M/S Ankur Seeds P. Ltd. Thr. ... vs Arvind S/O Vithoba Sawai
2017 Latest Caselaw 5953 Bom

        wp5371.17.J.odt                                                                                               1/8    


                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                          NAGPUR BENCH, NAGPUR


                                  WRIT PETITION NO. 5371 OF 2017


        1]  M/s. Ankur Seeds P. Ltd.
             Through its Managing Director,
             27, New Cotton Market Lay-out,
             Oppo. Bus Stand, Nagpur.

        2]  M/s. Tirupati Agro Agencies,
              Through its proprietor, 5-6,
              Wadalkar Bhawan, Subhash road,
              Nagpur - 440018.                                    .....PETITIONERS

                          ...V E R S U S...

              Arvind S/o. Vithoba Sawai,
              Aged about 46 years, 
              R/o-Bhagwanpur, Tah-Bhiwapur,
              District : Nagpur (M. S.)                              ...... RESPONDENT

        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
        Shri J. L. Bhoot, Advocate for the Petitioners.
        Shri Rahul Tajne, Advocate for the Respondent.
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-


                           CORAM  :   S. C. GUPTE, J.

th DATE : 16 AUGUST, 2017.

ORAL JUDGMENT :

Heard learned counsel for the parties.

02] Rule. Rule made returnable forthwith and taken up for

hearing with consent of counsel for the parties.

         wp5371.17.J.odt                                                                                               2/8    


        03]                This   Writ   Petition   challenges   an   order   passed   by   the

State Consumer Disputes Redressal Commission at Nagpur, on an

application made to it under Section 13(1)(c) of the Consumer

Protection Act, 1986. The subject matter of disputes in the two

complaints herein (Complaint Case Nos.CC/17/56 and CC/17/57)

is the quality of pumpkin seeds sold by the petitioners (original

opposite party to the complaint cases) to the respondent (original

complainant in the complaint cases). Since the disputes concern

the quality of the seeds supplied, that is to say, the allegation of

defect in the goods, a request was made to the State Commission

for obtaining a sample of the goods, sealing it and authenticating

and thereafter, referring the same to an appropriate laboratory for

an analysis or test. It is submitted that only after such analysis or

test would it be clear as to whether the goods suffered from the

defect alleged or not. This request was rejected by the State

Commission. Hence, the present writ petition.

04] The complaints allege that despite passage of 60-70 days

after sowing the seeds, though the plants started flowering, there

was no formation of fruit. It is the allegation of the respondent

that upon inspection of the plants, it was found that though the

wp5371.17.J.odt 3/8

plants had flowers, most of them were either male or infertile, and

female flowers were absent throughout. It is submitted that there

was 99% failure on all accounts, that is to say, of minimum

germination, of physical purity and of genetic purity of the product

and the same was, therefore, defective. By its very nature, such a

complaint cannot be decided one way or the other without

subjecting the goods to a test by an appropriate laboratory. It is in

fact in cases such as this that the District Forum or the State

Commission, as the case may be, is called upon the apply the

provisions of Clause (c) of Sub-Section (1) of the Section 13 of the

Consumer Protection Act and subject the goods to appropriate

laboratory test. Since the conditions here are truly classical to call

for a laboratory test, one fails to understand why the application

was rejected by the State Commission. The purported reason given

by the State Commission for rejecting the application is that no

fruitful purpose would be served if the sample of the seeds is sent

to the laboratory for testing after 12 th October, 2016, since that was

the expiry date mentioned on the packets of the seeds. The State

Commission is not an expert to fathom as to whether the particular

qualities which are in question in the present complaint are or are

not capable being tested after the alleged expiry date. This is a

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purely technical issue which ought to have been left rather to the

laboratory to analyse and report on than the Court rule on. It is

the case of the petitioners that it has maintained a proper record of

the seeds within the meaning of Sub-Rule (3) of Rule 13 of the

Seeds Rules, 1968 and if samples from these Seeds are sent to the

laboratory for analysis, they will yield desired results and enable

the laboratory to reflect on the alleged defects in the goods

accurately. Anyway this is a matter to be left to the laboratory and

this Court has nothing to say one way or the other.

