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A.J. Ramadoss v/s S. Padmavathy and N. Sankar(spouse) Om Siva Sakthi Garments

    Revision Petition No. 1053 of 2012
    Decided On, 09 April 2013
    At, National Consumer Disputes Redressal Commission NCDRC
    By, THE HONOURABLE MR. JUSTICE V.B. GUPTA
    By, PRESIDING MEMBER & THE HONOURABLE MRS. REKHA GUPTA
    By, MEMBER
    For the Petitioner: O.A. Varadadesigan, Authorized Representative. For the Respondent: -------


Judgment Text
Rekha Gupta, Member

Revision petition no. 1053 of 2012 has been filed against the order dated 12.1.2012 in First Appeal No.805/2010 passed by State Consumer Disputes Redressal Commission, Chennai Bench-II (‘State Commission’) in C.C.No.327/2009 passed by District Consumer Disputes Redressal Forum, Chennai (North) Mylapore, Chennai(‘District Forum’).

2. Facts of the case as given by the complainant are as follows;

'The opposite parties moved the Complainant’s father, A.R. Janardhanam a retired railway official, for help in marketing the manufactured garments for export. Since, the opposite parties were very much in need of logistic support and the father of the Complainant was interested in engaging his complainant’s son in some technological service for which he is best fitted in providing printing services on garments to make a sub-oriented service. In order to ensure service association mutually that the Complainant could utilize his technology with the opposite parties who assured supply of garments if logistical support were forthcoming by way of fabrics and sewing machines. The opposite parties demanded and obtained the wherewithal for obtaining logistic services and financial support. The opposite party executed documents (copy enclosed) to this effect, but failed to keep up the promise to supply garments for printing and clearly diverting the money into Real Estate and match making business.

The opposite parties originally proposed to hire twenty machines including ancillaries to promote the business. The husband partner has drained and deserted the lady, then the lady opposite party desired and obtained on her own name a third installment for the fulfillment of service project and the complainant also faithfully believed in the shaping of the proposed garment export project but she diverting the funds on some other ways and the means that she ultimately disappointed the complainant with non supply of promised garments for printing purposes.

Having thus invested in a dream project, the Complainant has incurred a loss of Rs.50,000/- by the disappointment of promised services by the opposite party.

3. District Forum in its order stated that;

'Even though served to the opposite party he was called absent and he was set ex-parte'.

4. District Forum also noted that;

'Aperusal of Ex.A2 would go to show that the so called documents executed with the respondents were only copies of three promissory notes alleged to have been executed by the respondents on 24.7.2006, 25.7.2006 and 2.3.2007. These 3 promissory notes have been produced by the complainant to show that the complainant has availed the service of the opposite party for consideration and there is deficiency in service on the part of the opposite party. The perusal of Ex.A2 series would go to show that the opposite party have borrowed a total amount of Rs.30,000/-form the complainant on three occasions. If at all the complainant has not able to collect the money he had to approach the competent civil court to get at the money. By getting executed 3 promissory notes which could not be terms as agreement. It will not create a Consumer and trader relationship between the complainant and opposite party and complainant could not be termed as consumer for the simple reason he obtained three promissory notes from the opposite party. As such this Forum come to the conclusion that this complaint itself is not maintainable as per the provision of Consumer Protection Act. Since the complainant cannot be brought under the purview of the definition of Consumer under section 2 (d) of the Consumer Protection Act. As such this Forum come to the conclusion that the complainant has miserably failed to prove any deficiency in service on the part of the opposite party and hence this point is answered in favour of the opposite party as against the complainant.

7. Point No.: 2

As we have decided in point No.1 that the complainant himself will not come under the purview of the definition Consumer as per Section 2 (d) of Consumer Protection Act. Then the complainant has miserably failed to prove the deficiency in service. As such the complaint has to be dismissed. The point is answered accordingly.

In the result, the complaint is dismissed. Since the opposite party has not appeared there is no order as to costs'.

5. Aggrieved by the order the petitioner filed an appeal in the State Commission. State Commission noted as follows ;

'5. It is pertinent to note that the complainant has not filed any proof affidavit to substantiatehis contentions and instead the complainant’s father alone has filed proof affidavit and in the proof affidavit, the averment is that the opposite party availed loan executing receipts and the prayer in the affidavit is to direct the opposite party to repay the loan with interest and costs.

6. Ex. A2 series are copies of three demand promissory notes executed by the opposite party in favour of the complainant. There is absolutely no evidence on record to establish that the complainant had consumer relationship with the opposite party. On perusal of the complaint, the proof affidavit filed by his father and Ex.A2 series, it is clear that the complainant has advanced loan to the opposite party for interest on obtaining three promissory notes from the opposite party; and that it is purely a loan transaction which does not come under the purview of Consumer Protection Act. There is no proof affidavit filed by the complainant and even in the proof affidavit filed by his father nothing is mentioned about any consumer relationship between the complainant and the opposite party. It is pertinent to note that the relief sought in the complaint is to direct the opposite party to repay the loan amount with interest and costs. Therefore, obviously this complaint is filed before the District Forum abusing the process of law, instead of filing a suit before the Civil Court.

7. Therefore, the complaint is not maintainable under the Consumer Protection Act and accordingly the complaint is liable to be dismissed.

8. The District Forum has rightly dismissed the complain holding that the complaint is not maintainable under the Consumer Protection Act and that the question of deficiency in service on the part of the opposite party does not arise.

9. We agreewith the finding and decision of the District Forum, and accordingly the appeal is liable to be dismissed.

10. In the result, the appeal is dismissed confirming the order of the District Forum dismissing the complaint. No order as to costs in the appeal'.

6. Hence, this revision petition. 7. There are no specific grounds given in this revision petition.

8. We have heard the Authorized Representative of the petitioner, Sh.A. R. Janardhanam. He has failed to provide any document or evidence in support of his case and against the respondent.

9. It is an undisputed fact that the documents placed on record by the petitioner are only three promissory notes which would go to show that the respondent had borrowed total amount of Rs.30,000/-form the petitioner on three occasions. Three promissory notes cannot be termed as an agreement. Hence, same will not create Consumer and Trader relationship between the petitioner and the respondent. Hence, we feel that the State Commission rightly came to the conclusion that the complaint itself is not maintainable as per provisions of the Consumer Protection Act, 1986 (for short, ‘Act’). The District Forum had also rightly come to the same conclusion. The petitioner has totally failed to prove that he is ‘Consumer’ as per Section 2(d) of the Act, as also to prove deficiency in service against the respondent .

10. Under section 21 (b) of the Act, this Commission can interfere with the order of the State Commission where such State Commission has exercised jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.

11. I

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n view of the concurrent findings of facts given by the fora below, no jurisdiction or legal error has been shown to call for interference in the exercise of power under section 21 (b) of the Act. Both fora have given cogent reasons in their order which do not call for any interference nor do they suffer from any infirmity or revisional exercise of jurisdiction. 12. Thus, there is no merit in the present petition and same is accordingly dismissed with cost of Rs.5,000/- (Rupees Five Thousand only). 13. Petitioner is directed to deposit the cost by way of demand draft in the name of ‘Consumer Welfare Fund’ as per Rule 10A of Consumer Protection Rules, 1987, within four weeks from today. In case, petitioner fails to deposit the cost within prescribed period, then he shall be liable to pay interest @ 9% p.a. till its realization. 14. List on 17th May, 2013 for compliance.
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