Haryana

Yamunanagar

CC/221/2010

Radhey Sham S/o Ram Dass - Complainant(s)

Versus

M/s Beeta Metal Industries. - Opp.Party(s)

Ashwani Batra

26 Jul 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

                                                                                               Complaint No… 221  of 2010.

                                                                                               Date of institution: 12.03.2010.

                                                                                               Date of decision: 26.07.2016.

Radhey Sham aged about 71 years son of Shri Ram Dass, proprietor M/s Ram Dass Radhey Sham, Radaur Road, Yamuna Nagar.                                                                                                                                                                                                                                                                                                                                                                                          …Complainant.

                                                       Versus

1. M/s Beeta Metal Industries, E-31, Industrial Area, Jalandhar, through its Proprietor Shri Tilak Raj.
2. Shri Tilak Raj, Proprietor M/s Beeta Metal Industries, E-31, Industrial Area, Jalandhar.
3. Shri Mahesh Jain, Sales Executive/ Sale Representative of M/s Beeta Metal Industries, E-31, Industrial Area, Jalandhar.
4. Shri Amit Sharma, authorized signatory/ authorized representative of M/s Beeta Metal Industries, E-31, Industrial Area Jalandhar.                                                                                                                                                            …Respondents.

BEFORE:         SH. ASHOK KUMAR GARG PRESIDENT,

                        SH. S.C.SHARMA, MEMBER.

 

Present:  Sh. K.B.Mehta, Advocate, counsel for complainant.  

               Sh. Sh. Mukesh Sehgal, Advocate, counsel for respondents No.1, 2 & 4.

               Respondent No.3 already ex-parte vide order dated 06.08.2012.     

             

 

ORDER

1                      Complainant has filed the present complaint under section 12 of the Consumer Protection Act. 1986 amended up to date.

2.                     Brief facts, as alleged in the complaint, are that the complainant is running a shop under the name and style of M/s Ram Dass Radhey Sham as proprietor situated at Radaur Road, Yamuna Nagar for earning his livelihood and deals in sale and purchase of Mill Store, Machinery parts and valves etc. The respondent No.1 (hereinafter referred as OP No.1) is a firm under the name and style of M/s Beeta Metal Industries, who is manufacturer of valves etc. and OP No.2 is the proprietor of Op No.1 and is managing all the business affairs on behalf of Op No.1. OP No.3 is the sales executive/ sales representatives of Op No.1 and Op No.4 is authorized signatory/ representative of Op No.1. On 16.09.2005, the OP No.3 on behalf of OP No.1 visited the shop of complainant at Yamuna Nagar and convinced the complainant for purchase of their product and assured the complainant for fair deals in all respect. On the assurance of the OPs, the complainant placed the orders for supply of various type of valves. After obtaining the order from the complainant, the OPs only supplied part of order placed for supply of material of order No.3 and they miserably failed to supply the balance materials of order No.3 and total supply of order no.29. The complainant has been regularly pursuing for immediate supply of balance materials and the OPs were also assuring that the materials were under dispatches but the OPs did not supply the balance materials because of their malafide intention. Neither the OPs supplied the balance orders material nor sent the credit note for the difference in the prices over charged by them in the invoices/bills for the supplies made to the complainant. Ultimately, on great pursuals, the OP No.1 sent one credit note for Rs. 14,033/- which was received by the complainant on 23.04.2008 as part amount of the total differences. Again, on great persuasions of the complainant, the Ops sent another credit note for Rs. 7745/- on 14.06.2008 and the same was credited by the complainant in his account books. The complainant many times requested the respondents to supply the balance ordered materials but all in vain. Lastly, prayed for directing the OPs to supply the balance ordered material and further to pay compensation as well as litigation expenses. Hence, this complaint.

