Haryana

Ambala

CC/72/2013

ZUKO ENGG. - Complainant(s)

Versus

ARISE MACHINES - Opp.Party(s)

HARJOT SINGH

14 Jun 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AMBALA

 

                                                          Complaint case no.        : 72 of 2013

                                                          Date of Institution         : 03.04.2013

                                                          Date of decision   : 14.06.2017

 

Zuko Engineers Office at G.T. Road, Model Town Crossing, Ambala City through its partner Subash Chandha.  

……. Complainant.

 

 

Arise Machines through its owner Mr. A.K. Jangid office, Address B-37, D.S. I.D.C. Ind. Complex, Kailian Puri, Delhi-110091.

 

….…. Respondents.

 

BEFORE:   SH. D.N. ARORA, PRESIDENT

                   SH. PUSHPENDER KUMAR, MEMBER         

                   MS. ANAMIKA GUPTA, MEMBER

                            

Present:       Sh. Harjot Singh, counsel for complainant.

                   Sh. Amit Sharma, counsel for Ops.

 

 

ORDER:

                   In nutshell, brief facts of the present complaint are that the complainant is running factory which manufactures door hardware’s like door closers, the complainant gave an order of machinery to the OP on 12.01.2012 when the OP visited the factory of the complainant in Ambala and in advance amount of Rs.51000/- in the shape of cheque NO.188044 dated 14.01.2012 was given to OP and after taking the advance promised to deliver the said machinery in the month of March or before 12.04.2012. Further submitted that in the month of February the OP demanded for some more advance so as to deliver the said order in time, thereafter the complainant gave an amount of Rs.50000/- in the shape of cheque No.188058 dated 16.02.2012. Thereafter, the complainant received an email on 15.05.2012 by the OP feeling sorry for not delivering the said order in time and demanded for money in advance and promised to deliver the said order before 15.05.2012. Further submitted that the complainant tried to contact the OP through phone calls and wrote emails requesting to refund the advance amount as the OP was not able to deliver the order but their was no response from OP of email by complainant dated 27.04.2012. Further submitted that despite several phone calls and emails by the complainant the OP did not deliver the order then on 16.08.2012 the complainant sent a registered post letter to the OP for delivering the order within 10 days or refunding the advance of Rs.2.0,1000 with interest failing to which legal action will be taken against the OP. Hence, the present complaint.

2.                 Upon Notice, OP appeared and filed written statement submitting that the complainant has failed to deposit remaining amount of Rs.1,79,000/- out of Rs.3,80,000/- to the answering OP before delivery of the machine despite many requests and as such the machine could not be supplied. More so, the OP has already disclosed to the complainant that he has taken parts of the machine in question from outside for Rs.1,35,000/- and as such the machine cannot be supplied in the absence of remaining amount; and the present complaint is filed just to put undue influence upon the answering OP. So, the OP has prayed for dismissal of the present complaint.

3                 To prove his version complainant tendered his affidavit as Annexure C-X along with documents as annexure C-1 to C-5 and close his evidence. Counsel for OP did not produce any evidence and same was closed by Court order v.o.d. 28.03.2017.

4.                We have heard counsels for the complainant and carefully gone through the case file. As per version of the complainant is that the complainant is running a factory which manufactures door hardware’s like door closers and the complainant gave an order of a machinery to the OP on 12.01.2012 and also gave amount of Rs.2.0,1000/- in advance but the OP did not give the delivery of machinery in time as per his promise. Now, the first and foremost question arise for consideration before this Forum is “Whether complainant falls under the purview of consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act?

5.                Admittedly, the complainant has given an order of a machinery for use of his factory, which is commercial in nature and we have gone through the definition of consumer as defined in Section 2(I) (d) (i) which reads as under:                “Consumer means any person who-

(i)                “buys any goods for a consideration which has been paid or promised or party paid and partly promised, or under any system of deferred payment and includes any use 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”.

(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 of any commercial purpose)”

                   For the reason recorded above, since the complainant does not fall under the definition of Consumer protection Act because complainant has purchased the machinery for commercial purpose. Hence, the present complaint is not maintainable in view of Section 2(1)(d)(i) of C.P.Act.. Therefore, there is no need to go on merits of the case. Accordingly, the complaint is dismissed with no order as to costs.  However, complainant is at liberty for filing of fresh complaint on same cause of action before appropriate Court/Forum within period of 60 days. The period during which the present complaint remained pending before this Forum is exempted for the purpose of limitation in terms of the judgment of Hon’ble Supreme Court of India in case titled as Luxmi Engineering Works Vs. PSG Industrial Institute reported in 1995(3) SCC Pg.583. Assistant of the Forum is directed to hand over original documents if any to the complainant after retaining photo copies of the same on file, on proper receipt and verification. Copy of the order be sent of parties concerned as per rule. File be consigned to record room after due compliance.

Announced on :14.06.2017                                           (D.N. ARORA)

                                                                                          PRESIDENT

 

 

            (PUSHPENDER KUMAR)

                                                                                               MEMBER

 

 

                                                                             (ANAMIKA GUPTA)

                                                                                                Member