order on subject of commercial purpose in consumer revision application

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087

Revision Petition No. RP/38/2022 ( Date of Filing : 06 Apr 2022 ) (Arisen out of Order Dated 25/09/2020 in Case No. Complaint Case No. CC/169/2020 of District Kolkata-II(Central))   1. Hyundai Merchant Marine Ltd. & Another Leela Business Park, 302, 3rd Floor, Near Airport Road Metro Station, Marol Pipe Line, Andhari Kurla Road, Andhari East, Mumbai, Maharashtra, Pin- 400 059. 2. Seabridge Marine Agencies Pvt. Ltd. 55 & 55/1, Chowringhee Road, Chowringhee Court, 1st Floor, Kolkata- 700 071. ...........Appellant(s) Versus 1. Prem Singh Randhawa (Director) 101, G.T.Road (S), 5th Floor, Amantran Building, Howrah, Pin- 711 101, West Bengal. ...........Respondent(s)

BEFORE:     HON'BLE MR. SHYAMAL KUMAR GHOSH PRESIDING MEMBER   HON'BLE MR. SUBHRA SANKAR BHATTA JUDICIAL MEMBER

PRESENT: Ms. Shalini Mukherjee, Mr. A. Chakraborty, Advocate for the Petitioner 1   Avijit Bhuina, Advocate for the Respondent 1

