The instant case has been initiated by the complainant u/s. 12 of the C.P. Act, 1986 against the opposite parties claiming an amount of Rs. 18,52,974.89/- (Principal claim amount) towards non-delivery of 63,46 M.T. Scrap CST.9(Iron) + Rs. 1,00,000/- for mental agony and sufferings + Rs. 20,000/- as litigation cost + Rs. 27,000/- as cost of negligence in service.
The fact of the case, in brief, is that the complainant is a businessman having a company under the name and style as India Iron stores and this is the sole earning source of the complainant to lead his livelihood and to maintain his family. On the other hand the O.Ps are the Registered Limited Company used to deal with various scrap Iron business all over India and used to give various lucrative advertisement and being attracted with the said advertisement, on 03/12/2018 the complainant paid Rs. 1,00,000/- to the O.Ps towards Global pre-Bid through his Bank Account lying with United Bank of India, Jaigaon Branch (Annexure-A2 is the document to prove the same) and Photocopy of Trade License issued by the Jaigaon-II Grampanchayat (Annexure – A1is the document to prove the same).
On 03/12/2018 the O.P Nos. 1, 2 and 3 confirmed to the complainant that an amount of Rs. 1,00,000/- towards Global pre-Bid EMB have been received and the O.Ps also informed to the complainant that on 06/12/2018 the O.Ps conducted an open auction of scrap CST.9 (Iron) at near weigh bridge / New Scrap Yard, State of West Bengal (Photocopy of auction category Annexure – B is the document to prove the same).
It is further stated that on 06/12/2018 the complainant participated in an open auction for scrap CST.9 (Iron) quantity 150 M.T. and the complainant was willing to purchase 150 M.T. scrap C.S.T. 9 (Iron) at a tune of Rs. 43,79,865/-. On 07/12/2018 the O.P. Nos. 1, 2 and 3 informed the complainant that the complainant bids against the scrap C.S.T.9 (Iron) have been provisionally accepted and the O.Ps were requested to the complainant to deposit an amount of Rs. 3,67,500/- by way of RTGS/NEFT/E-payment gateway as per terms and conditions of this E-auction in favour of O.P. Nos. 4,5 and 6 at S.B.I., Andua within 7days from the date of acceptance of the items (Photocopy of sale intimation letter dated – 07/12/2018 Annexure - C is the document to prove the same).
It is further stated by the complainant that after receiving the sale intimation letter issued by this O.Ps the complainant on 15/12/2018 made payment of Rs. 3,67,500/- through his bank account of U.B.I. On 21/12/2018 the O.Ps sent acceptance letter / sale order details to the complainant and the O.Ps were requested to deposit of Rs. 39,08,546/- including (TDS of Rs 4,594/-) by E-payment /D.D./P.O. favoring NTPC Ltd., payable at S.B.I., Andua within 04/01/2019 (Photocopy of acceptance letter/sale order details dated 21/12/2018 as Annexure - D is the document to prove the same).
The complainant paid full amount to the O.Ps on 03/01/2019 of Rs. 39,12,365/- through his bank account of U.B.I. (United Bank of India), after that the O.P Nos. 1,2 and 3 issued a delivery order in favour of the complainant vide Reference No. MSTC/ERO/18-19/2099 dated 04/01/2019 and in that delivery order O.P. Nos. 1, 2 and 3 clearly mentioned that within15/02/2019 total quantity of scrap C.S.T.9 (Iron) i.e. 150 M.T. towards the complainant and on 06/02/2019 the O.P Nos. 4,5 and 6 also issued another delivery orders scrap CST.9 (Iron) total quantity 150 M.T. (Annexure– E/i) photocopy of delivering order dated 04/01/2019 ii) Photocopy delivering order dated - 06/02/2019 is the document to prove the same)
After that the complainant received 86.54 M.T. scrap CST.9 (Iron) out of 150 M.T. scrap CST.9 (Iron), but till the date of filing of the case O.Ps did not provide 63.46 M.T. CST.9 (Iron) to the complainant (Annexure-F Photocopy of delivery challan is the document to prove the same).
