In the Court of the Consumer Disputes Redressal Forum, Unit -I, Kolkata, 8B, Nelie Sengupta Sarani, Kolkata-700087. CDF/Unit-I/Case No. 221 / 2008 1) M/s. Rotomak Industries, 141, Narkeldanda Main Road, Kolkata-700011. ---------- Complainant
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1) M/s. Balaji Agro, 32, J.L. Nehru Road, Kolkata-71. 2) M/s. Sumran Ware Housing Co. , C/o. Arapee Internationa, 7, N.S.D., Kolkata-43. ---------- Opposite Party Present : Sri S. K. Majumdar, President. Sri T.K. Bhattachatya, Member Order No. 1 4 Dated 0 6 / 0 1 / 2 0 1 0 . This is a case filed by one Sri Prasanta Dhar sole proprietor of M/s. Rotamak Industries at 141, Narkeldanga Main Road, Kolkata-11. He came before the forum for redressal u/s 12 of the C.P. Act. Brief story of the complainant is that by a letter dt.22.1.08 the o.p. no.1 M/s Balaji Agro addressed to the complainant and placed an order for popular 25 gms. Pouch amounting 500 kgs @ Rs.180/- per kg and requested to deliver the said materials at the address of the o.p. no.2 M/s. Sumran Ware Housing Co. within 7 days with an undertaking to make payment after 21 days from delivery and verification of item. The complainant delivered the said goods on 12.2.08 and 21.2.08 respectively at the address of the o.p. no.2 and o.p. no.2 have received the same goods. After delivery of said goods the o.p. no.1 returned back 47 pieces of popular 25 gms leaf weight 639.98 kgs for rewinding purpose to the complainant on 6.3.08. After rewinding the said goods the complainant again delivered the said goods to the address of the o.p. no.2 and they received the same on 19.3.08 weight 629.6 kg in 46 rolls. Ultimately, the o.p. no.2 received quantum of goods 666.1 kg after deducting the wastage goods on 11.2 kg and accordingly, the complainant raised the bill amount of Rs.124693/- including 4% vat tax through a bill no.RMI/13/2007-2008 dt.21.2.08 which was received by the o.p. no.1. In spite of receiving the said goods and tax invoice the o.p. no.1 deliberately and intentionally did not pay the same bill amount to the complainant and moreover, the o.p. no.1 by sending their authorized person Bhaskar Guha lifted 37 number of cylinders (including soya max 100 gm 1 kg and meri chai CTC 100 mg, 250 gm 25 gm and CTC and dust cylinders) on 6.5.08, but instead of lifting the cylinder they did not pay the bill amount to the complainant. Being compelled the complainant sent the demand notice to the o.p. no.1 through his advocate on 19.5.08 through regd. post which was duly received by the o.p. In spite of that the o.ps. did not pay the bill amount of Rs.124693/- within the stipulated period and without getting any redressal the complainant is compelled to come before this forum for redresal of his grievances. On the other hand, o.p. by filing w/v states that the said complaint is misleading, frivolous, concocted and without any substance. The o.p. is the distributor of various branded tea. They have made an order of 25 gm pouch of 500 kg @ Rs.180/- per kg and in the said order it was specifically mentioned that bills to be submitted with proper attested that is original company word order and received challan of godown with stamp, the delivery will be within 7 days and payment will be made after 21 days from the delivery and verification. Moreover, they have requested the complainant to maintain standard quality work, if any, article found unusable, damaged, degraded due to transportation or manufacturing defect and others, that should be either replaced by the complainant for free of cost or will be rejected. Accordingly, the o.p. no.1 sent 37 cylinders for lamination of such pouch of popular brand. But in fact, long after the expiry of 7 days from the date of the work order of the o.p. company the complainant purportedly initially delivered 245 kgs laminated 25 gms each “popular pouch” by 18 rolls and subsequently on 21.2.08 delivered 441.8 kgs laminated 25 gms each “popular pouch” by 34 rolls at the address of the o.p. no.2 without showing the work order, without verifying the quantity and quality of the goods work received by the authorized person of o.p. no.1. As such, the complainant delivered excess goods of 686.8 kg without any consent of the o.p. no.1. But after receiving the aforesaid delivered goods on verification it was found that out of total 52 rolls, 47 rolls of 25 gms tea leaf of “popular pouch” of total weight 639.98 kgs were defective due to manufacturing defects and vide road challan dt.6.3.08 those 47 rolls were returned to the complainant for rebinding purpose which was received by the authorized person of the complainant on 6.3.08. That on receipt of such defective goods complainant again without deducting the excess goods delivered the said goods to the o.p. company on 19.3.08 in 46 rolls with the gross weight of 629.6 kgs and the same was again received by the authorized person of o.p. without verification of quality on 19.3.08 and with the remark quality “not checked” and after verification of those delivered goods o.p. requested the complainant to take back the excess quantity and returned those 37 cylinders which were sent to them for printing purpose and raised a fresh bill for 400 kgs goods. But the complainant did neither take back those excess goods and raise a fresh bill, nor did return back those 37 cylinders to the o.p. no.1 as the complainant failed and neglected to take back the excess quantity of goods. The o.p. no.1 did not pay the bill amount which was raised for the excess quantity of goods beyond the work order as the said bill dt.21.2.08 amounting to Rs.124693/- is totally contradictory to the work as made by the o.p. no.1. Thus the instant complaint case is not maintainable as the complainant has not appeared in clean hand. Both parties have filed affidavit on evidence and questionnaire, reply to the questionnaire and BNA. Heard both of them at length. Perused all documents. In view of the aforesaid pleadings made by the ld. Advocates of both the parties following questions arose for determination: (1) Is the complainant a consumer within the meaning of C.P. Act ? (2) Is there any deficiency occurred? Decision with reasons: It appears from the materials of the record that admittedly o.p. no.1 booked an order for some amount of tea from the complainant and that was delivered to the o.p. no.2. Dispute has arisen regarding the payment of bill amount. As such, it has become clear to us that the o.ps. purchased some quantity of tea and the said amount of tea was delivered to the o.p. no.2. As such, the service was hired from the complain ant. But as per the C.P. Act u/s 2(i)(d) a ‘consumer’ means any person who 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 as per section 2(ii)(d) hires or avail any services for a consideration which has been paid or promised or partly paid or partly promised or under any system of deferred payment. But in this case it is very much clear that the o.ps. have purchased things from the complainant, hired services from the complainant, as such, we hold that in this case the complainant is not at all a consumer. We cannot consider the complainant even a beneficiary. Dispute was arisen out of selling of 25 gms pouch amounting 500 kg @ Rs.180/- per kg. and that huge amount of order for commercial purpose was placed before the complainant not before the o.ps., so under the purview of the four corners of C.P. Act, we cannot consider the complainant as a consumer and the case is dismissed. Hence, Ordered, That the Case no.221 of 2008 is dismissed on contest without any cost. Supply certified copy of this order to the parties on payment of prescribed fees. ____Sd-_____ _____Sd-______ MEMBER PRESIDENT | 
