Tripura

StateCommission

C.C 02/2013

Sri Amalendu Nath - Complainant(s)

Versus

Horipur Textiles Ltd. & 2 Others - Opp.Party(s)

R. Datta, R. Das, S. Saha

21 May 2015

ORDER

                                              

               HON’BLE MR.JUSTICE S.BAIDYA,

             PRESIDENT,

             STATE COMMISSION

 

                    MRS. SOBHANA DATTA,

             MEMBER,

                STATE COMMISSION.

 

 

                 22.06.15.  Sri Amalendu Nath,S/O Late Madhusudan Nath

                 Prop. Of; MAS LATEX INDUSTRIES,

                                 T.I.D.C. Industrial Growth Centre, Rubber Park,

                   P.O- & P.S. Bodhjungnagar, Agartala,

                                        District-West Tripuras.

                                 ….    ….    ….    Complainant.

 

Vs.

1. Gouripur Textiles Pvt. Ltd.

389/4,Jessore Road, Kolkata-700055.

Represented by Sri Tarun Kanti Saha & Sri Tapas Saha.

2. Sri Tarun Kanti Saha, S/O Late Debabrata Saha

The Managing Director of Gouripur Textiles Pvt. Ltd.

Resident of; P-76, Kalindi, Kolkata-700089.

3. Sri Tapas Saha, S/O Sri Tarun Kanti Saha

The Director of Gouripur Textiles Pvt. Ltd.

Resident of; P-76, Kalindi, Kolkata-700089.

       

                                             ….    ….    ….    Opposite parties.

 

                             

        This order has arisen out of the hearing of the three applications namely application of the complainant seeking the service of a handwriting expert, the application of the opposite parties regarding the question of maintainability of this case before this Consumer Fora and the application of the complainant seeking initiating of a criminal proceeding against the D.W.1 (O.P. No-2) under Section 340 of the Criminal Procedure Code. Before proceeding with the decision of this Commission on the above mentioned three applications, we find it appropriate to state the brief fact of the case of the complainant as described in the complaint filed under Section 12(1) of the Consumer Protection Act, 1986.

        It transpires that the complaint was filed on 04.09.2013 by Sri Amalendu Nath, Proprietor of MAS LATEX INDUSTRIES under Section 12(1) of the Consumer Protection Act, 1986 against the three opposite parties namely (1) Gouripur Textiles Pvt. Ltd. (2) Sri Tarun Kanti Saha, Managing Director of Gouripur Textiles Pvt. Ltd. (3) Sri Tapas Saha, the Director of Gouripur Textiles Pvt. Ltd. seeking an adequate compensation of Rs.75,94,357/- only in all with interest in favour of the complainant as compensation payable by the O.Ps for violation of the Offer dated 20.06.2011 (Annexure-A) for causing huge loss to the complainant and also for deficiency and negligence in service and causing unnecessary harassment to the complainant.

        The case of the complainant as narrated in the complaint, in brief, is that the complainant is a businessman and the proprietor of MAS LATEX INDUSTRIES who has been setting up a plant for Heat Resistance Rubber Thread Unit, at Rubber Park, T.I.D.C. Industrial Growth Centre, Bodhjunnagar, Agartala, Tripura West by obtaining two acres of land from T.I.D.C. Ltd. by way of lease for a period of 30 years and paying Rs.12,000/- per month as lease rent w.e.f. January, 2011 and for that purpose he took a loan amounting to Rupees two crore from the Bank of India, Vivekananda Road Branch, Kolkata.

        The O.P. Gouripur Textiles Pvt. Ltd. represented by the O.P. No.2 and 3 located at 389/4, Jessore Road, Kolkata-700055, is a private Ltd. company and deals with plant and machineries, manufacture and assemble the equipments and supplied those equipments to the customer/dealer/different industries as like the complainant.

        The complainant in need of complete plant for manufacturing heat resistance Rubber thread asked for a quotation for the said plant from the O.Ps and the O.P. No.2 by a letter dated 20.06.2011 presented an offer consisting of a list of 23 numbers of machineries and equipments on condition to pay 50% of the total amount as advance and the balance against delivery with the assurance that the whole equipments would be delivered within 180 days from the date of receipt of the order.

