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2005 DIGILAW 194 (CAL)

HINDUSTAN LAW BOOK COMPANY v. GANESH SRIVASTAV

2005-03-21

NARAYAN CHANDRA SIL

body2005
NARAYAN CHANDRA SIL, J. ( 1 ) THIS is to consider a revisional application arising out of an order dated 15. 12. 2004 passed by the State Consumer Disputes Redressal Commission, west Bengal in S. C. Case No. 51/a/2004 affirming the order dated 20. 11. 2003 passed by the Calcutta Unit No. 1 District Consumer Forum in C. D. F. Unit case No. 86 of 2003. ( 2 ) THE facts of the case in brief are that the opposite party Sri Ganesh srivastav filed an application under section 12 of the Consumer Protection Act, 1986 for an order directing the petitioner to resume supply of Calcutta High court Notes Journal, for the year of 2002 forthwith for the rest of his life and also prayed for a compensation to the tune of Rs. 50,000/ -. The said application was filed before the Calcutta Unit No. 1 of the Consumer Forum. Sometime in the year 1981 a notice was published in the journal of Calcutta High Court notes inviting life-membership for getting copies of the said journal for a lifetime on payment of a fee equivalent to 10 times of the then existing subscription to be paid at a time. Accordingly, the payment was made by the complainant and became a life-member of the said journal. In the year 1994 the Hindustan law Book Company had acquired the ownership of the said journal and suddenly stop supply of the same to the opposite party from the month of January, 2002 and hence the complaint was made before the District Forum. ( 3 ) THE petitioner appeared there by filing a written statement denying all material aliegations and it was taken there that the membership was provided only for 10 years and after the expiry of that 10 years the petitioner had no obligation to supply the said journal to the opposite party. It was also taken there that initially the complainant paid a sum of Rs. 600/- towards subscription of Calcutta High Court Notes (hereinafter referred to as "chn" only) when the same was being published in two volumes and contained only decisions of this high Court but from the year 2001 the journal was being supplied in three volumes and thereafter the number of the volumes increased to 4 volumes recently. 600/- towards subscription of Calcutta High Court Notes (hereinafter referred to as "chn" only) when the same was being published in two volumes and contained only decisions of this high Court but from the year 2001 the journal was being supplied in three volumes and thereafter the number of the volumes increased to 4 volumes recently. Thus, it was again stated there, the present petitioner would supply the opposite party only two volumes free of cost in terms of the life-membership and requested the opposite party to pay Rs. 750/- towards subscription of two other volumes which was not accepted by the opposite party before the District forum. It was also agitated there that the present petitioner had no privity of contract with the opposite party. It was also denied that the petitioner before the District Forum was a consumer under section 2 (d) (i) and (ii ). It was further contended there that the soaring costs of publishing the journal with the inclusion of Supreme Court's decisions it was almost impossible for the petitioner to supply the said journal all free of cost for the rest of the life of the opposite party. It is also mentioned in the application before me that the District Forum allowed the said petition directing the present petitioner to pay compensation to the tune of Rs. 5,000/- and also to continue supply of the journal for the rest of the life of the complainant uninterruptedly. The petitioner had appealed against that order but the appeal was dismissed and hence the present revisional application. ( 4 ) MR. Ashis Kr. Sanyal, the learned Senior Counsel appearing for the petitioner/hindustan Law Book Company submits before me that the State forum had no jurisdiction to pass that order. He tries to impress upon me that the term "deficiency" in service has nothing to play in the instant case because the contract was between the opposite party and the erstwhile owner Sumit dutta. But it is admitted by Mr. Sanyal that while purchasing the business from Sumit Dutta the petitioner accepted the contract with all encumbrances. It is pointed out by him that a fixed amount was taken from the opposite party by the erstwhile owner for being a life-member of the journal, Calcutta High court Notes (hereinafter referred to as "c. H. N. " ). Sanyal that while purchasing the business from Sumit Dutta the petitioner accepted the contract with all encumbrances. It is pointed out by him that a fixed amount was taken from the opposite party by the erstwhile owner for being a life-member of the journal, Calcutta High court Notes (hereinafter referred to as "c. H. N. " ). But subsequently the condition became impossible to supply all volumes to the life-members as there was tremendous price hike and further the number of the volumes was also increased from 2 to 4. And as such the contract between the opposite party and Sumit dutta was frustrated in the hands of the petitioner. ( 5 ) IN this connection, Mr. Sanyal has referred to the ratio decided in the case of Satyabrata Ghose vs. Mugneeram Bangur and Co. and Anr. , AIR 1954 SC 44 . The said case was based on a contract. The Hon'ble Apex Court narrated the story behind that case along with the decision as follows (from head note (d)): "the contract in suit was not an ordinary contract for sale and purchase of a piece of land; it was an integral part of a development scheme started by a company