the averments made in the complaint and other documents filed along with it. He would elaborate such submission by stating that the perusal of the averments made in the complaint instituted before this Commission and the plaint made before the High Court of Judicature, Madras and City Civil Court, Madras, besides the complaint instituted before the XI Metropolitan Magistrate, Madras, would point out in no uncertain terms that the purchase of the machinery in question by the opposite party is for the avowed purpose of a commercial venture and that being so the complainant cannot at all be construed as a consumer falling within the definition of Section 2(1)(d) of the Consumer Protection Act, 1986, (for short, "the Act"). He would also submit that what is further getting revealed by perusal of such averments is that in respect of the same subject-matter in respect of which a complaint had been instituted before this Commission, the complainant had also initiated proceedings before the Civil and Criminal Forums and such being the case the jurisdiction of the Commission had to be necessarily ousted. What he would further contend is that the pendency of criminal proceedings before the XI Metropolitan Magistrate, Madras, simplicitor will not oust the jurisdiction of this Commission. The sordid fact, as already stated, is that the averments made in the complaint filed before the Criminal Court and also the averments made in the complaint before this Commission dwell on the aspect of the intentional act of cheating perpetrated by the opposite party and on the face of the averment relatable to the intentional act of cheating having been made in the complaint instituted before this Commission, it goes without saying the Commission gets ousted of jurisdiction and the complaint has to be dismissed on that ground alone.

THE tenability or otherwise of the rival submissions of either Counsel appearing for the respective parties may now be tested in the light of the precedents emerging from the National Commission and other superior Courts of jurisdiction. In M/s. Dees Pistons (P) Ltd. v. State Bank of India & Anr., 1991 (2) CPR 148, the National Commission happened to consider the question as to whether, when a subject-matter is sub-judice before a competent Civil Court, the State Commission can entertain a petition in respect of the identical subject-matter under the Consumer Protection Act ?

IN a short and crisp order, the Hon''ble President of the National Commission, Justice V. Balakrishna Eradi, said thus : "This petition has to fail on the short ground that a suit in respect of the same matter is pending between these parties in the District Court, Jaipur and it is open to the petitioner to raise in the said suit all the contentions that he has raised before this Commission. We have already held in a number of cases that when a matter is sub-judice before a competent Civil Court, this Commission will not entertain a petition in respect of the identical subject-matter. On this limited ground, this petition is dismissed."

In M/s. Oswal Fine Arts v. M/s. H.M.T., Madras, 1991 (1) CPR 1, the question as the one raised in M/s. Dees Pistons (P) Ltd. (supra), was also raised in the decision on hand and in answering the said question, the National Commission, said thus : "Another formidable objection to the maintainability of this claim is that the matter is sub-judice before the Madras High Court on its original side where the complainant has instituted a suit for damages against the respondent based on the identical cause of action. There is also a cross suit filed by the respondent company in the City Civil Court at Bangalore claiming certain reliefs against the complainant in respect of the same transaction. When the matter is, thus, sub-judice before the ordinary Civil Courts of the land, this Commission cannot and will not entertain any claim for compensation in respect of the identical subject-matter."

Those two decisions referred to above are applicable in all fours to the facts of the instant case. We have already stated that cause of action is the same in respect of the complaint instituted before this Commission as well as the two suits, one instituted before the High Court of Judicature and another before the City Civil Court, Madras. This apart, the subject-matter of the dispute is one and the same. Such being the case, it goes without saying that this Commission has to necessarily throw the complaint lock, stock and barrel by directing the parties to have their rights adjudicated in the suits which had already been instituted before the competent Court of jurisdiction. We accordingly do so.

IN M/s. Oswal Fine Arts (supra), the National Commission happened to consider as to whether the complaint regarding the purchase of defective offset printing machine made for commercial purpose would come within the purview of the Act. On such a point, the National Commission held thus : "There is yet another insuperable obstacle disentitling the complainant to approach this National Commission with a claim for compensation, namely, that he is not a "consumer" as defined in Section 2(1)(d)(i) of the Consumer Protection Act, 1986. Admittedly, the machinery in question was purchased by the complainant for the purpose of its use in his Oswal Fine Arts Printing Press which is a commercial establishment. A person who obtains goods for a commercial purpose is specifically excluded from the scope of the expression "consumer" by the definition contained in Section 2(1)(d)(i)."

THE facts of the instant case prima facie point out that the machinery in question had been purchased by the complainant for the purpose of putting the same for a commercial venture or purpose. Such being the case, the complainant in the instant case, cannot at all be construed as a consumer qua the opposite party falling within the definition as contained in Section 2(1)(d)(i) of the Act. THE other important question is relatable to the institution of a criminal complaint before a competent Criminal Court in respect of the subject-matter in respect of which a complaint had been instituted before the Fora or the Commission constituted under the Act. THEre is plethora of decisions available on this aspect of the matter pointing out that institution of complaints before the Criminal Forum in such a situation is not by itself sufficient to oust the jurisdiction of the Fora or the Commission constituted under the Act. Learned Counsel appearing for the opposite party, realising fully well this sort of a legal position as of now obtaining in Indian Context, would state that the incorporation of averments in the complaint instituted before this Commission by the complainant as respects the commission of the offence of intentional cheating as perpetrated by the opposite party would by themselves operated to exclude the jurisdiction of this Commission. On this aspect of the matter, our attention had been drawn to the decision in R.R. Gopal @ R. Rajagopal v. Chairman, Tamil Nadu Electricity Board, I (1996) CPJ 143 (NC). We may refer to in a short and incisive fashion the factual matrix of the case to grasp at the principles evolved by the National Commission and apply the same to the facts of the instant case.

