Shriram Chits (India) Private Limited Earlier Known as Shriram Chits (K) Pvt. Ltd v. Raghachand Associates

Judgment / Order of the Supreme Court Judgment Aravind Kumar, J.

1Copy pinpoint1. Leave granted.

2Copy pinpoint2. The appellant (‘OP’/‘service provider’, used interchangeably) has challenged the order dated 10.03.2021 of the National Consumer Disputes Redressal Commission, New Delhi (NCDRC) in these appeals. The respondent (complainant) had successfully redressed its consumer grievance, originally, before the Principal Consumer Disputes Redressal for Bangalore Urban District, at Bangalore (‘District Forum’). The service provider was unsuccessful in upsetting the order of the District Forum before the State Consumer Disputes Redressal Commission, Bangalore (‘State Forum’) as well as the NCDRC. That is how this matter has come before us.

3Copy pinpoint3. The service provider is a registered Chit Fund company engaged in Chit business. Admittedly, the complainant had subscribed to certain chits in the said business. The subscription was made in the chit group 53005/Ticket No.9 for a chit value of Rs.1,00,000/- payable at the rate of Rs.2500/- per month for a period of 40 months.

4Copy pinpoint4. It is the case of the complainant that the OP had illegally stopped the chit business in the year 1996. The complainant requested the OP to repay the chit amount deposited until stoppage of the business. The OP refused to re-pay the subscription amount since, according to it, the complainant owed certain dues to it and therefore, it adjusted the subscription amount against pending dues of the complainant.

5Copy pinpoint5. Initially, the complainant sought to redress its grievance relating to non-refund of the subscription amount, before the authority

p. 218 Copy page pinpoint

Digital Supreme Court Reports

constituted under the Chit Funds Act 1982.1 Thereafter, the OP filed WP No.22568/2012 with 9 other connected writ petitions against the order of the Additional Registrar. Whereas the Complainant also filed WP No.17045/2014 with 9 other connected writ petitions questioning the finding with regards to the maintainability under the Chit Funds Act. On 16.11.2015, the High Court directed the complainant to approach the Consumer Forum and held that said cases were not maintainable under the Chit Funds Act.

6Copy pinpoint6. It is against this background that the complaint comes to be filed before the District Forum alleging that the illegal termination of the chit fund business and consequent non-refund of the subscription amount, resulted in deficiency of service. The prayer in the complaint was for a direction to be issued to the OP to refund Rs.18,750/- along with future interest at the rate of 18% p.a.

7Copy pinpoint7. In the written version, the OP, apart from contesting the claim on merits, raised a preliminary objection that the complaint is not maintainable since the complainant does not qualify the definition of a ‘consumer’. According to the OP, the service obtained by the complainant was for a commercial purpose, and by that fact, the complainant would stand excluded from availing any remedy under the Consumer Protection Act, 1986. To demonstrate that the service was obtained for a commercial purpose, the OP relied on two circumstances: (a) the statement in the complainant that there was an ‘understanding between complainant and opposite party to promote chit business’; (b) findings2 of an internal audit conducted by the OP.

p. 219 Copy page pinpoint

Shriram Chits (India) Private Limited Earlier Known as Shriram Chits (K) Pvt. Ltd v. Raghachand Associates

8Copy pinpoint8. Against the said pleadings available on record, the District Forum proceeded to frame the following issue: I. Whether the Complainant has proved the alleged deficiency in service by the Opposite Party? II. If so, to what relief the Complainant is entitled?

9Copy pinpoint9. There was no specific issue framed on the preliminary question as to whether the complainant fell within the definition of consumer as understood under Section 2 (1) (d) of the Act of 1986. However, the District Forum did address itself, though incorrectly, to the objection of the OP that the complaint was not maintainable. Instead of examining whether the service availed on behalf of the complainant was for a commercial purpose, the District Forum determined whether the complainant fell within the definition of a “person” as defined in Section 2 (1)(m) of the Act. On merits, it found that there was, in fact, ‘deficiency in service’ and ordered for refund of the claimed amount with interest of 18% p.a.

10Copy pinpoint10. In appeal, the State Forum has cursorily found that the District Forum was correct in concluding that there was deficiency in service, on merits. Nothing has been said, however, as regards the challenge to the maintainability of the complaint even though a specific ground was taken in the memorandum of appeal towards that end.

