J.M. MALIK:
1. The whole controversy centers around the question, “Whether the complainants are consumers or not, Whether their intent was to earn multi-profits /huge profits or to earn their livelihood?”. These are the principal questions which have to be adjudicated.
2. The instant complaint has been filed by two complainants, namely, Jayantilal Trikambhai Brahambhatt and Maheshbhai Chimanbhai Patel, on behalf of a number of alleged individual consumers because the right and interest of present complainants and all the other individual and numerous consumers are identical and co-extensively cumulative, by virtue of nature of privity and contract, between the opponents and the complainants, together with various/numerous consumers whose rights and interests are being represented by the complainants in this complaint. They have also filed application under Section 12-C read with Section 22 of the Consumer Protection Act, 1986.
3. Abhinav Gold International Marketing Private Limited, OP1 is a Company which has its registered office at Bhilwara. They are engaged in the business of trading marketing the gold, silver and also to carry and run the said business through agents etc.
4. In the month of March, 2009, the complainants/numerous consumers came in contact with opponent company through their advertisements and/or local level marketing their channel personnel. The OPs carried out extensive and large scale marketing of their investment plans/business scheme in the nature of multilevel marketing by conducting larger scale meeting, seminars and conferences and also published advertisement in the local daily newspaper in Vadodara, Surat, Rajkot, Ahmedabad, Jamnagar, Bhuj, Gandhidham, Surendranagar, Anand, Nadiad inviting consumers/ investors to invest in their business scheme, which also contained assurances of huge returns in investment from March, 2010 upto October, 2011. Numerous consumers subscribed to such plans/ business schemes and continue to remit and invest the amount regularly in the month of March, 2009 to June, 2011. The opponents also opened their Show Rooms, Stores, Business Centre at Vadodra and Surat in the year 2011-2012.
5. In October, 2010, the opponents started indulging in avoidance and evasion in performing their promise given to consumers for payment on investments in terms of their plans/schemes and unilaterally changed, modified, withdrawn their schemes/plans and also fabricated excuses to patch up dishonest defaults and deficiencies.In October, 2011, opponents declared abruptclosure of their business and suspended all their fields and marketing activities. They also closed their Show Rooms in November, 2011. Criminal cases were filed against them.
6. Under the above said circumstances, the present complaint was submitted in this Commission on 31.08.2012, with the prayers that the opponents be directed to remit and pay the amount, as is assured and promised to be payable by opponents to each individual. Secondly, compensation in the sum of Rs. 50 Crores be granted to the complainants, the opponents be restrained and stop and discontinue the above said unfair trade practice, and the losses suffered by the complainants be compensated, etc.
7. We have heard the counsel for the complainant. The counsel for the complainant vehemently argued that the complainants/ numerous individuals are the retired government servants or senior citizens. They have invested their amount and paid Rs. 6,000/- or more each to the opponents in the hope that they would get a big benefit from them. It was argued that the OPs had led the complainants/numerous individuals up the garden path. He contended that the complainants and other individuals are the consumers. They are the investors. Our intention was invited towards the pamphlet under the caption " Abhinav Gold International Marketing Private Limited". The first page reads "Golden Life, Golden Future". The said pamphlet is in Hindi language but on the first page the following words are mentioned "Customers-cum- Business Promoters, Business Promotion Plans, Business Opportunity". Learned counsel argued that the opponents have cheated their customers .
8. In order to bring his point home, he has cited few authorities. In LucknowDevelopment Authority Vs. M. K. Gupta, AIR 1994, Supreme Court, 787, it was held that:
“The word ‘any’ dictionarily means, ‘one or same or all’. In Black’s Law Dictionary it is explained thus, word “any” has a diversity of meaning and may be employed to indicate “all” or “every” as well as “same” or “one” and its meaning in a given statute depends upon the context and subject matter of the statute. The use of the word ‘any’ in the context it has been used in clause (o) of S. 2 indicates that it has been used in wider sense extending from one to all. The other word ‘potential’ is again very wide. In Oxford Dictionary it is defined as ‘capable of coming into being, possibility’. In Black’s Law Dictionary it is defined as extending in possibility but not in act. Naturally and probably expected to come into existence at some future time, though not now existing. In other words service which is not only extended to actual users but those who are capable of using it are covered in the definition. The clause is thus very wide and extends to any or all actual or potential users”.
It was further held that:
“It has been approved by this Court in Regional Director, Employees’ State Insurance Corporation v. Highland Coffee Works of P.F.X. Saldanha and Sons, (1991) 3 SCC 617: (1991) AIR SCW 2821); C.I.T., Andhra Pradesh v. M/s. Taj Mahal Hotel, Secunderabad (1971) 3 SCC 550: (AIR 1972 SC 168) and State of Bombay v. Hospital Mazdoor Sabha, AIR 1960 SC 610. The provisions of the Act thus have to be construed in favour of the consumer to achieve the purpose of enactment as it is a social benefit oriented legislation. The primary duty of the court while construing the provisions of such an Act is to adopt a constructive approach subject to that it should not do violence to the language of the provisions and is not contrary to attempted objective of the enactment”.
9. Learned counsel for the complainant also invited our attention towards Puneet Kaur Vs. Hindustan Financial Management Limited, III (2003) CPJ 95 (NC) and Punj Lloyd Limited Vs. Corporate Risks India Pvt. Ltd, 2008 (0) GLHEL-SC 42568.
