NEW DELHI
REVISION PETITION NO. 125 OF 2003
(Against the Order dated 28.8.2002 of the Orissa State Commission in
First Appeal No. 427 of 2001)
Managing Director
Cargil
India Pvt. Ltd.
The
Capital Court
Olof
Palme Marg Petitioner
Munirka, New Delhi
versus
1. Narendra Kumar
Raychoudhury
Prop. of M/s Ray
Chaudhury Enterprises
P.S. Sea Beach,
Dist. Puri.
2. Aruna Kumar
Chakrabarty
C/o Late B.R.
Chakrabarty
At - Nuripada,
P.O. Suri Respondents
P.S. Suri,
District Birbhum
West Bengal
3. Manas Ranjan Sahoo
S/o Sunakar Sahoo
Sidha Mahabir, P.O. Puri - 2
P.S. Kumbharpada, District Puri
BEFORE:
HON’BLE MR.
JUSTICE S. N. KAPOOR PRESIDING MEMBER
HON’BLE MR.
B. K. TAIMNI MEMBER
HON’BLE MR. ANUPAM DASGUPTA MEMBER
For the Petitioner Mr. Jaydev Singh and Mr. Arvind Mishra, Advocates
For the Respondent no.1 Mr. F.I. Choudhury and Mr. Dinabandhu Dash, Advocates
Dated 24th
October 2008
ORDER
ANUPAM DASGUPTA
This
revision petition and revision petition no. 124, filed by the same petitioner
against the same principal respondent were considered earlier and disposed of
by this Commission’s order dated 30.11.2005, in the following terms:
“Heard the learned counsel for the Petitioner. None of the
Respondents are present despite service
of the notice by publication and Shri N. K. Roy Choudhury, Respondent has
already filed an affidavit as well before this Commission. Consequently, the
case is being proceeded ex parte against the Respondents.
“This order shall dispose of
two Revision Petition Nos. 124 and 125 of 2003.
In both the matters similar questions of fact and law have arisen. The difference in the two matters relate to
bank drafts (In R.P. No.124 of 2003 Bank Draft No.574539 of Rs.1,90,000/- and
in R.P.No.125 of 2003 Bank Draft No.574511 of Rs.2,35,000/-).
“These petitions have been
filed against the order passed by the Orissa State Consumer Disputes Redressal
Commission, Cuttack holding the Appellant and the Respondent No.2, Carrier
jointly and severally liable to compensate the Complainant by paying the amount
of Rs.2, 00,000/- and compensation of Rs.5,000/- and costs of Rs.1,000/- in
C.D. Appeal No.43 of 2002. State Commission further directed that Complainant
shall first proceed against the Respondent no.2 for recovery of the amount
failing which against the present appellant.
“In
C.D. Appeal No.427 of 2001 the District Forum allowed the complaints by
directing the Petitioner with Respondent No.2 to jointly pay Rs.2,50,000/- with
interest @12% from 23.8.99 along with compensation of Rs.10,000/- for
harassment and mental agony and cost of Rs.1,000/-. The appeal of the Petitioner was dismissed
with cost of Rs.2,000/-.
“The
grievance of the Petitioner in these two revisions is three folds. Firstly, the Palmolien Oil was purchased by
the Complainant /Respondent for the purpose of resale. He was a bulk purchaser,
as is said to be evident from the notice served by the Complainant dated 15.2.2000. Consequently, in terms of the judgment of
this Commission in Synco Textiles Pvt. Ltd. V/s. Greaves Cotton &
Company Ltd. 1 (1991) CPJ 499 held that the Complainant was not a consumer
and could not pursue the complaint. Secondly, there was no privity of contract
between the Complainant and the Respondent and the broker who had been dealing
with the Complainant had not been made a party. Thirdly, the amount of Rs.2
lakhs along with compensation of Rs.5,000/- and costs of Rs.1,000/- could not
have been awarded in Petition No.124 of 2003 and in C.D. Appeal No.43 of 2002.
