Presumption of due service of notice U/S 138 NI Act _

in N Paraeswaran Unni vs G Kannan, has held that a reminder notice to the drawer of the cheque cannot be construed as an admission of non-service of the first notice by the complainant....


the apex court bench comprising Justice NV Ramana and Justice Prafulla C Pant observed that it is settled law that when a notice is sent by registered post and is returned with postal endorsement “refused” or “not available in the house” or “house locked” or “shop closed” or “addressee not in station”, due service has to be presumed....

Read more at: http://www.livelaw.in/cheque-bounce-reminder-notice-cant-construed-admission-non-service-first-notice-sc/

NCDRC _making false and incorrect statements and denial of each and every sentence without any justifiable ground _requires to be controlled

...................... It should be borne in mind  that Consumer Fora are required to decide the matter  speedily  and render equitable justice to the consumer.  The practice of making false and incorrect statements and the practice of denial of each and every sentence submitted by the claimant/complainant without any justifiable ground,  requires to be controlled.  For false affidavits or misleading statements in a pending proceedings deponents are required to be dealt appropriately by imposing punitive damages so that in future they or others may not indulge in such practice.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

CIRCUIT BENCH AT BANGALORE

in

REVISION PETITION No. 53 of  2006 

Reliance India Mobile Ltd.    Versus              Hari Chand Gupta Dated the   8^th   May,  2006

revision under Section 115 of C P C to be maintainable against an order passed under Section 37 of the Arbitration and Conciliation Act, 1996

......................................................................................................................................................................................................

21. In the case of ITI Ltd. (supra), the question which fell for consideration before the Supreme Court was regarding the maintainability of a revision under Section 115 of the Code of Civil Procedure, 1908 before the High Court against an order passed by a Civil Court in an appeal preferred under Section 37 of the Arbitration and Conciliation Act, 1996, specially, when a Second Appeal was statutorily barred under the Act and the Code of Civil Procedure was not specifically made applicable. Thus, the question was quite similar to the one referred to us. The Supreme Court opined in paragraph 10 as under:- 

"...It is true in the present Act application of the Code is not specifically provided for but what is to be noted is: is there an express prohibition against the application of the Code to a proceeding arising out of the Act before a Civil Court? We find no such specific exclusion of the Code in the present Act. When there is no express exclusion, we cannot by inference hold that the Code is not applicable." 

21.1 Rendering a concurring judgment in the said case D.M. Dharmadhikari, J of the Supreme Court observed in paragraph 19 thereof thus: 

"...when a special Act on matters governed by that Act confers a jurisdiction on an established court, as distinguished from a persona designata, without any words of limitation, then the ordinary incident of procedure of that court including right of appeal or revision against its decision is attracted..." 

21.2 Based on the aforesaid reasoning and following the judgments already referred earlier, the Supreme Court held a revision under Section 115 of C P C to be maintainable against an order passed under Section 37 of the Arbitration and Conciliation Act, 1996. 
.............................................................................................................................................................................................


HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH 

CRIMINAL REVISION No. 582 of 2016 

Dinesh Kumar Yadav 
Vs 
State Of U.P. & Anr. 

Hon'ble Dilip B. Bhosale, Chief Justice 
Hon'ble Aditya Nath Mittal, J. 
Hon'ble Rajan Roy, J. 
(Per Hon'ble Dilip B Bhosale, CJ) 

Date:27th October, 2016 

NCDRC :Meaning of "for the purpose of earning his livelihood"

6.       On perusal of the complaint it appears that it is not the case in which the complainants have hired or availed the services of the opposite parties exclusively for the purpose of earning livelihood by means of self-employment. The following allegations in the complaint support our view: -

“The Complainant No.l, offers various diagnostic services from his abovementioned clinic which was set up in the year 1994.The Complainant No.l offers the following services viz: Digital X-ray, Digital Sonography, Whole Body Colour Doppler Sonography, 2D Colour Echo Cardiography, Digital OPG, Digital Lateral Cephalogram, 3D & 4D Sonography and various other pathology services.

      The Complainant No.l has a staff of 10 people in the said clinic. The said staff also includes one associate Doctor. The said clinic of the Complainant No.l admeasured only 850 Sq.ft. and was insufficient for carrying on various activities listed above.  Further there was no facility in Goregaon (W) area which    provided for C.T. Scan and M.R.I. in the year 2003. The Complainant No.l being Radiologist saw this as an opportunity  to establish a state of the art Radiology Centre in Goregaon (West). For the said purpose complainant’s existing clinic was wholly insufficient as the set up for a C.T. Scan requires atleast 500 Sq.ft. area and set up for M.R.I. requires atleast 800 Sq.ft.”