        On receipt of the said offer dated 20.06.2011, the complainant vide letter dated 24.06.2011 accepted the offer of the O.P. No.2 and accordingly, the complainant sent Rs.20,50,000/- out of Rs.50,00,000/- to the O.Ps within 22.07.2011 and thereafter, the complainant paid the balance amount of Rs.29,50,000/- out of 50% of the total amount within 09.08.2011 and confirmed the order for complete plant, but the O.Ps failed to deliver the said machineries and equipments within the month of February, 2012 and thus, violated the condition of the agreement arising out of offer dated 20.06.2011.

        The O.Ps, after the expiry of the said agreed period of 180 days, sent machineries in about 336 days w.e.f. month of February, 2012 to 07.01.2013 for Rs.81,60,000/- and thereafter stopped the delivery of other machineries and equipments without any reason. The opposite parties failed to fulfil by supplying the required equipments and machineries, in spite of repeated correspondences and not only so, the O.Ps by way of practicing fraud upon the complainant supplied unmatched, old and used machineries and equipments and ultimately finding no alternative, the complainant lodged the complaint before this Commission.

        It transpires that after the lodging of the complaint before this Commission, the order to issue notice upon the O.Ps/respondents was passed on 26.10.2013 by then Bench of this Commission, although no formal order was passed regarding the admission of the complaint for adjudication before issuance of the notice.

        It also transpires that pursuant to the notice the O.P. No.1 and 2 appeared through their engaged counsel on 05.12.2013 and the written objection was filed on 18.01.2014 and thereafter, the case was fixed for recording evidence on the complainant’s side and the evidence on the complainant’s side was closed on 23.04.2014 and thereafter, the case was fixed for recording evidence on the side of the O.Ps and the deposition of the DW1, Tarun Kanti Saha (O.P. No.2) was completed on 02.08.2014. It further transpires that on that date i.e. on 02.08.2014 the complainant filed an application praying for availing the service of a handwriting expert for comparing the handwriting and signatures as appearing in the three Kachcha Money Receipts dated 07.09.2010, 19.10.2010 and 14.11.2010 alleged to have been made by the O.P. No.2 at the cost of the complainant and as prayed for the case was fixed on 23.08.2014 for hearing the said application dated 02.08.2014 giving an opportunity to the O.Ps to file written objection against that application.

        It should be mentioned here that the evidence on the side of the O.Ps was not closed. It is found necessary to note that the opposite parties in entering to this case did not file any specific application challenging the maintainability of this case before this Consumer Fora, but the opposite parties filed written objection on 18.01.2014 simply raising a formal plea of non-maintainability of this case under the C.P.Act without pleading anything as to why this case is not maintainable before this Commission.

        The learned counsel for the O.Ps submitted a written argument supported by a number of copies of judgments on 24.12.2014 on which the application dated 02.08.2014 filed by the complainant and the written objection dated 20.09.2014 filed by the O.Ps were taken up for hearing. It transpires that on that date, the learned counsels who was earlier engaged to defend the O.Ps has been changed and the newly engaged counsel for the O.Ps entered in this case. It transpires that at the time of hearing, it has come to our notice that the written objection so filed has contained a statement alleging wrongly recording of the deposition of DW1 and when this Bench has pointed out about the said statement, the learned counsel for the O.Ps submitted that it has been typed wrongly due to some misunderstanding and for that he tendered unconditional apology in respect of such statement typed wrongly in the written objection and at that stage, the learned counsel for the O.Ps also submitted that they would not press the said written objection intending to file a fresh written objection against the application of the complainant filed for seeking the service of handwriting expert. It also transpires that at that time, the learned counsel for the O.Ps submitted that they would also raise the question of maintainability of this case in their written objection. It also appears that after hearing the learned counsels of both sides, the O.Ps were allowed to ‘Not Press’ their written objection and accordingly, the learned counsels for the O.Ps made an endorsement “not Pressed” on the said written objection dated 20.09.2014 and as such, it was rejected being “not pressed” vide order dated 24.12.2014.

        It is also found necessary to mention that when on 20.12.2014 the O.Ps were allowed to not Press their written objection dated 20.09.2014, at that time such move of the learned counsels for the O.Ps was not opposed by the learned counsel for the complainant as appearing from the order dated 24.12.2014.