Similarly, in Petition No.125 of 2003 the amount of Rs.2,50,000/- with interest
@12% from 23.8.99 along with compensation of Rs.2,000/- with cost of Rs.1,000/-
+ Rs.2,000/- could not have been awarded for the Complainant in its composite
notice dated 15th February, 2000 in respect of all the payments
demanded only a sum of Rs.71,527/- with 12% interest p.a. in both the matters.
“As regards the first point, we find from the notice
issued by Shri Lakxmi Kanta Mishra, Advocate, Puri dated 15.2.2000 that the
notice itself indicated that he was a bulk purchaser and he demanded only
Rs.71,527/- vide the said notice. The reasons of demand are given as under:
“ That, my client had delivered the above demand drafts to
Arun Kumar Chakrabarty, the agent of your sub-broker Ashok Kumar Gupta/broker
M/s. Phool Chand Gupta of Vizianagaram, of Rs.1,85,000/- (Rupees one lakh
eighty five thousand) only. But to my utter surprise you had not sent the oil
tanker till today though you have encashed the demand draft much before.
“That, my client had also
sent 6 demand drafts to your company, details are given in the foot of this
notice for which you had also delivered oil cargo to my client where there
was a shortage of oil to the tune of Rs.71,527/- (Rupees seventy one thousand
five hundred twenty seven) only.
“That, failing to send
the oil tanker and failing to refund of shortage money through other 6 demand
drafts of Rs.71,527/- (Rupees seventy one thousand five hundred twenty seven)
only in total Rs.2,56,527/- (Rupees two lakh fifty six thousand five hundred
twenty seven) only remain outstanding against you within fifteen days of
receiving of this notice, I will take appropriate legal
course of action against you with interest @12% p.a. till full satisfaction and
you all will held jointly and severally liable for the above money outstanding
against you, please take note.
Yours
sincerely,
(LAXMIKANTA
MISHRA)
ADVOCATE
Date & D.D. No. Bank D.D.
Amount Receiving money Outstanding
For
goods
23.8.99 D.D.No.574511 2,35,000.00 - -
Andhra Bank, Puri. Cash 15,000.00
11.9.99 D.D.No.574523 2,40,000.00
Andhra Bank, Puri. Cash 10,000.00 2,21,834.70 2,78,165.30
20.9.99 D.D.No.574527 1,90,000.00
Andhra Bank, Puri Cash 30,000.00 2,03,349.24 2,94,816.00
29.9.99 D.D.No.574539 2,00,000.00 1,96,129.68 2,98,686.30
Andhra Bank
6.10.99 D.D. No.574547 1,90,000.00 2,07,009.00 2,81,677.30
Andhra Bank, Puri
8.11.99 - 1,94,774.00 86,903.30
16.12.99 D.D.No.205125 1,90,000.00 2,05,375.98
_______________ ___________
13,00,000.00 12,28,472.60 Rs.71,527/-“
_______________ ____________
(Emphasis
supplied)
“If we consider the notice,
it is very much evident that he is a bulk purchaser of RBD Palmolien Oil. It is
meant for the sale and as such in terms of the judgment of Synco Textiles
Pvt. Ltd. V/s. Greaves Cotton & Company Ltd. 1 (1991) CPJ 499 it is
difficult to accept him as a consumer. In that judgment the term commercial
purpose came to be considered and we reproduce paragraphs 23:
“Para 23:
“It would be evident from
the foregoing that the word used in sec.2(1)(d)(i) “for commercial purpose”
have to be given a precise and restrictive meaning: commercial purpose has to
be distinguished from commercial production and commercial activity. The
sub-section 2(1)(d)(i) and (ii) of the Consumer Protection Act have to be
interpreted harmoniously. The
interpretation of the words “commercial purpose” in sec.2(1)(d)(i) must be
logical and equitable so as to avoid patent anomalies and inconsistencies in
the application of the law. Viewed in
this background, the various tests for determining whether the goods have been
purchased for a commercial purpose would be:
(i)
The
goods are not for immediate final consumption but that there is only transfer
of goods i.e. resale.
