Presented by:
Minakshi Chakraborty, Presiding Member
BRIEF FACTS OF THE CASE :
This instant case has been filed by the complainant under Section 35 of the Consumer Protection Act, 2019. As per submission of the complainant, the complainant being the sole proprietor of her manufacturing business of Paper Cup for the purpose of earning of her livelihood by mean self employment decided to purchase one Paper Cup Forming Machine and for the same she visited the Shop-Cup-Workshop of O.p. on 01/07/2020 and settled to purchase a particular machine for which O.p. raised one quotation reference no.ATITL/020-11/2020-21 and the total consideration at Rs.10,67,900/-. The complainant paid the part consideration of Rs.6,00,000/- out of Rs.10,67,900/-. Despite receiving the said advanced money O.p. failed to deliver the said machine to the complainant for which on 23/12/2021 O.p. entered into an Agreement with the complainant regarding refund of the total advanced money of Rs.6,00,000/- within 30/04/2022. In spite of such Agreement dated 23/12/2021 O.p. failed to refund the said amount for which the complainant sent a legal notice through her advocate on 03/08/2022 for refund of the said advanced money but unfortunately O.p. did not turn up.
Having no other alternative complainant constrained to file the instant C.C. case with a prayer for compensation amounting to Rs.1,00,000/- from the O.p. for harassment mentally and financially alongwith a further direction upon the O.p. to return back advanced money of Rs.6,00,000/- with @10% interest p.m. from the date of receiving of the said amount till realization with a further direction to the O.p. for paying simple rate of interest upon all dues till realization of amount and Rs.50,000/- as litigation cost.
DEFENCE CASE:
In spite of receiving notice O.p. did not turn up for which this Commission has compelled to proceed with the case record ex-parte vide order no.7 dated 05/09/2023.
Evidence on record
The complainant filed evidence on affidavit and written notes of argument which are nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition. The case is running ex-parte against O.p.
Argument highlighted by the ld. Lawyer of the complainant
Complainant has filed separate written notes of argument. As per BNA., evidence on affidavit and written notes of argument shall have to be taken into consideration for disposal of the case.
Heard argument of the complainant side at length. In course of argument ld. Lawyer for the complainant has given emphasis on evidence and documents produced by them.
From the discussion hereinabove, we find the following issues/points for consideration.
Issues/points for consideration
- Whether the complainant is the consumer?
- Whether this Forum has territorial/pecuniary jurisdiction to entertain the case?
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled to get relief?
DECISION WITH REASONS
The pivotal issue involved in the instant case is whether the complainant is at all a consumer or not. As per section 2(7) of the Consumer Protection Act
"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 service 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 service 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 service for any commercial purpose.
Explanation. —For the purposes of this clause, —
(a) the expression "commercial purpose" does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;
(b) the expressions "buys any goods" and "hires or avails any services" includes offline or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing;
From the bare reading of the said definition it is discernible that the definition of Consumer does not include a person who obtains any goods for resale or any commercial purpose.
Though no straight jacket formula can be adopted in every case but the following principles can be culled out for determining whether an activity or transaction is for a commercial purpose. The question of whether a transaction is for a commercial purpose would depend upon the facts and circumstances of each case. However, ordinarily commercial purpose is understood to include manufacturing/industrial activities or business to business transaction between commercial entities. Most importantly the purchase of goods or service should have a close and direct nexus with a profit generating activities. The identity of the person making the purchase or the value of the transaction is not conclusive to the question of whether it is for a commercial purpose. It has to be seen whether the dominant intention or the dominant purpose for a transaction was to facilitate some kind of profit generation for the purchaser and/or beneficially. If it is found that the dominant purpose behind the purchase of goods or for the service was personal use and consumption of the purchaser and/or their beneficiary, or is otherwise not linked to any commercial activity, the question of whether such a purchase work was for the purpose of “generating livelihood by means of self employment” need not be looked into. Here in the instant case, the complainant has ordered one machine for manufacturing paper cup for her company-M/S, Bini Engineering Works and the total consideration amount was fixed for purchasing the machine was Rs.10,67,900/-. The complainant has submitted one photocopy of Makardah Gram Panchayat-II issued by Pradhan, Makardah Gram Panchayat-II which clearly shows that it is a certificate for enlistment of her business/trade (annexure - A). Though the complainant has paid Rs.6,00,000/- to the O.p. who by entering into an Agreement with the complainant dated 23/12/2021 promised to return the said amount as because the O.p. could not provide the said machine, but from the documents submitted by the complainant this commission does not find that the complainant intends to purchase the said machine for generating livelihood by means of self employment. From the complaint petition and its annexures it is clear that the purchase of the said machine has a close and direct nexus with a profit generating activities.
So, complainant herein is not a consumer at all and accordingly this Commission does not have jurisdiction with regard to the instant dispute. This issue is thus disposed of. As the complainant is not a consumer, other issues need not be discussed. Complainant is miserably failed to prove her case. All the issues are thus disposed of.
Hence,
ORDERED
That the Complaint case No.313 of 2022 be and the same is dismissed ex-parte. No order is passed as to cost.
Complainant is on liberty to move before the appropriate Forum with same cause of action.
Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.
The Final Order will be available in the following website The word file is drafted and corrected by me.
(Minakshi Chakraborty)
Member
D.C.D.R.C., Howrah