3.                     Upon notice, OPs No. 1,2 & 4 appeared and filed its written statement jointly whereas OP No.3 failed to appear despite service, hence he was proceeded ex-parte vide order dated 06.08.2012. OPs No.1, 2 & 4 filed its written statement by taking some preliminary objections such as complaint is not maintainable; complainant is barred by principle of res-judicata because the matter in dispute has already been decided by the Hon’ble Court of Sh. Pushpinder Singh, Civil Judge, Junior Division, Jalandhar in civil Suit RBT of 2011 titled as Beeta Metal Industries vs. Ram Dass Radhay Sham decided on 25.08.2001. The Hon’ble Civil Court has decreed the suit of the plaintiff i.e. M/s Beeta Metal Industries against the respondent i.e. Radhay Sham for an amount of Rs. 40,560/- with interest and cost. The decree has become final because the complainant i.e. Sh. Radhay Sham has failed to institute any appeal against the judgment and decree within limitation. The present complaint has been filed as a counter blast to that civil suit; this forum has no jurisdiction to sit as an appellate court against the judgment of civil court; no locus standi to file the present complaint; matter in question involves complicated question of civil nature, therefore, this Forum has no jurisdiction to entertain, try and decide the present complaint; the complainant has not approached this Forum with clean hand and on merit it has been admitted to the extent that the complainant is involved in the business of sale and purchase of valves etc. and the complainant has been purchasing C.1 Ball Valves and Beeta Bro Union Bonnet No. 9 S/E from the OPs on credit basis from time to time against various invoices. The OP No.3 never visited the shop of complainant at Jagadhri for selling the products of OP No.1 firm, rather it is the complainant who used to place the order for the supply of products of OP No.1 firm at Jalandhar.   Lastly prayed for dismissal of complaint.

4.                     Counsel for the complainant tendered into evidence affidavit of Radhay Sham complainant as Annexure CW/A and documents such as Photo copies of order form as Annexure C-1 & C-2, Photo copy of letter dated 7.12.2005 as Annexure C-3, Photo copy of credit note as Annexure C-4, Photo copy of calculation of discount as Annexure C-5, Photo copy of retail invoice as Annexure C-6 and closed the evidence on behalf of complainant whereas on the other hand, counsel for the OPs No.1,2 & 4 failed to adduce any evidence, hence their evidence was closed by court order on dated 09.06.2016. 

5.                     We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file very minutely and carefully.

6.                     In the present complaint the complainant wants to get the supply of balance ordered material and compensation from the OPs by way of this complaint as the complainant firm is doing the business of mills store machinery parts and valves etc. From the perusal of contents of the complaint it is clear that complainant firm had business transaction with the OPs who is dealing in the business of same nature. From the perusal of the entire pleading, it is clear that the transaction between the OPs and complainant are purely of commercial nature as there was simply sale and purchase between the parties. Neither any defect in the goods nor any deficiency in service has been alleged by complainant in his pleading.

7.                     Further, the complainant has filed this complaint for supply the balance ordered material and compensation which was booked in the year 2005 and the present complaint has been filed on 12.03.2010 i.e. after a gap of near about 5 years whereas, as per section 24 (a) of the Consumer Protection Act, the complaint can be filed within a period of two (2) years which is reproduced as under:

                        Limitation Period. (1) The District Forum, the State Commission or The National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.

(2)        Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub section (1), if the complainant satisfies the District Forum, The State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period.

            Provided that no such complaint shall be entertained unless the National Commission, The State Commission or the District Forum, as the case may be, records its reasons for condoning such delay. 

8.                     In the present complaint, neither the complainant has filed any application for condonation of delay nor any prayer has been made in the complaint itself.  Hence, the complaint of the complainant is hopelessly time barred. Further, this is a dispute between both the firm only for sale and purchase of the goods, hence, the complainant firm does not fall under the definition of consumer as define in section 2(1)(d)(i) of the Consumer Protection Act, 1986.

9.                     After going through the above noted facts and circumstances of the case, this Forum is of the considered view that neither the complainant falls under the category of consumer nor the complaint is within the limitation and the complaint of the complainant is only misuse the process of law. Maximum, the matter in dispute may be of Civil nature. Hence, we find no merit in the present complaint and the same is hereby 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.

Announced: 26.07.2016.

                                                                                    (ASHOK KUMAR GARG )

                                                                                    PRESIDENT,

                                                                                     

                                                                                    (S.C.SHARMA )

                                                                                     MEMBER.