(ii)
There
should be a direct nexus between the purchase of goods and the profit or loss
from their further disposal. Such a
direct nexus is absent when the goods or services are converted for producing
other goods or services. After
conversion there is no direct nexus between the kind of goods purchased and the
kind of goods sold.
(iii)
There
is nexus of form and kind between the goods purchased and the goods sold. Such a direct nexus of form and kind ceases
when the goods undergo transformation or conversion.”
“In addition to the above judgment and we may also refer to the
judgment in the Laxmi Engineering Works V/s. P.S.G. Industrial Institute
{(1995 3 SCC 583}. We feel that in
so far as the Petitioner is concerned it was certainly a commercial transaction
otherwise amount of Rs.13,00,000/- could not be sent nor Palmolien oil worth
Rs.12,28,472.60 would have been received leaving just a balance of Rs.71,527/-.
On this ground alone the impugned order is required to be set aside qua the
Petitioner.
“As regards the second
point, there was no privity of contract agreement between the Petitioner and
Ashok Kumar Gupta and Arun Kumar Chakrabarty.
There is a Brokerage Agreement (Annexure ‘B) between Cargil India Pvt.
Ltd. and Phool Chand Gupta, a partnership concern having its office at Goyal
Niwas, Kothagraharam, Vizianagaram–535 001. This Brokerage Agreement has
specifically provided in para 17 that “Neither this Agreement, nor any right
hereunder, is assignable without prior written consent of Company”. No such things had been brought on record to
appoint sub-broker, as claimed by the Petitioner. As such only M/s. Phool Chand was the agent
of the Petitioner and not Ashok Kumar Gupta and Arun Kumar Chakrabarty. They
were strangers so far as Cargil India Pvt. Ltd. is concerned and if any
transaction is entered by sub-broker, the liability could not be passed on to
the Petitioner.
“As regards the third point, if the Complainant was making inconsistent demand in the notice as mentioned herein above particularly in the underlined portion and the Complaint, it appears that only a sum of Rs.13 lakh was sent and Palmolien oil worth Rs.12,28,472.60 had already been supplied leaving the balance of Rs.71,527/- . The demand over and above Rs.71,527/- against the Petitioner could not be justified. However, since a sum of Rs.71,527/- has been claimed by the Complainant, we feel it appropriate that the Complainant /Respondent should be given a liberty to approach the Civil Court in respect of any claim against the Petitioner.
“In
the aforementioned circumstances, the impugned order qua the Petitioner is set
aside. Revision Petition is accordingly allowed to that extent. It will not
have any bearing on liability of Sahoo Carriers in Revision Petition No. 124 of
2003. Both revision Petitions are disposed of accordingly.”
2. The
order reproduced above was, however, recalled by the following order dated
16.04.2007 of this Commission:
“Heard on the application for review.
“The
ground taken for review is that notice was not published for service on
Narendra Kumar Ray Choudhury, the complainant. It may be mentioned that
publication was made. Mr. P. Das, learned counsel appeared on 13.10.2003 on
behalf of Narendra Kumar Ray Choudhury. On 12.3.2004 none appeared and the
revision petition was dismissed in default. Thereafter, an application was
moved for restoration. Notice was published in Statesman. The name of Narendra
Kumar Choudhury was mentioned in the cause printed in the newspaper but in the
cause title, name of Mr. Narendra Kumar Ray Choudhury; as such it was
incomplete and his name was not included in the body of the notice. He did not
appear and the impugned order dated 30.11.2005 was passed, ex parte against
him.
In the aforementioned facts, the application for review is allowed. We
recall our order dated 30.11.2005.
“Issue
notice to the other respondents as well by publication in Statesman, Kolkata
edition, as prayed giving names of all the concerned persons, returnable on
16.11.2007.
“In the meanwhile, the complainant respondent Narendra Kumar Ray
Choudhury shall not proceed in execution against the petitioner. However,
Narendra Kumar Ray Choudhury will be at liberty to proceed in execution against
respondent other than the petitioner, if the amount has not been recovered so
far.