Dated : 20 Mar 2023

Final Order / Judgement       SRI SHYAMAL KUMAR GHOSH, PRESIDING MEMBER The instant Revision Petition has been filed by the revisionists/opposite-parties against the order impugned dated 25/09/2020 passed by the ld Trial Commission, Kolkata  Unit-II (Central) in connection with MA case being no-225/2020 wherein the ld Trial Commission concerned has been pleased to pass the following order:- “That the ops are directed to immediate release of two computerized embroidering machine lying inside the container on accepting the container detention charges $ 3000 within 07 days from the date of communication of the order. The compensation as claimed by the ops will be decided at the time of final hearing of the instant case. Thus the MA being no-225/2020 is disposed of.” Being aggrieved and dissatisfied with such order the instant Revision Petition has been filed by the revisionists/opposite parties before this Commission. The factual matrix of the case is that the complainant purchased two computerized embroidering machine from Zhuji Xintianlong Computer Embroidery Machine Company Ltd. China on 14/01/2020 at a total consideration $35000 against advance payment of $ 9000 with an undertaking to pay the rest amount after confirmation of arrival of goods at Kolkata Port. It is true that the machine in question has already arrived at Kolkata Port but no intimation of arrival was given to the complainant by the ops. On the contrary, the customs department imposed penalty due to latches on the part of the ops. There is also no dispute that there is complete lockdown in India due to pandemic covid-19 and the office of the complainant situated at Howrah was also declared as containment zone. The facts remains that some e-mails were exchanged between the parties but no fruitful results come out. The ops first time vide e-mail dated 07/06/2020 informed the complainant regarding arrival of the goods in question and they had been trying to collect the amount by way of adopting unethical practice. Having no other alternative the complainant knocked at the door of the Trial Commission for getting proper reliefs as prayed for. Having heard both sides and upon careful perusal of relevant documents and papers the ld Trial Commission has been pleased to pass the aforesaid order in MA case being no-225/2020 and being dissatisfied with such order the instant revision petition has been preferred by the revisionists/opposite parties with the prayer for setting aside the order impugned dated 25/09/2020 along with other prayers mentioned in the instant petition. The ld counsel appearing for the revisionists/opposite parties has argued that Prem Singh Randhawa, Director of Trishtha Industries Pvt Ltd. is not a consumer. The commercial motive is involved in the said petition of complaint and as such the complainant does not come within the purview of the definition of the ‘consumer’ as per Consumer Protection Act, 2019. Secondly, the ld counsel further added that the instant consumer case suffers from non-joinder of the necessary party and accordingly the Port Trust Authority as well as Custom Authority both should be added as necessary parties in the cause title in order to settle the disputes between the parties to the case in a proper manner. There is wrong/mistake/error in passing the order impugned and as such ld counsel has prayed for setting aside the order impugned dated 25/09/2020 with exemplary costs. The ld counsel appearing for the complainant/respondent has argued that the complainant has filed the petition of complaint being no- CC/169/2020 before the ld Trial Commission, Kolkata- II (central). On 25/09/2020 ld Trial Commission concerned has been pleased to pass an ad-interim order with a direction to the opposite party to immediate release of two machines lying inside the container on accepting the container detention charges $ 3000 within 07 days from the date of communication of the order. Ld counsel further argued that the revisionist preferred a revision petition being no – RP/39/2020 before this Commission challenging the order dated 06/11/2020. On due consideration this Commission has been pleased to hold that the ld District Forum cannot proceed with the same without determining the actual status of the respondent ie whether or not the respondent qualifies as a consumer and direction has also been given to the revisionists to appear before the concerned Forum on 15/02/2021 for moving maintainability petition. The ld counsel appearing for the complainant/respondent further submitted that the ld District Forum (now Commission), after hearing both parties has been pleased to pass an order on 12/04/2021 and challenging the said order dated 12/04/2021, the revisionists/opposite parties also preferred another revision petition being no-RP/27/2021 before this Commission. Upon hearing of both sides this Commission, vide order dated 25/02/2022, has been pleased to hold that the object of revision petition is frustrated and the same is dismissed. The impugned order dated 12/04/2021 being just and substantial in the present context, the same is affirmed. Thereafter, challenging the order dated 12/04/2021, the revisionists filed another RP being no-RP/326/2022 before the Hon’ble NCDRC but the same was withdrawn. Thereafter, the revisionists/ops further filed the present revision petition before this Commission challenging the order dated 25/09/2020. Only for causing harassment the revisionists/opposite parties filed the several above referred RPs against the complainant. There is no such wrong, error or any illegality in passing the said impugned order dated 25/09/2020 in connection with MA being no-225/2020. Accordingly the ld counsel has prayed for dismissal of the instant revision petition. We have heard the ld counsels for both sides at length and in full. We have considered the submissions of both sides. We have perused the materials available on the record meticulously.           It is an admitted fact that a Revision petition being no-RP/39/2020 has been directed against the order dated 06/11/2020 passed by the ld District Commission, Kolkata-II (Central) in CC/169/2020. In the aforesaid Revision Petition ld advocate for the revisionists submitted that the respondent happens to be one of the Director of M/S- Trishtha Industries Pvt Ltd, the de facto importer of the machine in question. Ld counsel also added that the aforesaid firm employs several employees and that the said machine was imported purely for commercial purpose. But having heard the ld counsel the State Commission held that while the very maintainability of the case has been called in question, the ld District Forum cannot proceed with the same without first determining the actual status of the respondent ie whether or not the respondent qualifies as a consumer and the parties are directed to appear before the ld District Commission on 15/02/2021 for moving maintainability petition by the revisionists, if not filed already. The fact remains that another Revision Petition being no-RP/27/2021 has been directed against the order dated 12/04/2021 passed by the concerned Trial Commission in connection with CC case no-CC/169/2020 and being aggrieved and dissatisfied with such order the instant RP has been filed before this Commission. In the said case both sides have filed some citations whether the complainant/respondent is a consumer or not. At the end of the argument ld advocate of the revisionist admitted that without taking the evidence, the present issue of “commercial purpose” could not be ascertained at this initial stage. The impugned order dated 12/04/2021 being just and substantial in the present context, the same was affirmed. Thereafter, another Revision petition being no-326 of 2022 has been preferred by the revisionists challenging the order dated 25/02/2022 passed by the State Commission in RP being no-27 of 2021 arising out of the order dated 12/04/2021 passed by the ld DCDRF in CC case no- 169/2020. But upon careful perusal of the order dated 12/04/2022 passed by the Hon’ble NCDRC, in RP no-326/2022 it appears to us that the petitioners intended to withdraw the revision petition and as such the Revision Petition no 326/2022 has been dismissed as withdrawn. At this juncture it is clear to us that when the revision petition being no-326/2022 has been withdrawn the order dated 25/02/2022 passed by this Commission remains unchallenged and subsequently the order dated 25/02/2022 passed by this Commission and the order dated 12/04/2021 passed by the concerned DCDRC both have been affirmed. After completion of elaborate observations finally we take the view that without taking evidence the issue regarding commercial purpose cannot be ascertained. Moreover, when the matter has already been admitted and registered as CC/169/2020, we cannot throw the same at this initial stage. It is the settled principle of law that the opportunity should be given to both parties in order to prove their case and to that effect adducing evidence is very much pertinent in order to find out the actual truth of the case. Be it mentioned here that the Consumer Protection Act 2019 has been enacted exclusively for the benefit of the consumer/consumers. So their claim should not be defeated in any manner at this initial stage. Rather regarding the plea of non-joinder of necessary parties taken by the revisionists/ops, the interlocutory petition may be filed at their behest before the concerned Forum and regarding commercial purpose the State Commission has already decided to take evidence in order to ascertain the said issue. Be it mentioned here that the Complainant already took the plea of livelihood by means of self-employment which is categorically mentioned in paragraph no. 21 of the petition of complaint. Considering all aspects from all angles and keeping in mind the present position of law and regard being had to the submissions of the ld counsels we are of the view that there is no such wrong/error/illegality in passing the order impugned dated 25/09/2020 passed by the concerned Trial Commission and accordingly we affirm the said order. Hence                                            O R D E R E D That the instant Revision Petition being no-38/2022 stands rejected on contest without any order as to costs. The opposite parties are hereby directed to implement the order dated 25/09/2020 with immediate effect otherwise the law will take its own course. The instant RP stands disposed of. Note accordingly. Let a free copy of this order be supplied to the parties free of costs.

[HON'BLE MR. SHYAMAL KUMAR GHOSH] PRESIDING MEMBER     [HON'BLE MR. SUBHRA SANKAR BHATTA] JUDICIAL MEMBER