        It transpires that the O.Ps on 09.01.2015 submitted two separate applications of which one in the form of written objection was against the complainant’s application for hand writing expert and other was regarding the question of maintainability of the case. It also appears from the order dated 07.02.2015 that the complainant filed written objection on 27.01.2015 against the application of the O.Ps on the question of maintainability of the case and also the complainant filed another application on 27.01.2015 supported by an affidavit praying for passing an order to initiate a criminal proceeding under Section 340 of the Cr.P.C. against the O.P. No.2(DW1) for his deliberate and willful false statement made on oath before this Commission and against that application, the O.P. No.2 also filed written objection.

        It transpires from the record that this Commission vide Order dated 07.02.2015 has decided to hear all the three matters namely application for availing service of a handwriting expert, application on the question of maintainability of the case and the application seeking to initiate a criminal proceeding under Section 340 of the Cr.P.C. against the O.P. No.2 together and ultimately the hearing on the above mentioned three matters was concluded on 20.05.2015.

        The learned counsel for the complainant referring to the application dated 02.08.2014 filed for the complainant submitted that the O.P. No.2 namely Tarun Kanti Saha (DW1) during his deposition deliberately and wilfully denied on oath his handwriting and signatures appearing on three Kachcha money receipts dated 07.09.2010, 19.10.2010 and 14.11.2010 (exhibit 1/22, 1/23 and 1/24 respectively) as his own and for that the complainant filed the application for sending those three Kachcha money receipts to a handwriting expert for ascertaining as to whether the handwriting and signatures appearing on those to three money receipts are of the O.P. No.2 or not.

        On the other hand, the learned counsel for the O.P. No.2 has opposed the application dated 02.08.2014 of the complainant by filing a written objection supported by an affidavit stating that there is no need to send those three money receipts to any handwriting expert on the grounds that the O.P. No.2 is admitting his signatures on those three money receipts and also on the ground that the O.P. No.2 as the Director has been running another business of hosiery, knitted fabrics under the name and style of M/S Kalpataru Impex Pvt.Ltd. with this complainant having business relation, the money under those three exhibits was paid against the supply of the hosiery knitted fabrics and also on the ground that the said three Kachcha money receipts (3 exhibits) have got no connection with the present business transaction between the complainant and the O.Ps. It is further stated in the written objection that on the date of cross-examination on 10.07.2014 the O.P. No.2 as DW1 not having understood clearly the question put to him by the Ld. Lawyer of the petitioner/complainant and due to his physical ailments he could not understand it and hence denied incorrectly regarding those signatures. The learned counsel for the O.P. No.2 submitted before us that the DW1 during his cross-examination was put the question to answer regarding the handwriting and signatures of the said three Kachcha money receipts, but there is no whisper concerning those three Kachcha money receipts in the four corners of the complaint. He also submitted that the learned counsel for the complainant has put the question to the O.P. No.2 as DW1 during his cross-examination, although the pleadings of the complainant made in the complaint are totally silent in this regard and as such those three Kachcha money receipts (three exhibits) being beyond pleadings are legally inadmissible in evidence and therefore, the question of sending those three Kachcha money receipts, which are legally inadmissible in evidence, for availing of the service of a handwriting expert does not arise at all and as such, the application dated 02.08.2014 of the complainant should be rejected outright.

        The learned counsel for the complainant referring to the application of the complainant dated 27.01.2015 submitted that the O.P. No.2 as DW1 during his cross-examination has made a deliberate and wilful false statement on oath before this Commission on 10.07.2014 concerning the handwriting and signatures appearing on the three money receipts dated 07.09.2010, 10.10.2010 and 14.11.2010 (Exhibits 1/22,1/23 and 1/24 respectively). He also submitted that as the O.P. No.2 has made such a false statement on oath before this Commission, a criminal proceeding against the O.P. No.2 requires to be initiated and for this, the complainant filed the application dated 27.01.2015.

        On the other hand, the learned counsel for the O.P. No.2 has opposed the prayer of the complainant made in application dated 27.01.2015 by filing a written objection stating inter alia, that due to ailing condition and being failed to understand the question put to him by the learned counsel for the complainant, the DW1 has made such an incorrect statement. He also submitted that thereafter coming to know of his said incorrect statement, he filed the written objection supported by an affidavit against the application dated 02.08.2014 of the complainant admitting that the signatures appearing on the said three Kachcha money receipts are of his own, but due to physical ailing condition and being failed to understand the question, he made such an incorrect statement. The learned counsel for the O.P. No.2 referring to the decision of the Hon’ble Supreme Court reported in (2001) 9 Supreme Court cases 742 further submitted that the conditions require to be fulfilled for initiating a criminal proceeding under Section 340 of the Cr.P.C., 1973 have not been satisfied and as such, the said application of the complainant dated 27.01.2015 having no merit deserves to be rejected.