and was one of the many contract that had been entered into by a large number of persons with the company. The object of the company was undoubtedly to develop a fairly extensive area which was still undeveloped and make it usable for residential purposes by making roads and constructing drains through it. The purchaser, on the other hand, wanted the land in regard to which he entered into the contract to be developed and made ready for building purposes before he could be called upon to complete the purchase. The most material thing was that there was absolutely no time limit within which the roads and drains were to be made. The war was already on, when the parties entered into the contract. Requisition orders for taking temporary possession of lands for war purposes were normal events during this period. Apart from requisition orders there were other difficulties in doing construction work at that time because of the scarcity of materials and the various restrictions which the Government had imposed in respect of them. Requisition orders for taking temporary possession of lands for war purposes were normal events during this period. Apart from requisition orders there were other difficulties in doing construction work at that time because of the scarcity of materials and the various restrictions which the Government had imposed in respect of them. Held that having regard to the nature and terms of the contract, the actual existence of war conditions at the time when it was entered into, the extent of the work involved in the development scheme and last though not the least the total absence of any definite period of time agreed to by the parties within which the work was to be completed, it could not be said that the requisition order under Rule 79 of the Defence of India Rules vitially affected the contract or made its performance impossible. The events which had happened could not be said to have made the performance of the contract impossible and the contract had not been frustrated at all. " ( 6 ) MR. Prasanta Mukherjee, the learned Senior Counsel appearing with Mr. Soumya Bhattacharya, the learned Counsel for the opposite party submits before me that the opposite party is the consumer and has drawn my attention to the provisions of section 3 of the Consumer Protection Act read with section 2 (d) of the said Act. Mr. Mukherjee has also drawn my attention to the advertisement appeared in CHN dated 1. 11. 1981. He further argues that all the eventualities were foreseen as reflected in the advertisement. It is also pointed out by him that the order of the District Forum was affirmed in the appeal by the State forum and there the points of jurisdiction was raised and disposed of properly. Mr. Mukherjee has also drawn my attention to the provisions of section 2 (g) of the Act in order to apprise me of the definition of the term "deficiency". Mr. Mukherjee has also drawn my attention to the provisions of section 21 (b) of the act and tries to impress upon me that the appropriate remedy of the petitioner was before the National Forum. ( 7 ) MR. Mukherjee appearing for the opposite party has referred to the ratio decided in the case of Punjab National Bank vs. O. C. Krishnan and Ors. , AIR 2001 SC 3208 . ( 7 ) MR. Mukherjee appearing for the opposite party has referred to the ratio decided in the case of Punjab National Bank vs. O. C. Krishnan and Ors. , AIR 2001 SC 3208 . It was held in that case as below (from the head note): "the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 has been enacted with a view to providing a special procedure for recovery of debts due to the banks and the financial Institutions. There is hierarchy of appeal provided in the Act, namely, filing of an appeal under section 20 against order passed by Debt Recovery Tribunal (DRT) directing sale of mortgaged property and this fast track procedure cannot be allowed to be derailed either by taking recourse to proceedings under Articles 226 and 227 of the Constitution or by filing a civil suit, which is expressly barred. Even though a provision under an Act cannot expressly oust the jurisdiction of the Court under Articles 226 and 227 of the Constitution, nevertheless when there is an alternative remedy available judicial prudence demands that the Court refrains from exercising its jurisdiction under the said constitutional provisions. The High Court should not have entertained the petition under Article 227 of the Constitution and should have directed the party to take recourse to the appeal mechanism provided by the Act. The High Court should not have entertained the petition under Article 227 of the Constitution and should have directed the party to take recourse to the appeal mechanism provided by the Act. " ( 8 ) SECTION 2 (d) of the Consumer Protection Act (hereinafter referred to as "act" only) deals with which has it as below : " (d) 'consumer' means any person who, (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment, and includes any user of such goods other than the person who buys partly 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 (ii) (hires or avails of) any services for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any beneficiary of such services other than the person who (hires or avails of) the services for consideration paid or promised or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person. " ( 9 ) HAVING applied that definition of the term "consumer" as quoted above there is no problem for arriving at the decision that the opposite party had purchased the current and all future issues of CHN and the erstwhile owner promised to continue the supply of such issues for