NCDRC

NCDRC

FA/777/2007

EXECUTIVE ENGINEER (ELECTRICAL) CENTRAL ELECTRICITY SUPPLY UTILITY OF ORISSA (ORMERLY CESCO), CUTACK - Complainant(s)

Versus

COSBOARD INDUSTRIES LIMITED - Opp.Party(s)

MR. RAJ KUMAR MEHTA

22 Nov 2011

ORDER

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
 
APPEAL NO. 14 OF 2004
 
(Against the Order dated 09/12/2003 in Complaint No. 218/2003 of the State Commission Orissa)
1. CENTRAL ELECTRICITY SUPPLY CO. OF ORISSA LTD. (CESCO) & ANR.
REGISTERED OFFICE AT IDCO TOWERS
2ND FLOOR JANPATH BHUBANESWAR
REP. BY THE CHIEF EXECUTIVE OFFICER
...........Appellant(s)
Versus 
1. COSBOARD INDUSTRIES LTD.
AT - NEW INDUSTRIAL ESTATE
PHASE - II JAGATPUR UTTACK - 754 021
REP. BY ITS GENERAL MANAGER
...........Respondent(s)
APPEAL NO. 15 OF 2004
 
(Against the Order dated 09/12/2003 in Complaint No. 245/2003 of the State Commission Orissa)
1. CENTRAL ELECTRICITY SUPPLY CO. OF ORISSA LTD. (CESCO) & ANR.
REGISTERED OFFICE AT IDCO TOWERS
2ND FLOOR JANPATH BHUBANESWAR
REP. BY THE CHIEF EXECUTIVE OFFICER
...........Appellant(s)
Versus 
1. COSBOARD INDUSTRIES LTD.
AT NEW INDUSTRIAL ESTATE
PHASE - II JAGATPUR CUTTACK - 754 021
REP. BY ITS GENERAL MANAGER
...........Respondent(s)
APPEAL NO. 777 OF 2007
 
(Against the Order dated 26/11/2007 in Complaint No. 227/2003 of the State Commission Orissa)
1. EXECUTIVE ENGINEER (ELECTRICAL) CENTRAL ELECTRICITY SUPPLY UTILITY OF ORISSA (ORMERLY CESCO), CUTACK
CENTRAL ELECTRICITY SUPPLY UTILITY OF ORISSA (FORMERLY CESCO),
CUTTACK,
ORISSA & OTHERS
...........Appellant(s)
Versus 
1. COSBOARD INDUSTRIES LIMITED
CUTTACK,
ORISSA
-
...........Respondent(s)

BEFORE: 
 HON'BLE MR. JUSTICE V. R. KINGONKAR, PRESIDING MEMBER
 HON'BLE MR. VINAY KUMAR, MEMBER

For the Appellant :MR. R.K. MEHTA
For the Respondent :
Mr. R.S. Biswas & MR. S. Pattjoshi, Advocate

Dated : 22 Nov 2011
ORDER

All these three appeals are being disposed of together in view of single legal question involved and for the reason that the same is being treated as a preliminary objection on the jurisdictional issue. The three complaints which were filed on 25.9.2003, 20.10.2003 and 30.9.2003 by the concerned complainants involved in these appeals were obviously filed after the amendment of Consumer Protection Act, 1986. The amended provision was brought on the book w.e.f. 15.3.2003. The legal question involved is whether due to the amendment which came into force on 15.3.2003, the State Commission had the jurisdiction to entertain the complaint or had no jurisdiction in view of the fact that the cause of action had arisen prior to the amended provisions. The three complaints stated above emanate from commercial transactions. There is no dispute about the fact that the service provider is made liable due to deficiency in service even in respect of the commercial transactions between the parties after the amendment of Section 2(i)(d)(ii) of the Consumer Protection Act, 1986. The amendment may be reproduced for ready reference as follows: d) "consumer" means any person who (i) XXXXX (ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promsed, 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 purposes; It is explicit that the amendment of sub-clause (ii) came into force w.e.f. 15.3.2003. It is but natural that the question as to whether the services availed by a person for any commercial purposes prior to such amendment would fall within the domain of Consumer Protection Act, 1986, is required to be addressed. Perusal of the order dated 8.4.2011 rendered by the 3-Member Bench of this Commission in OP NO.286 of 2000, OP No.300 of 2000 and OP No. 315 of 2000 reveals that the view taken in earlier case of Premier Automobiles Ltd. Vs. Dr. Manoj Ramachandran & Ors. Revision Petition Nos. 440, 401, 402/1993 decided on 21.12.1993 I (1994) CPJ 88 (NC) was considered. The 3-Member Bench of this Commission held that the amendments brought about by the Act 62 of 2002 will have to be treated as prospective in nature. Needless to say, the complaints which were filed in context of the above appeals are covered by the amended provision which is of prospective nature. Learned Counsel for the original complainant submits that cause of action had arisen prior to the amendment and was continuous till filing of the complaints. He further submits that the complaints could be entertained, even though, there was no such amendment on the book. We find it difficult to consider such argument when the 3-Member Bench of this Commission has considered the amendment is prospective in nature. So, if the cause of action is of continuous nature and the complainants have spent time in pursuing the remedy before the wrong Forum, they may demonstrate that the delay can be condoned in view of Section 14 of the Limitation Act. Having regard to the legal position discussed hereinabove, we allow all the above appeals and set aside the impugned orders. We make it clear that no opinion is expressed on merits in either of the appeals. We further make it clear that the complainants will be at liberty to take appropriate legal remedy as is available under the law and the time spent so far also may be explained for the purpose of condonation of delay. We, however, refrain ourselves from saying on merits insofar as the questions required to be determined or the issue of delay is concerned. The appeals are accordingly disposed of with no order as to costs.

 
......................J
V. R. KINGONKAR
PRESIDING MEMBER
......................
VINAY KUMAR
MEMBER

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