        The learned counsel for the O.Ps referring to the application dated 09.01.2015 filed by the O.Ps regarding the legal question on maintainability of the present case under the provision of the Consumer Protection Act, 1986 submitted that the complainant lodged the complaint before this Consumer Fora under the Consumer Protection Act, 1986 alleging negligence and deficiency in service and unfair trade practice, but the complaint petition lodged by the complainant being relating to the out and out ‘Commercial purpose’, it is not legally maintainable under the C.P.Act. He also submitted that the complainant has alleged ‘Fraud’ in second part of para-14 of the complaint which ousts the jurisdiction of this Commission. He also submitted that the complainant has made the transaction involved in this case with the O.Ps for the purpose of earning profit as narrated in para-3 of the complaint and as such, it cannot be said that the complainant made the said transaction for the purpose of earning his livelihood by means of self-employment. He also submitted that prior to the present transaction involved in the instant case, the complainant had other business relation with the O.P. No.2 who is a Director of a sister concerned name and style Kalpataru Impex Pvt. Ltd. dealing with supply of hosiery knitted fabrics. He also submitted that the complainant Amalendu Nath has claimed himself in the complaint that he is a businessman. He also submitted that in view of the above position, it cannot be said under any stretch of imagination that the complainant is a consumer as provided under Section 2(1)(d) of the Consumer Protection Act, 1986. He further submitted that when the complainant does not fall within the definition of ‘consumer’ as provided under the C.P.Act, the complaint lodged before this Hon’ble Commission alleging negligence and deficiency in service seeking an adequate compensation is not legally maintainable. He also submitted that when the question of maintainability hits at the very root of jurisdiction of the Consumer Fora and if the complaint lodged before the Consumer Fora is found not legally maintainable under the C.P.Act, the two other applications of the complainant dated 02.08.2014 and 27.01.2015 are automatically liable to be rejected and the complaint being not maintainable in law should be dismissed.

        On the other hand, the learned counsel for the complainant opposed the application of the O.ps regarding the question of maintainability of the case by filing written objection dated 27.01.2015 and submitted that the question of maintainability of a proceeding is required to be raised at the earliest opportunity preferably by a written application before submitting the written objection/statement, but in the instant case, O.Ps did nothing in this regard, rather the O.Ps filed written objection against the complaint by making an omnibus statement in para-1 to the effect that the suit is not maintainable it its present form and equity. He also submitted that till the completion of the cross-examination of the DW1, the O.Ps submitted no written application raising specifically the question of maintainability of the complaint before this Hon’ble Commission under the C.P.Act, 1986. He also submitted that it is only on 09.01.2015, the O.P. No.2 has filed a specific application at a belated stage challenging the maintainability of this case before this Commission. He also submitted that as the application regarding the question of maintainability of this case has not been raised at the earliest opportunity, the said application of the O.P. No.2 dated 09.01.2015 deserves to be rejected. He also submitted that the O.Ps. in their written version did not specifically raise any question regarding the territorial jurisdiction of this Hon’ble Commission, now the question so raised at this stage regarding the territorial jurisdiction of this Hon’ble Commission as alleged in the application of the O.P. No.2 dated 09.01.2015 regarding the maintainability of the case is not sustainable in the eye of law.

        The learned counsel for the complainant then submitted that the Hon’ble National Commission in the decision in First Appeal No.472 of 1993 - decided on 14.03.1996 in between Hindustan Motor LTD (appellant) versus Narayan Pundalik Tamankar & others (respondents) has been pleased to hold that a person purchasing a machine or other item of goods as a means of self-employment for earning his livelihood is a consumer entitled to seek relief under the C.P.Act as the complainant was not purchasing the machine and equipments for the purpose of resale. He finally submitted that the O.P. No.2 has filed the application dated 09.01.2015 raising the question of maintainability of this case before the Hon’ble Commission with an ulterior motive and having no lawful ground, the said application of the O.P. No.2 deserves to be rejected.

