BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

              Complaint Case No.    : 218 of 2010

              Date of Institution       : 04.06.2010

              Date of Decision         : 15.05.2015

M/s S.S. Associates Engineers and Contractors through its Partner Sh. Sandeep Bansal  having its registered office at 8986/5 Naya Bans, Ambala City.

                                                                                                                                                               ……Complainant.

Versus

K.V. Engineering Works through its authorized signatory/proprietor/Partner, Sikhera

Road, Industrial Area, Modi Nagar, 201204 (Ghaziabad) U.P.

                                                                                                                                                   ……Opposite Party.

Complaint Under Section 12 of the Consumer Protection Act.

CORAM:        SH. A.K. SARDANA, PRESIDENT.

                        SH. S.C. SHARMA, MEMBER.                       

Present:          Sh. Navneet Gupta, Adv. counsel for complainant.

                        OP exparte.

ORDER.

1.                     Complainant has filed the present complaint alleging therein that he is one of the partner in a business of contractorship  under the name and style of  M/s S.S. Associates Engineers and Contractors at Ambala City. In January 2010,  complainant firm had placed an order of Paver Finisher Chain (mechanical) and Sensor Paver Finisher to the OP from  Ambala City for supplying the same at his workplace at Shahzadpur-Majra, District Ambala and cost/price of the machine was fixed as Rs.1,75,000/- including FOR which was paid to the OP vide account payee cheque bearing No.973358 dated 20.01.2010 in advance and a sale invoice  No.33 dated 27.01.2010 for a sum of Rs.1,74,574/- was also issued by the OP in this regard.  Complainant has further alleged that even after receipt of entire agreed amount in advance by OP from  the complainant, OP has failed  to supply the machine at Shahzadpur-Majra despite various requests made by the complainant. A legal notice dated 03.03.2010 was also sent to OP by complainant through his counsel vide registered/AD but the OP in connivance with the postal department got a false report made on the same and thus it was received back by the counsel of the complainant as ‘unserved’. Having no alternative, the present complaint has been filed by the complainant seeking relief as per prayer para.

2.                     Notices issued to OP were not served and as such publication was ordered to be issued against the Op  in newspaper ‘Dainik Bhasker’ but inspite of the same, OP did not bother to appear and as such, he was proceeded against  exparte vide this Forum’s order dated 26.11.2012.

3.                     In evidence, the counsel for complainant tendered affidavit  of complainant as Annexure CX alongwith documents as Annexures C-1  to C-6 and closed the evidence on behalf of complainant.

4.                     We have heard the counsel of complainant and gone through the case file very carefully.  The main grievance of the complainant is that he had placed an order for supply of Paver Finisher Chain(Mechanical) and Sensor Paver Finisher with the  OP and made total payment of Rs.1,75,000/- in advance to the OP through cheque No.973358 dated 20.01.2010 which was also got encashed by the OP but he failed to deliver the aforesaid machine at Sahzadpur.  Therefore, it is a clear cut case of deficiency in service on the part of OP besides an act of unfair trade practice committed by him.  In the end, complainant has requested for issuing a direction to OP to refund  an amount of Rs.1,75,000/- to complainant alongwith interest @ 18% per annum w.e.f. 20.01.2010 to till realization and damages to the tune of Rs.1.00 lac.

5.                     At the very outset, the main question which arises for consideration before the Forum is that “whether the complainant comes under the definition of “Consumer” as defined in Section 2(1)(d) of the Consumer Protection Act,1986?”  for which we have to go through the definition of Consumer which is reproduced as under:-

                        Section 2(1)(d)

                        “Consumer” means any person who-

1. 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
2. [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 or 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 purpose of earning his livelihood by means of self employment].

                        In the present case, the burden of showing that the machine in question was actually being purchased by the complainant-firm for earning its livelihood through self employment necessarily lies on the complainant but he failed to submit any document or evidence in support of this.  Hence, the plea of the complainant that machine is being purchased by him for its own use is not tenable since the purchase order Annexure C-2 nowhere depicts that purchaser  of Machine is Sandeep Bansal rather purchaser is M/s S.S. Associates firm.  Besides it, it is clear from document Annexure C-2 that the machine in question is being purchased from Modinagar, Distt. Ghaziabad (U.P) and the OP is doing his business at Modinagar Ghaziabad (U.P.) and no branch or office/agent of OP is working in the territorial jurisdiction of District Consumer Forum, Ambala.  Further, in the aforesaid document i.e. Annexure C-2, it is clearly mentioned by the OP firm that ‘any disputes subject to Modinagar jurisdiction only’.   Hence, the complaint in question does not disclose any cause of action to have taken place within the jurisdiction of this Forum and that too no opposite party resides or having its office situated within the jurisdiction of this Forum. Therefore, in light of the decision rendered by Hon’ble Supreme Court of India in Civil Appeal No.1560 of 2004 titled as Sonic Surgical Vs. National Insurance Company Ltd. reported in 2010 (1) Consumer Law Today page 252, we hold that this Forum lacks territorial jurisdiction. 

6.                     After hearing the complaint and going through the facts of the case, we have come to the conclusion that the legislature in its wisdom has found it appropriate to bar and exclude goods which are being used for commercial purposes from the jurisdiction/ ambit of the Consumer protection Act 1986 (hereinafter referred to as “the Act”) and the provision of Section 2(1)(d) of the Act makes that amply clear.

            So, in view of facts discussed above, the present complaint is not maintainable for lack of jurisdiction as well as the complainant is not a consumer as per provisions enshrined in the Consumer Protection Act. As such, the complaint is dismissed with no order as to costs. Copies of this order be sent to the parties concerned free of costs, as per rules. File be consigned to the record room after due compliance. 

                                                                                                        Sd/-

Announced:15.5.15                                                             (A.K. SARDANA)

                           PRESIDENT            

                               Sd/-

                    (S.C. SHARMA)

                                                                                                 MEMBER