It is further stated that on 08/03/2019 the complainant sent an application to the O.Ps by stating that the complainant have deposited total amount of Rs. 43,79,868/- towards 150 M.T. of scrap CST.9 (Iron) to the account of the O.P Nos. 1, 2 and 3 but the complainant received only 86.54 M.T. CST.9(Iron) and a quantity of 63.46 M.T. scrap CST.9(Iron) amounting to Rs. 18,52,974.89/- did not receive by the complainant (Annexure –G photocopy of letter dated 08/03/2019 is the document to prove the same) in response to the above letter on 22/08/2019 the O.Ps requested to the complainant through e-mail to submit some documents Annexure-H/i) Photocopy of letter dated 22/08/2019 and ii), Photocopy of letter dated 06/09/2019 submitted by the complainant in this regard as the document to prove the same) but the O.Ps did not supply the balance iron scrap as stated above.
Having no other alternative the complainant has filed this case for relief as prayed for.
Notice was duly served upon the opposite parties and after receiving the notice O.P Nos. 1, 2 and 3 filed their written version by post but they did not turn up subsequently in order to contest the case and they did not file any evidence. It also appears from the case record that O.P Nos. 4, 5 and 6 made their appearance on 04/03/2020 but after that they did not file any written version to contest the case. Therefore, the case has been proceeded ex-parte against them.
In support of the case the complainant has filed some documents by Annexure - A to H and also filed written evidence-in-chief in order to prove his case.
In their W/V of the O.P Nos. 1, 2 and 3 denied all the material allegations of the complainant and stated that the complainant is a business man and had taken trade licenses from the authority to run his business, and it is categorically admitted by the complainant that he is running his business under the jurisdiction of Ld. Forum and he is categorically admitted that the business is the sole earning source. So the complainant has agreed and admitted that he has participated in the Auction in the question for business purpose only. In view of the above it can be clearly construed that the complainant is not a consumer as defined in Section 2(1)(d) of Consumer protection Act, 1986.
In support of O.Ps statement in the W/V the O.P Nos. 1, 2 and 3 cited two judgments passed by the Hon’ble Appellate Court which are attached and marked as Annexure- 1(a) Rajib Metal Works and Ors -vs- The Metal Trading Corporation of India Ltd. 1996 AIR-1083. (b) Laxmi Engineering Works -vs- P.S.G. Industrial Institute, 1995 AIR-1428 and the O.Ps also filed copy of the buyer specific terms and conditions which were attached marked as Annexure–2. The O.Ps also stated in their W/V that the complainant can not be made MSTC as a party. They also stated that the complaint is highly speculative, frivolous, vexatious and unsustainable both in law and facts and all the averments and statements made in the complaint are denied by the O.P Nos. 1, 2, and 3.
We have gone through the materials on record very carefully and also perused the documents which are lying on record and also heard argument from the Ld. Advocate of the complainant.
From the complaint petition, W/V of O.P Nos. 1, 2 and 3, evidence of the complainant and other materials on record the following points are framed:-
POINTS FOR CONSIDERATION
- Is the complainant is a consumer u/s. 2(1)(d) of C.P. Act 1986?
- Are the O.Ps deficiency in providing service?
- Is the complainant entitled to get any relief/reliefs as prayed for?
DECISION WITH REASONS
Considering the nature and character of the case all this points are interlinked to each other as such all the points are taken up together for consideration for the sake of brevity and conveyance.
From the evidence of the complainant and other documents on record it is seen that being attracted by the various lucrative advertisements by the O.Ps, Company the complainant on 03/12/2018 paid of Rs. 1, 00,000/- to the O.Ps towards global pre Bid, through his Bank account lying with United Bank of India (Jaigaon Branch) and O.P. no 1,2 &3 have confirm to the complainant that Rs. 1,00,000/- towards global pre Bid EMB have been received by them and also informed to the Complainant that on 06/12/2018 the O.Ps would conduct a open auction of scrap CST9 (IRON) at new Way Bridge/New scrap yards, state W.B. The complainant on 06/12/2018 participated in that auction for purchasing scrap CST9(iron) quantity 150 M.T. and the complainant was willing to purchase 150 M.T. scrap CST9(IRON) at a tune of Rs. 43,79,865/-.