11Copy pinpoint11. The NCDRC has agreed with the State Forum and District Forum on the merits of the issue and found no reason to interfere with the ‘well appraised detailed order’ of the District Forum. It noted that there was no necessity to reappreciate the evidence de novo since the forums below had properly appreciated the issue in dispute. On the maintainability issue, the NCDRC appears to have mirrored the approach of the District Forum. Instead of examining whether the service obtained by the complainant was for a ‘commercial purpose’, it examined the question of whether the complainant falls within the definition of ‘person’. Neither was such an objection raised by the OP in the version originally submitted before the District Forum nor was such a contention orally taken before the NCDRC. We fail to understand how the NCDRC failed to grasp the exact nature of the maintainability challenge. Be that as it may.

12Copy pinpoint12. It is against the above backdrop that we are called upon to determine the present lis. Instead of remanding the matter back to the Consumer

p. 220 Copy page pinpoint

Digital Supreme Court Reports

Forum we intend to decide the maintainability challenge here itself. The question that has eluded three judicial forums has now to be settled once and for all. That question simply is: Whether the service obtained by the complainant was for a commercial purpose?

13Copy pinpoint13. Section 2 (7) of the Act defines a consumer to mean: Section 2 (7) “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 service 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 service 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 service for any commercial purpose. Explanation.—For the purposes of this clause,— (a) the expression “commercial purpose” does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment; (b) the expressions “buys any goods” and “hires or avails any services” includes offline or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing;

p. 221 Copy page pinpoint

Shriram Chits (India) Private Limited Earlier Known as Shriram Chits (K) Pvt. Ltd v. Raghachand Associates

14Copy pinpoint14. The provision as it stands now (as extracted above) was not how it appeared when it was grafted in the original Act. The definition of ‘consumer’ has undergone textual amendments in 1993 and in 2002. For ease of reference, the evolutionary history of the provision from its origin until the 2019 Act is captured in the table below: Consumer The Consumer The Consumer Consumer Protection Act Protection Protection Protection Act 1986 (Amendment) (Amendment) 2019 Act, 1993 Act, 2002 “consumer” “consumer” “consumer” (7) “consumer” means any means any means any means any person person who,— person who,— person who,— who— (i) buys any (i) buys any (i) buys any (i) buys any goods goods for a goods for a goods for a for a consideration consideration consideration consideration which has been which has which has been which has been paid or promised been paid or paid or promised paid or promised or partly paid and promised or or partly paid and or partly paid and partly promised, or partly paid partly promised, partly promised, under any system and partly or under any or under any of deferred payment promised, system of system of and includes or under deferred payment deferred payment any user of such any system and includes and includes goods other than of deferred any user of such any user of such the person who payment and goods other than goods other than buys such goods includes any the person who the person who for consideration user of such buys such goods buys such goods paid or promised goods other for consideration for consideration or partly paid or than the paid or promised paid or promised partly promised, or person who or partly paid or or partly paid or under any system of buys such partly promised, partly promised, deferred payment, goods for or under any or under any when such use consideration system of system of is made with the paid or deferred payment deferred payment approval of such promised or when such use when such use person, but does partly paid is made with is made with not include a person or partly the approval of the approval of who obtains such promised, such person, such person, goods for resale or or under but does not but does not for any commercial any system include a person include a person purpose; or of deferred who obtains who obtains (ii) hires or avails payment when such goods for such goods for of any service for such use is resale or for resale or for a consideration made with the any commercial any commercial which has been approval of purpose; or purpose; or paid or promised such person, (ii) [hires or (ii) hires or or partly paid and but does not avails of] any avails of any partly promised, or include a services for a services for a under any system of person consideration consideration deferred payment