In the case before the National Commission, electricity in the premises of the complainant engaged in the profession of investigative journalism was disconnected by the Electricity Board, opposite party. It was alleged in the complaint that the reason for the disconnection was cold-blooded victimisation motivated by sheer malice, vengeance and oppressive attitude, to put pressure on the complainant to oppress his press freedom. It is on those allegations the National Commission went into the question as to whether the complainant is entitled to compensation. The National Commission answered the question in the negative i.e. against the complainant. While answering the question the National Commission went to deal with the question of "negligence" and "intentional act" in an elaborate way. The discussion entered into by the National Commission on those aspects of the matter is getting rejected in paragraphs 11 and 12.

THE portion which is relevant for our present purpose in paragraph 11 reads as under : "It is the negligence in the performance of deficient service that is the foundation of the grant of the relief of compensation to a consumer for any loss or injury suffered by the consumer. Negligence is not an affirmative word, on the other hand it is a negative word. It is the absence of such care, skill and diligence in rendering the service as is expected of or required of a reasonable man. It is omitting to do something that a reasonable man would do or doing something which a reasonable man would not do. It is want of proper care or attention in rendering the service judged from the standards of performance by a reasonable man. Under Section 14(1)(d) compensation is payable to the consumer for loss or injury suffered by the consumer due to negligence of the opposite party. If there is no negligence or negligence is not established, then the Consumer Forums have no jurisdiction to grant any compensation."

Entire paragraph 12 is relevant and it reads as under : "12. Intentional is doing for a purpose within ultimate aim-The intentional act is the natural consequence of something consciously done. The Legislature by using the words "deficiency" and "negligence" clearly intended that the remedy for intentional malicious acts are outside the jurisdiction of Consumer Forums under the Act. What the Legislature intended to be done or not to be done can only be legitimately ascertained from what it has chosen to enact, either in express words or by reasonable and necessary implications. In this case, the complainants says that "it was not negligence, it was not delinquency of duty, it was not ruthlessness in rectifying the cable fault. But it was cold-blooded victimisation motivated by sheer malice, vengeance and oppressive attitude". This type of complaints are not to be considered and decided by the Consumer Forums as the negligence and intentions are contradictory terms. In fact negligence is the ante-thesis of intention and so intention is not an element of negligence. The reliefs which could be granted under Section 14(1)(d) is solely dependent on the establishment of the negligence in the performance of deficiency in service."

THE weighty observations as extracted above will be applicable in all fours to the factual matrix of the case on hand. As already adverted to, the complainant had incorporated specific averments in the complaint as respects the commission of the offence of intentional cheating by the opposite party in selling the machinery in question to the complainant. Such being the case, the jurisdiction of the Commission has to necessarily get ousted and we accordingly do so. Learned Counsel appearing for the complainant drew our attention to the decision in Rambal Engg. Products Pvt. Ltd. v. Patel Roadways Ltd., 1994 (1) CPR 559. This decision had been rendered by the President of this Commission, Justice S.A. Kader, and what he said was that pendency of criminal investigation into the matter is not a bar to seek redress before this Commission. It is not as if, we have said anything in any portion of the discussion that pendency of criminal investigation into the matter is a bar to seek redressal before this Commission. This decision had been brought to our notice at the fag end of our discussion. We were also under the impression as conceded by learned Counsel for the opposite party that pendency of criminal investigations is not a bar to seek redressal before this Commission. However, it is brought to our notice, at this stage that the decision rendered by Justice S.A. Kader, the President of this Commission, in Rambal Engg. Products Pvt. Ltd. (supra), cannot at all be considered laying down the correct law on this point on the face of the decision emerging from the National Commission in Santhosh Sharma & Ors. v. State Bank of India & Ors., 1986-94 National Commission and Supreme Court on Consumer Cases 794 (NS). What the National Commission said on this aspect of the matter is getting reflected as below : "It is common ground before us that the police investigated into the matter and have registered a criminal case in which respondent Nos. 4 and 5 figure as the accused and the said case is pending trial before the concerned Sessions Judge. The matter is thus sub-judice before the Criminal Court. It is not open to us to hold an enquiry into the factual question as to whether the allegations contained in the complaint petition are correct and true when the matter is pending before the Criminal Court."

In view of what has been stated above, it goes without saying that the complaint as instituted, deserves to be dismissed.

IN fine, the complaint is dismissed. We however make no order as to costs on the facts and in the circumstances of the case. Complaint dismissed.