M/s Sahkari Sangh Ltd vs M/s Durga Agro Seed Farm

Justice Sudip Ahluwalia, Member

This Revision Petition has been filed by the Petitioner/ Complainant challenging the impugned order dated 13.10.2016 passed by the State Consumer Dispute Redressal Commission, UP Lucknow in Appeal No.711 of 2009. Vide the said order, the State Commission allowed the Appeal while setting aside the order dated 20.03.2008 passed by the District Consumer Disputes Redressal Forum, Unnao, in Consumer Complaint No. 138 of 2007.

The brief facts of the case are that the Complainant is a Co-operative Society which was granted license by the State Government for supply/ distribution of approved seeds to the farmers, and the Opposite Party is a seed supplying firm/ agency. The Complainant society gets commission from the government to run the society. The Complainant placed an order in the year 2006-2007 with the Opposite Party for supply of 300 quintal seeds of wheat to his society and the entire cost/ value of the wheat i.e., Rs.3,43,500/- was paid by means of demand draft no. 506578 dated 01.11.2006 against payment of bank commission of Rs.688/-. The Opposite Party issued an acknowledgement vide receipt no. 541 dated 04.11.2006. The Complainant after having paid the cost of seeds to be supplied by the Opposite Party, became its consumer. The Opposite Party failed to execute the order of supply despite receiving full amount which resulted in  subsequent  failure  of supply of seeds by the  society to  its  farmers.

The Complainant suffered a loss of commission of Rs.30,000/- payable on 300 quintal of seeds and the commission amount accrued in the year 2005-06 which is Rs.40,500/-. Such commission was not paid to the Complainant due to non- supply of seeds by the Opposite Party resulting in no distribution of seeds to farmers in 2006-07, hence, causing total losses of Rs.70,500/-. Hence, the Complaint was filed before the District Forum being aggrieved by the deficiency in service of the Opposite Party seeking refund of Rs.3,43,500/- along with interest @ 18% p.a. w.e.f. 04.11.2006, losses of Rs.1,21,188/- and litigation cost of Rs.5,000/-.

The Ld. District Forum proceeded ex parte against the Opposite Party as the service of claim on the Opposite Party was found to be sufficient and the Opposite Party had filed no reply.

The Ld. District Forum vide order dated 20.03.2008 allowed the Complaint, ex-parte and observed that:

“5. The Opposite Party in spite of service of summon on him neither appeared nor opposed the case before us. As a result averments made in the plaint/complaint remain undisputed and thus deserve to be expected for want of evidence contrary to facts above. The case of complainant is therefore, worth acceptable….”

Hence, the  District  Forum  directed  the  Opposite  Party  to repay  Rs. 3,43,500/- along  with  interest @ 12%  p.a.  from  date  of  receipt  of amount  dated 04.11.2006  till date of final  payment  in  addition  to Rs.1,21,188/- being the amount of loss suffered and Rs.2,000/- being expenses of the complaint.

Aggrieved by the above order, Appeal bearing No. 711 of 2009 was filed by Appellant/ Opposite Party against Respondent/ Complainant before the State Consumer Dispute Redressal Commission, UP Lucknow. The Opposite Party submitted that it obtained the certified copy of the order of the Ld. District Forum on 20.04.2009. It is further submitted that the Ld. District forum proceeded with the execution application of its order dated 20.03.2008 and had issued a Recovery certificate to District Magistrate, Lucknow. The Opposite Party came to know about the execution application only in April, 2009 when he procured the complete information for filing the Appeal.

The case of Appellant/ Opposite Party is that the Opposite Party received the amount of Rs.3,43,500/- towards 300 quintal seeds of wheat, however, the Opposite Party could not procure wheat at such big quantity due to his ill health and hence, the supply of wheat could not be effected. It was further averred that the Opposite Party was willing to return the amount of Rs.3,43,500/- to Complainant but the Complainant deliberately avoided to receive it back and rather the Complainant pressurized the Opposite Party to effect the supply of seeds. The Appeal was filed by the Opposite Party on the grounds that the decision was passed ex-parte by the Ld. District Forum and the Opposite Party had no notice about the complaint; the Ld. District Forum had no jurisdiction to adjudicate a complaint for refund of Rs.3,43,500/- towards purchase of 300 quintals of seeds as the dispute relating to refund of impugned amount falls within jurisdiction of civil court; the Opposite Party informed about his inability to supply 300 quintal of seeds and the Complainant should take back the amount advanced to him; the Complainant is not a consumer.

The Complainant/ Respondent had filed objections before the Ld. State Commission to oppose the said Appeal. The Complainant averred that neither any notice from the Hon’ble State Commission was sent to the Complainant nor the Appellant/ Opposite Party got it sent to him through due process. It was further stated that the Appellant/ Opposite Party managed to obtain signature of the Complainant on one Vakalatnama issued by the Bar Association, Unnao, in favour of someone else (Another advocate) in the garb of release of funds deposited by the Appellant with District Forum which was filed on behalf of Sri V.K. Mishra, Advocate and got the Appeal case matured, restricting it to submission of written arguments only. It is further submitted that the Opposite Party in a very hurried manner managed to transfer the Appeal Case to Bench 2 and on 25.08.2015 got it reserved in the first hours itself. It was further stated that the Appeal was filed after a delay of 423 days. It is further stated that the service of notice to Opposite Party before the Ld. District Forum was good and sufficient. Hence, the Complainant/ Respondent prayed for the dismissal of the Appeal.