the rest of the life of the opposite party. Thus, the opposite party comes within the definition of section 2 (d) of the Act. Tne petitioner Hindustan Law Book Company after having purchased and owned the business from the erstwhile owner with all encumbrances i. e. including the contract between the opposite party and the erstwhile owner admittedly stopped supply of the whole issues of CHN on the ground of price hike and increase of the number of issues. Tne petitioner Hindustan Law Book Company after having purchased and owned the business from the erstwhile owner with all encumbrances i. e. including the contract between the opposite party and the erstwhile owner admittedly stopped supply of the whole issues of CHN on the ground of price hike and increase of the number of issues. This definitely comes within the purview of section 2 (g) where the term "deficiency" has been defined meaning any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service. Here in the instant case the petitioner has stepped into shoes the erstwhile owner Sumit Dutta as the petitioner had purchased the Company with all encumbrances. ( 10 ) A copy of an advertisement appearing in the Calcutta High Court Notes dated November 1, 1981 has been produced on behalf of the opposite party. In order to apprise of the situation before us I think it would be justified to quote the said advertisement in its actual terms and letters. The said advertisement reads as below : "calcutta High Court Notes a LETTER TO OUR SUBSCRIBER november 1, 1981 dear Subscriber, in view of spiralling prices of printing materials we are constrained to raise the subscription of the journal from time to time. We feel the uncertainty of the fluctuating prices and its impact on the subscription cause some inconvenience to you. We have therefore introduced a Scheme for enrolment of Life Subscribers under which you pay your subscription at a time and once for all and, you will be sure of getting the journal throughout the rest of your life. What you need do to become a Life Subscriber is to pay at a time the total amount of subscription payable in the year. Why don't you avail of this unique offer this year itself and save the increased cost: should you however after being enrolled as a Life Subscriber wish to discontinue the journal at any future date, you need only notify us before the expiry of the year and get a refund of the money paid less the amount which would have been payable for the years you received the journal. Trust you will not miss this opportunity and have future trouble. Thanking you, yours sincerely, publisher, CHN" ( 11 ) ON perusal of that advertisement it is clear beyond all speculations that the price hike in future was also taken into consideration at the time of taking the lumpsum amount for supply of all future publications and this is why that total amount of subscription payable for the next 10 years calculated at the current rates were taken from the opposite party by the erstwhile owner at a time. The petitioner has not explained as to why and for what benefit the opposite party was to pay a lumpsum amount equivalent 10 years subscription. The answer perhaps lies to honour the promise for supply of all future publications of CHN to the opposite party during his lifetime. From that point of view, I do not find any material irregularity or illegality in the order passed either by the district Forum or the State Forum. ( 12 ) BESIDES section 21 of the Act appears to have dealt with the provisions of jurisdiction of the National Commission and Clause (b) deals with the provisions as to what to be done by the National Commission in case of an appeal from the order of the State Commission is admitted. It is clearly mentioned there that the National Commission will interfere in such order of the State Commission where it appears to the National Commission that such state Commission has exercised jurisdiction not vested in it by law or has failed to exercise a jurisdiction so vested or has acted in the exercise of its jurisdiction illegally or with material irregularity. But the petitioner instead of approaching the National Commission under section 21 of the Act has preferred this revisional application under Article 227 of the Constitution of India and thereby has invited the "mischief as enunciated by the Apex Court in the case of Punjab national Bank (supra) which has already been quoted in the foregoing lines. Accordingly, this revisional application fails. ( 13 ) THE revisional application is thus dismissed. ( 14 ) LET urgent xeroxed certified copy of this order, if applied for, be given to the learned Advocates for the parties on usual undertaking. Later: ( 15 ) THE learned Advocates for both the parties are present. Accordingly, this revisional application fails. ( 13 ) THE revisional application is thus dismissed. ( 14 ) LET urgent xeroxed certified copy of this order, if applied for, be given to the learned Advocates for the parties on usual undertaking. Later: ( 15 ) THE learned Advocates for both the parties are present. ( 16 ) THE order is passed in the open Court in presence of the learned Advocates of both the parties in separate sheets. The revisional application after having considered the case of both the parties is dismissed. ( 17 ) THE learned Advocate for the petitioner has prayed for stay of operation of the order. Heard the learned Advocate for the petitioner. ( 18 ) IN view of what has been discussed in the order itself, the prayer for stay of the operation of the order passed by this Court is hereby rejected. Narayan Chandra Sil, J. : revisional application dismissed. Prayer for stay of operation rejected.