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2019 DIGILAW 427 (MAD)

V. Subramanian v. D. Devi

2019-02-13

J.NISHA BANU

body2019
JUDGMENT : 1. These revision petitions have been filed to set aside the order dated 31.08.2018 made in RPSR.No.343, 344 & 345 of 2017 on the file of the Circuit Bench of the State Consumer Disputes Redressal Commission and consequently direct the Circuit Bench of the State Consumer Disputes Redressal Commission, Madurai to number the same and dispose of the same in accordance with law. 2. The petitioners in the CRPs are the respondents in CC. Nos. 1 to 3 of 2008 of the District Consumer Disputes Redressal Forum (hereinafter referred to as ''DCDRF'') and revision petitioners in RSPR Nos 343 to 345 of 2017 before the Circuit Bench of the State Consumer Disputes Redressal Forum (hereinafter referred to as ''SCDRF''). The first respondents in the three CRPs are complainants in CC Nos 1 to 3 of 2008 and carry the order of final award. Perused the records and heard the counsels. 3. The impugned order dated 31.08.2018 made in RPSR Nos 343, 344 & 345 of 2017 had returned the revision petitions filed by the petitioners against the DCDRF Order CC Nos 1, 2 & 3/2008 dated 17.08.2017 that had directed the second respondent firm and the partners including the petitioners to repay the amount promised in the cash certificates issued against the investments of the first respondents along with compensation and costs and an interest amount of 9% per annum calculated from the date of maturity. The petitions were returned with a direction to file appeal within a week after observing that the revision petitions can not be entertained against a final award and that the petitioners had the opportunity to raise all the questions by filing regular appeal. 4. The petitioners along with the respondents 2 to 4 are partners of the second respondent firm. Petitioner No.1 is an advocate by profession practicing since 1987 and Petitioner No.2 is a woman married in the year 1980 and live away from Karur and they are not involved in the day to day activities of the second respondent firm functioning at Karur. The firm had offered investment scheme assuring the doubling of deposit investments in 60 months and issued cash certificates. The first respondents in each of the CRPs had invested an amount of Rs.30,000/- each during 2002 and the amount, as per the scheme, matured in 2007 to Rs.60,000/-. The firm had offered investment scheme assuring the doubling of deposit investments in 60 months and issued cash certificates. The first respondents in each of the CRPs had invested an amount of Rs.30,000/- each during 2002 and the amount, as per the scheme, matured in 2007 to Rs.60,000/-. The petitioners firm had failed to repay the amount on maturity as promised in the cash certificates. As repeated requests to pay the matured amount failed, the first respondents in each of the petitions had approached the District Consumer Disputes Redressal Forum that eventually passed the final award in CC.Nos.1 to 3/2008 dated 17.08.2017. 5. The petitioners, aggrieved by the impugned orders, had filed these CRPs to restore the revision petitions on the file of the Circuit Bench of the State Consumer Disputes Redressal Forum and dispose of them in what they think as in accordance with law. The petitioners allege that the order of the DCDRF was passed ex-parte without issuing any notice to the petitioners. The petitioners contend that the respondents no 1 in each of the petitions are not consumers within the meaning of Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986 in view of the amendment dated 15.03.2013 that excluded transactions intended for commercial purposes. They also relied on the judgment reported in 1994 (4) SCC 225 and contended that prospective investors for future goods are not consumers as held in the said decision. Therefore, they contend that the Circuit Bench of the SCDRF had erred in passing the impugned orders by not exercising the authority conferred on them under Section 17 (1) (b) of the Consumer Protection Act, 1986. They also allege that the order is not speaking. They argue that since the first respondents are not consumers within the meaning of the Act, the DCDRF had no authority and therefore had acted illegally and with material irregularity which is a subject of review by the SCDRF under Section 17 (1) (b) of the Consumer Protection Act, 1986. The petitioners preferred the revision petition instead of regular appeal against the DCDRF orders before SCDRF as they question its jurisdiction and not the merits and as such, it was argued that Section 17 (1) (b) of the Consumer Protection Act, 1986 is attracted. 6. The petitioners preferred the revision petition instead of regular appeal against the DCDRF orders before SCDRF as they question its jurisdiction and not the merits and as such, it was argued that Section 17 (1) (b) of the Consumer Protection Act, 1986 is attracted. 