10. Learned counsel for the complainant lastly submitted that the privity of contract between the complainants and the defence, stands proved. This is an admitted fact that they had received booking amount for purchase of gold jewellery and issued the receipts thereon. Their above said relations proves clear relationship of consumer and service provider of financial nature. The complainant has admitted this fact vide their reply that they were ready and willing to supply the jewellery to purchasers or investors.
11. We clap no importance to these arguments. It does not stand proved on the record that the complainants or consumers are the CONSUMERS, under the Consumer Protection Act, 1986. Section 2 (1) (d) (i) and (ii) which runs as follows:
“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 purpose];
[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;]
12. In BiharSchoolExamination Board Vs. Suresh Prasad Sinha, IV (2009) CPJ 34 at 36(SC) : AIR 2010 SC 93 : (2009) 8 SCC 483 the Apex Court has held, as under :-
“Consumer – Definition of:- According to the definition of ‘consumer’ in Section 2(d) of the Act, a person who hires or avails of any services for a consideration, is a consumer. The following category of service-availors will not be consumers : (i) persons who avail any service for any commercial purpose; (ii) persons who avail any free service; (iii) persons who avail any service under any contract of service. A consumer is entitled to file a complaint under the Act if there is any deficiency in service provided or rendered by the service provider”.
13. ThisCommission in Monstera Estate Pvt. Ltd. Vs. Ardee Infrastructure Pvt. Ltd. – IV (2010) CPJ 299 (NC) has held that:-
“Housing – Purchase of space for commercial purpose – There was delay in possession. Complainant was a private limited company. Complainant was nominated for allotment of showroom. Possession not given. Sale deed was not executed. Deficiency in service was alleged. Even if private limited company was treated as ‘person’ purchase of space could not be for earning its livelihood. Purchase of space was for commercial purpose”.
14. Again,this Commission in M/s. Harsolia Motors Vs. National Insurance Co. Ltd., in First Appeal Nos. 159, 160 & 161 OF 2004, decided on 03.12.2004, has held as under:-
“In support of his submission, learned counsel Sh.Sharma, referred to the judicial dictionary meaning of the words ‘commercial purpose’ which is as under:-
“The word “commercial” according to the Oxford Dictionary means viewed as a matter of profit and loss. The word “purpose” means “object which is in view or for which is made” : “aim” “amend”. The word “commercial purposes” would, therefore, cover an undertaking the object of which is to make a profit out of the undertakings. (Municipal Board, Unnao Vs. The State of U.P. 1957 All. L.J. 479 at 498)”.
“According to Oxford dictionary, it means “Viewed as a matter of profit or loss”.
“The word “commercial” is defined in the Concise Oxford Dictionary, New Edition of the 1990, at page 227, the word “commercial” is defined as ‘having profit as a primary aim rather than artistic etc. value’ (Vide Dena Bank, Ahmednagar Vs. Prakash Birbhan Katariya, AIR 1994 Bom 343 at 345)”.
15. It was further held inLaxmi Engineering Works Vs. PSG Industrial Institute, (1995) 3 SCC 583, by the Hon’ble Apex Court as under :
“The National Commission appears to have been taking a consistent view that where a person purchases goods “with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit”, he will not be a ‘consumer’, within the meaning of Section 2 (d) (i) of the Act. Broadly affirming the said view and more particularly, with a view to obviate any confusion – the expression “large scale” is not a very precise expression – Parliament stepped in and added the explanation to Section 2(d)(i) by Ordinance/ Amendment Act, 1993. The explanation excludes certain purposes from the purview of the expression “commercial purpose” – a case of exception to an exception. Let us elaborate : a person who buys a typewriter or a car and uses them for his personal use is certainly a ‘consumer’ but a person who buys a typewriter or a car for typing others’ work, for consideration or for plying the car as a ‘taxi’, can be said to be using the typewriter/car for a commercial purpose. The explanation however clarifies that in certain situations, purchase of goods for “commercial purpose” would not yet take the purchaser out of the definition of expression of expression ‘consumer’. If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of ‘self-employment’, such purchaser of goods is yet a ‘consumer’. In the illustration given above, if the purchaser himself works on typewriter or plies the car as a taxi himself, he does not cease to be a consumer. In other words, if the buyer of goods uses them himself, i.e. by self-employment, for earning his livelihood, it would not be treated as a “commercial purpose” and he does not cease to be a consumer for the purposes of the Act. The explanation reduces the question, what is a “commercial purpose”, to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz, “uses them by himself”, “exclusively for the purpose of earning his livelihood” and “by means of self-employment” make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself, by employing himself for earning his livelihood. A few more illustrations would serve to emphasise what we say. A person who purchases an auto-rickshaw to ply it himself on hire for earning his livelihood would be a consumer. Similarly, a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer. A person who purchases a lathe machine or other machine to operate it himself for earning his livelihood would be a consumer. (In the above illustrations, if such buyer takes the assistance of one or two persons to assist/help him in operating the vehicle or machinery, he does not cease to be a consumer). As against this, a person who purchases an auto-rickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by another person, would not be a consumer”.
16. The Complainant himself argued that the complainants are the investors. It is also clear that their primary aim is to have profit out of these transactions. Every now and then, the words “huge profit”, “multi-profit”, “big profit”, etc., find mention in the complaint. The only purpose is to earn the profits, though it appears that gullible persons have been taken for a ride. There is no evidence or no averment that the above said transaction was entered for self-employment or earning their livelihood. There is no averment that this transaction is the only source for their bread and butter. We, therefore, have no hesitation to hold that the complainants and the person who are seeking relief through them are not the consumers. Consequently the present complaint is not maintainable. The complaint is, therefore, dismissed.