Kulbhushan Churra Senior Commercial Manager, Usha International Limited and Another Vs. Simar Kaur - Court Judgment

Excerpt:
consumer protection act, 1986 - section 21(b); comparative citation: 2013 (4) cpr 150 dr. b.c. gupta, member this revision petition has been filed under section 21(b) of the consumer protection act, 1986 against the impugned order dated 07.03.2008, passed by the punjab state consumer disputes redressal commission (for short the state commission) in fa no. 615/2007, vide which, while dismissing the appeal, the order dated 14.03.2007 passed by the district consumer disputes redressal forum, jalandhar, allowing the consumer complaint number 135/2005, filed by the present respondent simar kaur was upheld. 2. brief facts of the case are that as stated by the complainant, she wanted to run the business of running a sewing school in the name of m/s. ram simar institute of fashion technology, janta colony, bhogpur, in affiliation with the present petitioners and usha sewing school network. the complainant deposited a bank draft no. 011018 1442960001 dated 16.04.2003 of amount rs.51,032/- in favour of the petitioner/op, which was encashed by the petitioners. the complainant has stated that she constructed four rooms on a plot of 1 kanal 10 marlas area and arranged for furniture, fixtures, etc. for setting up the said school, but affiliation was not granted by the petitioner, due to which she suffered huge loss amounting to rs.10 lakh. the complainant sought a direction to the petitioner/op to pay an amount of rs.5 lakh as compensation for deficiency in service, negligence and unfair trade practice on his part due to non-affiliation/approval of sewing school/institution. the district forum vide their order dated 14.03.2007, allowed the said consumer complaint and directed the petitioners to return the amount of rs.51,032/- alongwith interest @ 9% p.a. from the date of deposit till payment. the district forum also allowed a compensation of rs.5,000/- for unfair trade practice and rs.2,000/- as litigation expenses. an appeal preferred against this order was decided by the state commission vide impugned order dated 07.03.2008. the state commission upheld the order of the district forum, stating that the amount of rs.51,032/- had admittedly passed on from simar kaur to the petitioner. 3. at the time of hearing before us, the learned counsel for the petitioner contended that as stated in their written reply in the consumer complaint, the said draft was given by the complainant to mr. prem sabharwal of m/s. p.s. enterprises, guru nanak nagar, jalandhar. mr. prem sabharwal handed over the same draft to the petitioner against his own outstanding dues with the petitioners. the petitioners had nothing to do with the complainant and even otherwise, the complainant was not a consumer, as she had given the money for commercial activity. they also stated that the complainant never gave any application to them for setting up any school etc. learned counsel stated that the said prem sabharwal of m/s. p.s. enterprises had not been made a party in this case. the state commission have observed in their order that it was for the petitioners to verify as to whether the bank draft had been got prepared by mr. prem sabharwal of m/s. p.s. enterprises or by simar kaur respondent. learned counsel argued that once draft was handed over to them by prem sabharwal, it was nowhere their duty to find out, as to by whom the said draft was made. learned counsel further invited our attention to the letters written by the complainant to the petitioners and complaint lodged by them to the station house officer (s.h.o.), police station bhogpur, in which the complainant has clearly stated that the said draft of rs.51,032/- was handed over by them to mr. a. sabharwal, manager (sales), p.s. enterprises, guru nanak nagar, jalandhar. the complainant had paid another sum of rs.59,543/- in cash to mr. a. sabharwal for the purchase of machines. a letter was sent by the petitioner also to the sho, police station, bhogpur dated 15.09.2003, in which it has been stated that m/s. p.s. enterprises was their dealer for the promotion of sale of usha sewing machines. in march 2002, a cheque of rs.2,06,208/- was issued by prem sabharwal of p.s. enterprises in favour of the petitioner, but it was returned unpaid and accordingly, the petitioners had filed complaint against them under section 138 of the negotiable instruments act, and also fileed civil case against them for the recovery of their money. however, on 22.04.2003, mr. prem sabharwal and his son arthen sabharwal visited their office and deposited the said demand draft of rs.51,032/-as part payment. the petitioner was neither aware, nor it was his concern that the said draft was made by simar kaur. learned counsel stated that the petitioner had not done any unfair trade practice with the complainant and hence, he was not liable to pay any compensation to her. 4. in reply, the authorised representative of the complainant stated that they wanted to do business with the petitioner and hence, they made the demand draft in question in their favour. however, the petitioner failed to supply them the necessary machines and had not returned their money, which constitutes deficiency in service and unfair trade practice. they had filed a complaint with the police also, stating these facts. 5. we have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. it is established from the facts of the case that prem sabharwal and his son arthen sabharwal of m/s. p.s. enterprises are in business relationship with the petitioners for the supply of sewing machines etc. it is also an admitted fact on record that the complainant simar kaur had handed over the draft to arthen sabharwal, as stated by her in report to the local police. the said draft was handed over by arthen sabharwal to the petitioners, against their outstanding dues with the petitioner. it is made out from these facts that prem sabharwal, arthen sabharwal and p.s. enterprises are necessary parties in this case, but the complainants have not impleaded them as parties, despite admitting clearly that the draft, in question, was handed over to arthen sabharwal. it is true that the money belongs to the complainant, which got passed on to the petitioners through p.s. enterprises, but it is nowhere established as to how the petitioners indulged in any unfair trade practice or shown any deficiency in service, vis-à­¶is, the complainant. it is also stated in clear terms that the said money was handed over for starting a commercial activity and hence, the complainant does not fall within the definition of consumer in the strict sense of term. 6. based on the discussion above, it is held that the petitioner is not liable to pay any compensation or any relief to the complainant, as they have not indulged in any unfair trade practice against the complainant. it is made out from the facts on record that this is purely an issue for invoking jurisdiction of the civil court, if the complainant wants her money back from the petitioner or from m/s. p.s. enterprises. the revision petition is, therefore, allowed and the orders passed by the state commission and district forum are set aside. the consumer complaint is ordered to be dismissed. there shall be no order as to costs.