05] The State Commission has also observed in its impugned

order that seed samples, which are meant for further record and

reference, should be large enough to do purity analysis and be

packed in good quality paper, etc.. The Commission has also

referred to the sampling requirements in this behalf according to

the seeds testing manual. After noting these aspects, the State

Commission has proceeded to observe that there was no evidence

to show that the opposite party actually complied with the

instructions given in the seeds test manual. The question is, did the

Commission call for such evidence. The matter appears to have

been disposed of by the State Commission at the very threshold,

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without allowing the party to produce any evidence in this behalf.

06] In the premises, the impugned order of the State

Commission obviously cannot be sustained. Ordinarily, this Court,

in the premises, would have remanded the matter to the State

Commission for allowing the parties to produce material in support

or defence of the application. Considering, however, the imperative

need to urgently subject the goods to laboratory tests and

considering further the petitioners' plea that samples, which are

being sent to the laboratory for analysis, are duly maintained in

accordance with the sampling procedure, which is anyway a subject

matter for the laboratory to satisfy itself with and finally for the

State Commission to rule on, this Court is of the view that the

application under Section 13(1)(c) of the Consumer Protection Act,

1986, should rather be disposed of by this Court itself.

07] Learned counsel for the respondent objects to this Court

passing an order on merits relying on the judgment of the Hon'ble

Supreme Court in the case of Cicily Kallarackal ..vs.. Vehicle

Factory, (2012) 8 Supreme Court Case, 524. Learned counsel

submits that there is a remedy both by way of an appeal and a

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revision against an order passed by the State Commission and both

remedies would lie before the National Commission at Delhi. It is

important note in this behalf that the provisions of appeal, though

the Section (Section 19) uses the word "order" generally, relate to

orders, which in a sense adjudicate the rights of the parties or

affect their interests. It is not any and every order passed by the

Consumer Forum or State Commission which is subjected to an

appeal. I am fortified in this view by a judgment of our Court in

the case of Virumal Ladharam Rajani ..vs.. Shataayu Hospital

and Research Center, 2005(3) Mh. L. J.. The impugned order in

the present case clearly is not an order which either adjudicates the

rights of the parties or affects their interests so as to invite the

appellate jurisdiction of the National Commission. At best, it could

be said that there is a provision for filing of a revision before the

National Commission. The remedy of revision is not really a matter

of right and is something of a discretion of the National

Commission. Considering the controversy before this Court in the

present petition and also considering the nature of the application

and the imperative need to have same disposed of promptly so as

to avail of the current sowing season, when the product can be

subjected to a grow out test, this Court is of the view that it should,

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in the interest of justice, entertain and dispose of the petition,

particularly now that this Court has extensively heard it, rather

than leave it to the National Forum at Delhi to apply its mind

afresh to it.

08] In the premises, the following order is passed :

O R D E R.

(i) The State Commission is directed to obtain a sample of

the goods from the petitioner and after sealing and

authenticating the same in the manner prescribed, refer

the sealed sample to the appropriate laboratory for a

grow out test. Before accepting such sample, the State

Commission shall insist on material to be produced to

satisfy itself that the sample is from the same batch as

was sold to the respondent. It is made clear that

sending of the sample to the laboratory for testing does

not in any way impair the respondent's right to object to

the selection of the sample or to its efficacy including

the modes and methods of preservation adopted by the

petitioner and all other objections on merits. These are

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matters to be decided by the State Commission at the

hearing of the consumer complaint.

(ii) The State Commission is directed to send the sample to

the laboratory for a grow out test within a period of 7

days of receipt of the same from the petitioners.

(iii) Rule is made absolute in the above terms and the

petition is disposed of.

(iv) All parties including the State Commission to act on a

copy of this order duly authenticated by the Sheristedar

of the Court.

JUDGE PBP