        The learned counsels for the O.Ps in reply to the submission made by the learned counsel for the complainant submitted that the question of jurisdiction regarding maintainability of the case under the C.P.Act strikes at the very root of the proceeding and that question of maintainability of the case being a legal question can be raised at any stage of the proceeding and as such, the submission of the learned counsel for the complainant to the effect that as the O.P. No.2 has raised the question of maintainability of the case at the belated stage, it deserves to be rejected being not tenable in the eye of law.

        At the outset of our discussions over the submissions and counter-submissions of the learned counsels of both sides concerning the three matters already mentioned, we like to state that the complainant lodged the complaint under Section 12(1) of the C.P.Act, 1986 before this Commission. But the Section 12 of the C.P.Act provides for lodging the complaint before the District Consumer Disputes Redressal Forum (in short District Forum). The C.P.Act provides that a complaint can be lodged before the State Consumer Disputes Redressal Commission (in short State Commission) under Section 17 of the said Act, but not under Section 12 of the Act. However, the quoting of a wrong Section in the complaint, according to us, does not make the complaint of the complainant invalid one.

        Admittedly, the O.P. No.2 as DW1 stated in his cross-examination when the question put to him by the learned counsel for the complainant as to whether the handwriting and the signatures appearing on the three Kachcha money receipts dated 07.09.2010, 19.10.2010 and 14.11.2010 marked as exhibits 1/22, 1/23 and 1/24 respectively are of his own handwriting and signatures to which the DW1 denied the same to be of his own handwriting and signatures. It transpires that DW1 made this statement before this Commission on oath in course of his cross-examination on 10.07.2014. But the O.P.W.2 (DW1) in his written objection filed supported by an affidavit on 09.01.2015 against the application of the complainant seeking the service of a handwriting expert clearly admitted that the signatures appeared on those three Kachcha money receipts are of his own signatures. The complainant filed the application dated 02.08.2014 praying for availing the service of a handwriting expert when the DW1 (O.P. No.2) denied his handwriting and signatures in course of his cross-examination. So, in view of the above admission of the O.P. No.2 made concerning his signatures appearing on the said three money receipts subsequently, the purpose of availing the service of a handwriting expert has become redundant and useless and as such the said application of the complainant dated 02.08.2014 having no merit at this stage stands rejected.

        As regards the prayer of the complainant for initiation of a criminal proceeding for giving alleged false evidence by the DW1 during the time of his cross-examination, we find that the O.P. No.2 in his written objection averred that on 10.07.2014 he was suffering due to old age and infirmity coupled with severe waist pain. It is also averred that on 10.07.2014 not having understood clearly the question put to him by the learned counsel for the complainant and also due to physical ailments being failed to understand it, he denied incorrectly those signatures. It is also averred that coming to know about the incorrect statement subsequently, he admitted those signatures as appearing in the three Kachcha money receipts as his own signatures.

        We have gone through the principle of law laid down by the Hon’ble Supreme Court of India in the decision reported in (2001) 9 Supreme Court cases 742 wherefrom, it appears that the Hon’ble Apex Court has been pleased to hold that there are two conditions on fulfillment of which a complaint can be filed against the person who has given a false affidavit or evidence in a proceeding before a Court. Firstly, that a person has given a false affidavit in a proceeding before the Court and secondly, in the opinion of the Court, it is expedient in the interest of justice to make an enquiry against such a person in relation to the offence committed by him.

        In the instant case, admittedly, the O.P. No.2 as DW1 is found made an incorrect statement on oath on 10.07.2014 before this Commission concerning those three Kachcha money receipts during his cross-examination. But we find that the complaint lodged by the complainant is completely silent in this regard. It is true that the evidence including documentary evidence does not require to be pleaded in the complaint, but the fact in that regard must be pleaded specifically in the complaint otherwise such evidence will be legally inadmissible in evidence being the said fact beyond pleadings of the complaint. When the complaint is totally silent concerning the said three money receipts, the said three Kachcha money receipts dated 07.09.2010, 19.10.2010 and 14.11.2010 marked as exhibits 1/22, 1/23 and 1/24 respectively are found not legally admissible in evidence being beyond the pleading.