It is also evident from the evidence of the complainant that on 07/12/2018 the complainant took part bids against the scrap CST.9 which was provisionally accepted and he had received the sale intimation letter issued by the O.Ps company. After that on 03/01/2019 the complainant had paid Rs. 39, 12,365/- to the O.Ps through his bank account, United Bank of India Jaigaon Branch by the request of O.Ps company. After that O.P. no 1, 2 and 3 issued a delivery order in favour of the complainant where it was clearly mentioned that within 15/02/2019 they would deliver total quantity of scrap CST.9 (iron) i.e. 150 M.T. to the complainant and on 06/02/2019 the O.P No. 4, 5 and 6 also issued another delivery order scrap CST.9 (IRON) total quantity 150 M.T. But the Complainant had received only 86.54 M.T. scrap CST.9 (IRON) out of 150 M.T. scrap CST.9 (iron) and after that O.P company did not deliver the balance quantity of 63.43 M.T. CST.9 (iron) to the complainant.
From the above evidence led by the complainant, it is clear by us that the complainant is a businessman and he had purchased all the above materials for commercial purpose only. Here though he has mentioned in his complaint that the scrap business is his only source of income and he is doing so for earning his livelihood by means of self employment, but from the evidence of the complainant and other connected documents it is seen by us that the complainant purchased a bulk quantity of scrap iron from the O.Ps company and the total purchased amount was nearly Rs. 44 lakhs. Considering the heavy amount of transaction it is easily understandable by us that he had purchased the item for commercial purpose only and as the volume of the transaction was nearly Rs. 44 lakhs so, it can be deduceable by us that he can not run the business singly and he was engaged in various activities, and the said business can not be run by him single handedly.
The Hon’ble Supreme Court opined in Laxmi Engineering Works -vs- P.S.G. Industrial Institute, 1995 AIR 1428, The Hon’ble Supreme Court in that case clearly distinguished the commercial purpose from the ratio of the case it is seen by us that the basic prerequisite large scale trading or business activity for the purpose of making profit is totally present here that “In the case now before us, it is clearly established by the materials on record that the purpose of the purchase of the paper copier by Mrs. Shanta Manuel was only to enable to earn her livelihood by the process of self employment. Such being the factual position Mrs. Shanta Manuel can not be said to have purchased the machine for a 'commercial purpose' inasmuch as the basic prerequisite of large scale trading or business activity for purpose of making profit is totally absent. We hold that the view concurrently expressed by the District Forum and the State Commission that the complainant is not 'consumer' entitled to invoke the jurisdiction of the consumer forum is incorrect and the said finding will stand set aside.”
Again it is seen from the evidence of the complainant and other materials on record that the complainant had purchased the above noted iron scrap from the O.Ps company by auction.
Now the question is where the auction purchaser can be a consumer or not?
The Hon’ble Supreme Court opined in UTI Chandigarh Administration -vs- Amarjeet Singh II (2009) CPJ 1 (SC), that “an auction purchaser is not a consumer within the meaning of the Act and a complainant made by such a purchaser seeking relief under this Act is not maintainable.”
It is further to be mentioned that as per definition of the C.P. Act, 1986 Consumer means any person who -
- “Buys any gods for a consideration which has been paid or promised or partly paid and partly promised, or under system of deferred payment and includes any user of such goods other then 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 it such use is made with the approval of such person but does not includes a person who obtains such goods for resale or for any commercial purpose or
- Hires or avails of any service’s 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 then 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 differed payment, when such services are availed of with the approval of the first mentioned person.”
From the above discussion it is totally clear by us that the complainant had purchased the iron scrap for the commercial purpose and we are not convinced that only for his earning livelihood he is running such a big business. Furthermore the auction purchaser is not consumer at all.
Therefore, in our view this consumer complaint is not maintainable before this Forum / Commission. The complainant has totally failed to prove his case.
Hence, it is;
ORDERED
that the consumer complaint being CC/31/2019 is dismissed on contest against O.P Nos. 1, 2 and 3 and ex-parte against O.P Nos. 4, 5 and 6 as non-maintainable.
Let a copy of this final order be sent to the concerned parties through registered post with A/D or by hand forthwith for information and necessary action.
Dictated & Corrected by me