7.       On reading of the above, it is clear that complainant No.1 is a Radiologist having a clinic with a staff of 10 persons including associate Doctors. Thus, it is clear that before hiring or availing the services of the opposite parties, complaint No.1 was running business of Radiologist with the assistance of associate Doctors and support staff. This clearly indicates that the complainant No.1 was not only earning livelihood before booking of the commercial premises but he was also providing employment to 10 persons. That being the case, the case of the complainants does not fall within the explanation to Section 2 (1) (d) of the Act. In aforesaid view, we are supported by the judgment of Hon’ble Supreme Court in the matter of Lakshmi Engineering Works vs. P.S. G. Industrial Institute (1995) 3 SCC 583. Relevant observation of Hon’ble Supreme Court reads as under: -

          “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 "consumer". If the commercial use is by the purchaser himself for the purpose of earing 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 emphasis 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. This is the necessary limitation flowing from the expressions "used by him", and "by means of self-employment" in the explanation. The ambiguity in the meaning of the words "for the purpose of earning his livelihood" is explained and clarified by the other two sets of words.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

CONSUMER CASE NO. 2121 OF 2016 DOD Dated : 23 Feb 2017 Source http://cms.nic.in/ncdrcusersWeb/GetJudgement.do?method=GetJudgement&caseidin=0%2F0%2FCC%2F2121%2F2016&dtofhearing=2017-02-23

6.     In order to get benefit of the Explanation, the complainants are required to prove that they had booked the units in question exclusively for the purpose of earning livelihood by way of self-employment.  The use of the word ‘earning livelihood’ makes it clear that the benefit of the Explanation can be extended only to a natural person and not to a distinct person.  The complainants admittedly are private limited companies.  Therefore, the restricted definition of “Commercial Purpose” given in the Explanation cannot be extended to them.  Otherwise also, in paragraph 1 of the respective complaints, it is categorically stated that the complainants companies at the time of booking of the units were already engaged in profitable business albeit in rented accommodation.  Therefore, it cannot be said that the commercial units which are subject matter of the complaints were booked exclusively for the purpose of earning livelihood by way of self-employment.  Thus, by no stretch of imagination, the benefit of Explanation can be extended to the complainants.

In

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

CONSUMER CASE NO. 1157 OF 2016

1. BLB LTD. & ANR. Through Its Director, Sh. Vikram Rathi 3rd, Floor, ECE House, Annexe-II, 28A, K.G. Marg, New Delhi - 110 001.	...........Complainant(s)
Versus
1. K.K. PROJECTS Through Its Partners, 6/3, LGF East Patel Nagar, New Delhi 2. Sri. Sharadamba Properties Ltd.,, Through Its Director, Sh. Vikram Rathi, 3rd Floor, ECE House, Annexe-II, 28A, K.G. Marg, New Delhi - 110 001. SOURCE : http://cms.nic.in/ncdrcusersWeb/GetJudgement.do?method=GetJudgement&caseidin=0%2F0%2FCC%2F1157%2F2016&dtofhearing=2016-08-05	...........Opp.Party(s) Dated : 05 Aug 2016

purchase of more than one flat not per se “commercial purpose”

".................. This Commission in Kavit Ahuja Versus Shipra Estate Ltd. & Jaikrishna Estate Developers Pvt. Ltd. & Ors., I (2016) CPJ 31 (NC) has laid down that merely because the Complainant has booked three flats, it cannot be said that it is for commercial purpose, and that the Complainant falls within the definition of “Consumer” within Section 2(1)(d) of the Act. The purchase can be said to be for a commercial purpose only when it is shown that the purchaser is engaged in the business of purchasing and selling houses/plots on a regular basis, solely with the view to make profit by sale of such houses. Without expressing final opinion, I am of the prima facie view that unless it is shown by bringing on record, some cogent material that a purchaser is engaged in the purchase and sale of flats/ houses on regular basis with a view to make profit by such sale, a mere purchase of more than one flat would not per se be sufficient to hold that the purchase was for “commercial purpose”. It is manifest from the order that after the pleadings and evidence has been brought on record, the fora would decide the question on its jurisdiction to entertain Complaints, before proceeding to deal with the rival stands of the claims made in the Complaints. This Commission also dealt with this aspect of purchase of more than one flat, whether it can be construed as commercial purpose or not in another decision dated 21.07.2015 in First Appeal No. 531 of 2015 betweenSai Everest Developers & Anr. Vs. Harbans Singh Kohli & Ors. The aforementioned law laid down by this commission establishes that onus to prove whether the purchase of houses is for commercial purpose or not shifts to the Opposite Party and in the instant case the State Commission has dismissed the Complaints in limine."

Source

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

FIRST APPEAL NO. 115 OF 2017

(Against the Order dated 07/09/2016 in Complaint No. 827/2016 of the State Commission Delhi) DOD- Dated : 27 Feb 2017