        Going through the complaint and the examination-in-chief on affidavit of the complainant as PW1, we find that there is no whisper regarding the existence of the said three Kachcha money receipts. It goes to show that the complainant cleverly has included those three Kachcha money receipts in the same bunch along with other documents while tendering the same during the time of his deposition before this Commission, although he has made out no such case in the complaint concerning the existence of those three Kachcha money receipts. The DW1 all on a sudden has been put question on those money receipts and DW1 replied in negative. In this regard, submission of the learned counsel for the O.P. No.2 to the effect that as there involved no payment by any Kachcha money receipts concerning the transaction of the instant case, the O.P. No.2 could not understand about the said three Kachcha money receipts and replied in the negative concerning the signatures appearing on those receipts, is found believable being probable. So it cannot be said under any stretch of imagination that the DW1(O.P. No.2) deliberately and wilfully made a false statement in his cross-examination, otherwise, the O.P. No.2 in para-7 of his written objection supported by an affidavit on 09.01.2015 against the application seeking the service of a handwriting expert would not admit the signatures appearing on those three Kachcha money receipts as his own signatures before submission of the application dated 27.01.2015 by the complainant for initiation of criminal proceeding against the O.P. No.2. In that view of the matter, we find no cogent ground to pass any order for making any enquiry to initiate any criminal proceeding under Section 340 of the Cr.P.C. against the O.P. No.2. Therefore, we are of the view that the application dated 27.01.2015 filed by the complainant for initiation of a criminal proceeding against the O.P. No-2 is found without any merit and as such, it also stands rejected.

        The next point is regarding the question of maintainability of this case under the C.P.Act, 1986 before this Consumer Fora. The O.P. No.2 by filing an application dated 09.01.2015 has raised a legal question on the maintainability of the present case on four specific grounds. As per case of the O.P. No.2, it is stated in the application that no part of any cause of action did arise in any part of territorial jurisdiction of this Hon’ble Commission. Going through the record, we find that the Rubber plant would be erected in Agartala, Tripura. As the erection of the Rubber plant is a part of the transaction between the parties, in our view, a part of the cause of action arose within the territorial jurisdiction of this Commission. So, we find no substance on the question of territorial jurisdiction as raised by the O.P. No.2. Another ground has been taken on the plea that the complainant Amalendu Nath has no locus standi to lodge the complaint inasmuch as the transaction has been made with M/S MAS LATEX Industries which has not been made as complainant in this case. It transpires that the complaint has been lodged by the complainant Amalendu Nath being the Proprietor of M/S MAS LATEX INDUSTRIES, Bodhjungnagar. When the complainant Amalendu Nath as proprietor lodged the complaint, we find nothing serious anomaly in lodging the complaint in such a manner. So, we find no substance in the second ground as alleged in the maintainability of the case.

        The third ground of non-maintainability of the case as alleged is that the complainant has averred in the complaint that the O.P. No.2 practiced ‘fraud’ upon the complainant by way of supplying some unmatched, old and used machineries and equipments. It is stated by the learned counsel for the O.Ps that where there involves the question of practising fraud, it is beyond the power of adjudication by the Consumer Fora and as such, the complaint lodged by the complainant containing the elements of ‘fraud’ as provided under Section 17 of the Indian Contract Act, 1872 becomes non-maintainable under the C.P.Act. Going through the Para-14 and 15 of the complaint we find that the complainant has averred that the opposite parties have practised fraud upon him. We have meticulously considered the same and found that at best it falls within the purview of the breach of agreement for doing so as alleged, if it is proved, but in no way it can be said that the fraud has been practised upon the complainant. Be that as it may, we find no element of fraud in the complaint in the true sense of the term. So, we find no merit as regards the third ground taken in the maintainability application dated 09.01.2015 filed by the O.P. No.2.  

        The next and fourth ground, according to the O.P. No.2, is that the instant complaint case is not maintainable before this Consumer Fora as the complainant is not a consumer as provided under Section 2(1)(d) of the C.P.Act, 1986. In fact, the fate of this case before us practically depends upon the decision on the point of maintainability of this case under the C.P.Act, 1986.

        The learned counsel for the complainant referring to a decision of the Hon’ble National Commission passed in first appeal No.472 of 1993 decided on 14.03.1996 submitted that the person purchasing a machine or vehicle as a means of self-employment for earning livelihood is a consumer entitled to seek relief under the C.P.Act. He also submitted that as the complainant by way of purchase of the machineries and equipments has become a consumer, the complaint lodged by the complainant under the C.P.Act is legally maintainable.