The Ld. State Commission vide impugned order dated 13.10.2016 allowed the Appeal while setting aside the order of District Forum and observed that:

“……First of all there appears no force in the argument placed by counsel of complainant/ opposite party that appellant has not pleaded in his appeal memo that complaint has commercial purpose. Whether purpose of complainant is commercial or not is a legal point/ issue and whether appellant has pleaded it or not, it is duty of the commission to decide above legal point/issue. The own admission of the complainant/ opposite party it has been established that he was engaged in sale of seeds after receipt of supply and earning commission which clearly shows commercial purpose more particularly that the matter relates to commercial purpose. Therefore, the opposite party/ complainant does not fall under the category of consumers. The complainant was therefore, outside purview and jurisdiction of forum below. Therefore, the impugned decision/order deserve to be quashed.”

Hence, the present Revision Petition has been filed by the Petitioner/ Complainant against the above mentioned impugned order of the Ld. State Commission on the grounds that:

a. That the Ld. State Commission has ignored the delay of 423 days in filing the appeal;

b. That the Ld. State Commission has erred in concluding distribution activity of the cooperative society as activity for commercial purpose;

c. That the Complainant only engages in distribution of seeds on demand of member farmers and receives commission for it from State Government. The Complainant buys seeds on demand of member farmers on fixed price and sells these seeds only to member farmers on no profit basis;

Hence, the present Revision Petition has been preferred by the Petitioner.

Heard the Ld. Counsels for the parties. Perused the material available on record.

The matter has a very chequered history. The Consumer Complaint was filed by the Petitioner/Complainant almost 16 years ago in the year 2007.  It was allowed by the District Forum after proceeding Exparte against the Respondent/Opposite Party.  The Opposite Party filed its Appeal challenging the Exparte Order by contending that no notice of the Proceedings had been served upon it, on account of which it was unable to raise any defense against the complaint.  The Appeal was, thereafter, allowed by the State Commission, and this time it was the Petitioner/Complainant who had been proceeded against Exparte in the Ld. State Commission. Now, the said Respondent//present Petitioner-Sahkari Sangh Ltd., has assailed the decision of the State Commission by contending that notice of the Appeal was similarly not served upon it, and has also put in certain allegations of Bench hunting on the part of the Respondent/Opposite Party-M/s. Durga Agro Seed Farm. This Commission instead of going into such allegations and counter allegations, is of the view that substantial justice which is fair and equitable to both sides, is the final requirement at this stage.  It is undeniable that the entire cost/value of the wheat amounting to Rs. 3,43,500/- had been paid by the Respondent/Opposite Party towards supply of 300 quintals of wheat seeds, but the goods in question were not actually supplied for whatever reasons.  Such failure to supply the requisite goods in terms of the original agreement, would certainly amount to ‘deficiency in service’ on the part of the service provider/supplier.  This would, prima facie, be independent of finer aspects like status of the parties for the purpose of holding whether or not it was it actually a consumer dispute, considering that the Complainant/Petitioner is otherwise an non-profiteering organisation.

Now, interestingly, in the Appeal filed on behalf of the Respondent/Opposite Party, it was specifically mentioned in Para 13 thereof that “the Appellant was always willing to refund the impugned amount of Rs. 3,43,500/- to the Complainant/Petitioner but he deliberately avoided to receive it back ……..”.

In this view of the matter, the Respondent had virtually admitted the Complainant’s claim at least on the basis of the facts pleaded in its complaint, and had even offered to refund the advance amount taken by him towards supply of the wheat seeds which however did not materialise.  This Commission, therefore, on 24.1.2023 asked the Ld. Counsel for the Respondent to state whether his client was willing to refund the admitted amount to the Petitioner/Complainant promptly or not. On the adjourned date thereafter (28.2.2023), the Ld. Counsel for the Respondent sought some more time to make the necessary submission on instructions of his client.  But finally on 14.3.2023, he submitted that no instructions in this regard had been forthcoming from the Respondent, on account of appropriate orders as thought fit by this Commission could be passed.

In these circumstances, this Commission is of the view that the ends of justice would be sub-served if the principal amount of Rs. 3,43,500/- is refunded by the Respondent/Opposite Party to the Complainant alongwith the minimum statutory interest @ 6% p.a. w.e.f. 1.1.2007 till the date of final payment. Such payment shall be made within three months from the date of passing of this Order, failing which the future interest from that date onwards shall be enhanced to 10% p.a.

The Revision Petition is, thus, allowed after setting aside the impugned Order passed by the Ld. State Commission.  No orders as to costs.

Pending application(s), if any, also stand disposed off.