p. 222 Copy page pinpoint

Digital Supreme Court Reports

who obtains which has been which has been and includes any such goods paid or promised paid or promised beneficiary of such for resale or partly paid and or partly paid and service other than or for any partly promised, partly promised, the person who commercial or under any or under any hires or avails of purpose; or system of system of the services for (ii)hires any deferred payment deferred payment consideration paid services for a and includes and includes or promised, or consideration any beneficiary any beneficiary partly paid and which has of such services of such services partly promised, or been paid or other than the other than the under any system of promised or person who person who deferred payment, partly paid [hires or avails hires or avails when such services and partly of] the services of the services are availed of with promised, for consideration for consideration the approval of or under paid or promised, paid or promised, the first mentioned any system or partly paid or partly paid person, but does of deferred and partly and partly not include a payment and promised, or promised, or person who avails includes any under any system under any system of such service for beneficiary of of deferred of deferred any commercial such services payment, when payment, when purpose. other than such services are such services Explanation. —For the person availed of with the are availed the purposes of who hires the approval of the of with the this clause, — services for first mentioned approval of the (a) the expression consideration person. first mentioned “commercial paid or Explanation.— person but does purpose” does promised, or For the not include a not include use partly paid purposes of person who by a person of and partly sub-clause (i), avails of such goods bought promised, “commercial services for and used by him or under purpose” does any commercial exclusively for the any system not include use purpose. purpose of earning of deferred by a consumer Explanation.—For his livelihood, by payment, when of goods bought the purposes means of self- such services and used by of this clause, employment; are availed him exclusively “commercial (b) the of with the for the purpose purpose” does expressions “buys approval of the of earning his not include use any goods” and first mentioned livelihood, by by a person of “hires or avails person means of self- goods bought any services” employment; and used by him includes offline or and services online transactions availed by him through electronic exclusively for means or by the purposes teleshopping or of earning his direct selling livelihood by or multi-level means of self- marketing; employment;

p. 223 Copy page pinpoint

Shriram Chits (India) Private Limited Earlier Known as Shriram Chits (K) Pvt. Ltd v. Raghachand Associates

15Copy pinpoint15. Structurally, there are three parts to the definition of a consumer. We can deconstruct Section 2(7)(i) as a matter of illustration.3 The first part sets out the jurisdictional prerequisites for a person to qualify as a consumer – there must be purchase of goods, for consideration4 . The second part is an ‘exclusion clause’ [‘carve out’] which has the effect of excluding the person from the definition of a consumer. The carve out applies if the person has obtained goods for the purpose of ‘resale’ or for a ‘commercial purpose’. The third part is an exception to the exclusion clause – it relates to Explanation (a) to Section 2(7) which limits the scope of ‘commercial purpose’. According to the said explanation, the expression, ‘commercial purpose’ does not include persons who bought goods ‘exclusively for the purpose of earning his livelihood, by means of self-employment’. The significance of this structural break down will be discussed shortly.

16Copy pinpoint16. The carve out existed as part of the original enactment. However, the Explanation to Section 2(7) was inserted by amendment in 1993.

17Copy pinpoint17. Judicial experience has shown us that the service providers most often than not take up a plea in their written version that the service obtained/goods bought was for a commercial purpose. For, if they succeed in their plea, the complainant is excluded from availing any benefit under the Act. According to Section 11, the District Forum has jurisdiction to entertain complaints ‘where the value of the goods or services and the compensation, if any, claimed does not exceed rupees twenty lakhs’. The expression ‘complaint’ is defined in Section 2(1)(7)(c) to mean any allegation made in writing by a complainant relating to certain enumerated subjects. A complainant is defined 2(1)(b) to mean a consumer, among other entities. Therefore, to file a complaint, one must be a complainant and for one to be a complainant, he must be a consumer. If a person fails to come within the definition of a consumer, he cannot be a complainant5 and therefore, such person cannot file a complaint under the Act.

3 The logic can be identically extended to Section 2(7)(ii) 4 The consideration may have been paid or partly paid or agreed to be paid in future. 5 Complainant is defined under Section 2 (1) (b) of the Act. A complainant means – (i) a consumer; or (ii) any voluntary consumer association registered under the Companies Act,1956 or under any other law for the time being in force; or (iii) the Central Government or any State Government, who or which makes a complaint.

p. 224 Copy page pinpoint

Digital Supreme Court Reports

18Copy pinpoint18. In the facts of the instant case, the OP had raised a plea in its version that the complainant does not satisfy the definition of consumer since the service was obtained for a commercial purpose. Sri Shailesh Madiyal, learned Senior Advocate for the OP has argued vehemently that the complainant has not pleaded let alone prove that the services availed by it was for securing the livelihood of the complainant by means of self-employment. According to Sri Shailesh Madiyal, the onus to prove that services were availed for earning livelihood rests on the complainant. In support of his submission, he has relied on Laxmi Engineering Works – (1995) 3 SCC 583; Leelavathi Kirtilal Medical Trust v. Unique Shanti Developers – (2020) 2 SCC 265; Cheema Engineering Services (1997) 1 SCC 131 and; Paramount Digital Lab (2018) 14 SCC 81.