        It has been held as referred to by the learned counsel for the O.Ps in the decision of the Hon’ble Supreme Court of India in Civil Appeal No.1957 of 2003 in between Cantonment Board and another(appellants) Vs. Church of North India (respondent) decided on 13.05.2011 that a point about the jurisdiction can be raised even before the Supreme Court, even if, it was not raised any time earlier. It also transpires that the question of jurisdiction is a question of law which can be raised at any stage of the proceeding. So, the submission of the learned counsel for the complainant to the effect that the O.P. has raised the question of maintainability of the case at the  belated stage, does not hold good debarring the O.Ps to raise the question of maintainability of the case on the point of jurisdiction at the stage when the application dated 09.01.2015 is filed by the O.P. No.2. So, the submission of the learned counsel for the complainant in this regard is not acceptable.

        This Commission has to consider whether the complainant is at all a consumer as provided under Section 2(1)(d) of the C.P.Act, 1986 for lodging a complaint under that Act before the Consumer Fora. In this regard, we find it appropriate to reproduce the definition of ‘consumer’ as provided under Section 2(1)(d) of the said Act which is as follows :-

        (d) “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 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 for any commercial purpose.

        Explanation-For the purposes of this clause “Commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment.

        On careful reading of Section 2(1)(d), it is evident that the term ‘consumer’ for the purpose of this Act does not include a person who obtains goods in question for resale or for any commercial purpose. However, the explanation to the provision makes an exception to the effect that commercial purpose does not include use of the goods bought by the buyer exclusively for the purpose of earning his livelihood by means of self-employment. Now, we have to see whether the purchase of the machineries and equipments, however, any defect therein as alleged, by the complainant from the O.Ps was for commercial purpose or whether it can be protected under explanation to Section 2(1)(d) of the C.P.Act.

        Admittedly, the complainant purchased those machineries and equipments not for resale. Going through the four corners of the pleadings of the complainant made out in the complaint, we find that the complainant nowhere stated as to how he has filed the complaint claiming himself a consumer within the purview of Section 2(1)(d) of the C.P.Act before this Consumer Fora. It means the complainant stated nothing in the complaint that he is a consumer under the C.P.Act to maintain such complaint before this Consumer Fora . The first part of the complaint discloses that the complainant is a businessman. The affidavit attached to the complaint also indicates that he is a businessman by profession. The complainant in para-1 of the complaint has categorically averred that for the purpose of said Rubber plant he took a huge loan amounting to Rupees two crore from the Bank of India, Vivekananda Road Branch, Kolkata. The complainant Amalendu Nath as PW1 at the beginning of his cross-examination clearly admitted that he is a businessman and he is doing his business since 2000 and he has also other business of food and other items and export business and he is an income tax payee. The complainant has averred in sub-para 3 of para-9 of the complaint that he was all along ready to take the delivery of the machineries and equipments, as because he was in hurried manner to start production to earn profit. It goes to show that the purpose of the complainant to purchase the machineries and equipments from the O.Ps was out and out commercial in nature and his object was to make profit hurriedly from the said purchase. Furthermore, it has been clearly established that the complainant was already in the business at least since 2000 and his object was to make more profit by purchasing the machineries and equipments from the O.Ps. So, it cannot be said under any stretch of imagination that the complainant has purchased those machineries and equipments as a means of self-employment for earning his livelihood and as such the complaint does not fall within the purview of the definition of ‘consumer’ as provided under Section 2(1)(d) of the C.P.Act, 1986 to maintain a complaint under the said Act before this Consumer Fora. In this regard, we find that the principle of law enunciated by the Hon’ble National Commission reported in 1(2013) CPJ 702 (NC) and 1(2014) CPJ 146 (NC) as referred by the learned counsel for the O.Ps can be relied on. So, the case law referred by the learned counsel for the complainant mentioned earlier is found no helpful to the complainant in the facts and circumstances of the instant case. As the complainant is not a ‘consumer’ as provided under Section 2(1)(d) of the C.P.Act, 1986, we are of the view that the complaint lodged by him before this Commission is not legally maintainable and accordingly, the complaint lodged by the complainant stands dismissed being not maintainable before this Consumer Fora under the C.P.Act, 1986.

        In view of the above, the application of the complainant dated 02.08.2014 regarding service of a handwriting expert and another application of the complainant dated 27.01.2015 regarding for initiation of a criminal proceeding against the O.P. No.2 and the application of the O.P. No.2 dated 09.01.2015 regarding the question of maintainability of this case before this Consumer Fora are, thus, disposed of.