6. Therefore, the question before this court is whether the first respondents in the CRPs are consumers within the meaning of Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986. Once this question is answered, the jurisdiction question raised against the DCDRF by the petitioners in view of the amended Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986 and the legality issue raised against the impugned orders of the Circuit Bench of the SCDRF for refusing to exercise the powers under Section 17 (1) (b) of the Consumer Protection Act, 1986 will automatically stand resolved. 7. The doubt as to whether the first respondents are consumers or not is raised in view of the amendment dated15.03.2003 to Section 2 (1) (d) (ii) to exclude goods and services received for commercial purposes from the definition of consumers for the purposes of the Act. For the sake of convenience, Section 2 (1) (d) of the Consumer Protection Act, 1986 is extracted below:- “2. Definitions. For the sake of convenience, Section 2 (1) (d) of the Consumer Protection Act, 1986 is extracted below:- “2. Definitions. -(1) In this Act, unless the context otherwise requires, (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 such 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 but does not include a person who avails of such services for any commercial purposes; Explanation.—For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment.” 8. A plain reading of the above definition makes it clear that for the first respondents to qualify as a consumer for the purposes of this Act, the service received from the petitioners should be used with their approval against a consideration that is paid or promised and if the condition that the service agreed and availed is not for any commercial purposes is fulfilled. There is no dispute that the services were provided by the petitioners and received by the respondents for the consideration promised to be paid after a tenure of 5 years. The question whether the first respondents used the same for commercial purpose or not is disputed by the petitioners on the ground that the first respondents had invested the money for achieving profits. Therefore, they argued that it is commercial. The question whether the first respondents used the same for commercial purpose or not is disputed by the petitioners on the ground that the first respondents had invested the money for achieving profits. Therefore, they argued that it is commercial. And they are aggrieved with the DCDRF relying on the decision of The SCDRF, Bhopal 2000 (1) CPR 481 which was a preamendment decision. The argument that the services availed by the first respondents is commercial does not seem correct. The decision to exclude commercial consumers from the ambit of the Act was introduced by amendment dated 15.03.2003. The intention of the amendment appears to separate commercial disputes from consumer disputes on the wisdom that consumers needed enhanced protection in view of their vulnerabilities and in pursuance of the object of the Act. By no stretch of imagination, it can be interpreted to conclude that it was introduced to exclude individuals like depositors outside the ambit of the Act. Deposits by investors are savings and not commerce. Deposits are made with a promise of return. Commerce is trade of goods and services. It involves buying and selling of goods and services. Rightly, the NCDRC as recently as 16.02.2015 had ordered relief to the depositors in the case of Mrs. Adelkar Pratibha & Others vs. Shivaji Estate Livestock Farms P Limited in CC No 85 of 2007 under The Consumer Protection Act. 9. Therefore, the argument that the transaction is commercial is fallible and fails. The contention that the impugned orders are illegal and without jurisdiction also fails. More over, it is an admitted fact that the petitioners are partners of the firm, and that the firm offered investment scheme to the respondents and collected money against the promise of returning double the amount in 60 months and issued cash certificates. The fact that the first respondents had invested money during 2002 and the same matured during 2007 and the money is owed is also not disputed. In such a circumstance, no purpose will be served by restoring the revision petitions on the file of the Circuit Bench of the State Consumer Redressal Forum. 10. In view of the above, there is no infirmity in the impugned orders of the Circuit Bench of the SCDRF, Madurai and it need not be interfered with. In such a circumstance, no purpose will be served by restoring the revision petitions on the file of the Circuit Bench of the State Consumer Redressal Forum. 10. In view of the above, there is no infirmity in the impugned orders of the Circuit Bench of the SCDRF, Madurai and it need not be interfered with. As observed in the order under challenge, the petitioners can raise their questions in appeal before the said forum. The petitioners are allowed one week time from the receipt of this Order to file the appeal before the Circuit Bench of SCDRF, in the event they choose to do so. These Civil Revision Petitions are disposed on the above terms. No costs. Consequently, connected miscellaneous petitions are closed.