A copy of this order be given dasti to the learned counsel for both the
parties.”
3. On the last date of hearing of these two petitions, order in respect of revision petition no. 125 of 2003 was reserved and that on revision petition no. 124 of 2003 was passed as under:
“Heard the learned counsel for the parties.
“There
is some apparent and glaring inconsistency in the order passed by the State
Commission, for the State Commission has observed as under:-
“Appellant being the supplier, it seems he has dispatched the Palmolien oil which according to the case of the complainant passed through the Girisola Commercial Sales Tax Check Gate. The appellant being the supplier having handed over the way bills to the transporter. The possibility of his instructing the transporter to divert the tanker could not be ruled out. Though no materials are placed that this could have been done intentionally to oblige some other purchaser. The learned counsel for the complainant has cited a decision of the Hon’ble Supreme Court reported in 2001 NCJ 84 (SC) between Nath Bros. Exim International Ltd. vs. Best Roadways Ltd. in Civil Appeal No.1/97 decided on 27.3.2000 wherein it has been laid down as the settled proposition of law that when there is loss of goods during transit caused to the consignee the transporter liability is that of an insurer of the property. Therefore in such a situation holding the present appellant or his functionaries as liable for compensation was not warranted. The present respondent no.2 did not choose to appear and contest the case. The case has been accepted against her. There is a decision against the present appellant the supplier and also against the transporter. Since the complainant has paid the amount to the supplier and the District Forum has accepted the case of the complainant that the supplier has received the amount and at the same time the District Forum has accepted the fact having been proved that the goods were diverted while in transit, we modify the order of the District Forum that the present appellant and the respondent no.2 the Carrier are jointly and severally liable to compensate the complainant the amount of Rs.2,00,000/- and compensation of Rs.5,000/- and costs of Rs.1,000/-. We make it clear that the complainant shall first proceeded against the respondent no.2 for recovery of the amount failing which against the present appellant. We accordingly dismiss the appeal with the above modification. The order be complied within a period of three months from the date of communication of the order.”
“It is thus apparent that, on one
hand, the State Commission has held that Cargil India Pvt. Ltd. or its
functionaries could not be held liable for compensation and the order passed by
the District Forum awarding compensation was not warranted. On the other hand,
the State Commission has also mentioned that the complainant/respondent “shall
first proceed against the respondent no.2 for recovery of the amount failing
which against the present appellant (M/s Cargil India Pvt. Ltd.)” and dismissed
the appeal of the petitioner with the above modification.
“The petitioner received the price of the goods from the
complainant in two cases. In one case, the goods were dispatched. In the other
case, the goods were not dispatched. This matter relates to the first case and
not to the second. On this basis, we
find it difficult to justify the latter part of the observations made by the
State Commission. In these circumstances, we allow the Revision Petition No.124
of 2003 qua the petitioner alone, without affecting the liability of the
Carrier. Learned counsel informed that execution had already been filed against
the Carrier.
“Revision petition stands allowed accordingly.”
4. Thus, in the order dated 30.11.2005, all the facts and circumstances of the matter in revision petition no. 125 of 2003 were discussed in detail and the revision petition was allowed on merits as well as points of law. The order was recalled simply because of the inadvertent lack service of notice by publication on the principal respondent, namely, Narendra Kumar Roy Choudhury. In the proceedings subsequent to the recall of the order dated 30.11.2005, this defect was cured and the learned counsel for the said respondent was heard along with the learned counsel for the petitioner. However, even after hearing the parties afresh, the facts and circumstances of the case in revision petition no. 125 of 2003, as detailed in the recalled order as well as the analysis of the relevant points of law in that order, do not lead to any conclusion other than that already arrived at in the recalled order of 30.11.2005.
5. Hence,
the impugned order of the State Commission is set aside and the revision
petition is allowed. There shall be no order as to costs.
......................................................
[S.
N. KAPOOR, J]
......................................................
[B.
K. TAIMNI]
........................................................
[ANUPAM
DASGUPTA]