19Copy pinpoint19. Before we deal with the contention of Sri Shailesh Madiyal, it would be necessary to set out the manner in which consumer forums must decide technical pleas raised by service providers to the effect that the services obtained/goods bought was for a commercial purpose and, therefore, the complaint filed on behalf of such persons are not maintainable. The crucial step in deciding such pleas would turn on the manner in which the issues are framed. Unless the burden of proof is properly cast on the relevant party, the consumer forum would not be in a position to arrive at proper decision. Therefore, we proceed to provide some guidance on how the issues must be framed and the manner in which the evidence must be appreciated.

20Copy pinpoint20. As we have shown above, the definition of consumer has three parts. The significance of deconstructing the definition into three parts was for the purpose of explaining on whom lies the onus to prove each of the different parts. There can hardly be any dispute that the onus of proving the first part i.e. that the person had bought goods/availed services for a consideration, rests on the complainant himself. The carve out clause, in the second part, is invoked by the service providers to exclude the complainants from availing benefits under the Act. The onus of proving that the person falls within the carve out must necessarily rest on the service provider and not the complainant. This is in sync with the general principle embodied in Section 101 and 102 of the Evidence Act that ‘one who pleads must prove’. Since it is always the service

p. 225 Copy page pinpoint

Shriram Chits (India) Private Limited Earlier Known as Shriram Chits (K) Pvt. Ltd v. Raghachand Associates

provider who pleads that the service was obtained for a commercial purpose, the onus of proving the same would have to be borne by it. Further, it cannot be forgotten that the Consumer Protection Act is a consumer-friendly and beneficial legislation intended to address grievances of consumers.6 Moreover, a negative burden cannot be placed on the complainant to show that the service available was not for a commercial purpose.

21Copy pinpoint21. Having held that the onus to prove that the service was obtained for a commercial purpose is on the service provider, we may clarify the standard of proof that has to be met in order to discharge the onus. The standard of proof has to be measured against a ‘preponderance of probabilities’. The test to determine whether service obtained qualified as a commercial purpose is no longer res integra in view of this Court’s decision in Lilavathi v. Kiritlal (supra). Para 19 sets out the principles on which it must be determined whether the onus of proving ‘commercial purpose’ has been properly discharged by the service provider.

22Copy pinpoint22. If and only if, the service provider discharges its onus of showing that the service was availed, in fact for a commercial purpose, does the onus shift back to the complainant to bring its case within the third part, i.e. the Explanation (a) to Section 2(7) – to show that the service was obtained exclusively for the purpose of earning its livelihood by means of self-employment.

23Copy pinpoint23. In this background, we must consider the plea of Sri Shailesh Madiyal that the complainant has not pleaded nor proved that the service was obtained for earning his livelihood through the means of self- employment. His argument relates to the third part of the definition of consumer. The question of inquiring into the third part will only arise if the service provider succeeds in crossing the second part by discharging its onus and proving that the service obtained was for a commercial purpose. Unless the service provider discharges its onus, the onus does not shift back to the complainant to show that the service obtained was exclusively for earning its livelihood through the means of self-employment. In the facts of this case, the OP has merely pleaded in its version that the service was obtained

p. 226 Copy page pinpoint

Digital Supreme Court Reports

for a commercial purpose. No evidence has been led to probabilise its case other than merely restating its claim on affidavit. It is now well too settled that a plea without proof and proof without plea is no evidence in the eyes of law.

24Copy pinpoint24. We do not wish to address ourselves to the merits of the issue since three Forums have concurred in their finding that there was proved deficiency of service.

25Copy pinpoint25. Accordingly, we dismiss the appeals.

Headnotes prepared by: Nidhi Jain Result of the case: Appeals dismissed.