Haryana

Ambala

CC/194/2018

M/s superb Technologies - Complainant(s)

Versus

M/s Innovative Research - Opp.Party(s)

23 Jul 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

 

                                                          Complaint case No.:  194 of 2018.

                                                          Date of Institution         :  15.06.2018.

                                                          Date of decision   :  23.07.2019.

 

M/s Superb Technologies Plot No.80, Industrial Estate, Ambala Cantt through Ravinder Aggarwal (Partner).

          ……. Complainant.

                                                Versus

 

 

 M/s Innovative Research Equipment House No.18, Village Sultanpur, Post Office Kalirono, Tehsil Ladwa, Distt. Kurukshetra attention Mr. Rohit Kashyap.

 

               ….…. Opposite Party.

 

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member.

Shri Vinod Kumar Sharma, Member.                 

                            

Present:       Shri A.B. Kapoor, Advocate, counsel for complainant.

Shri Manish Kashyap, Advocate, counsel for the OP.

 

Order:        Smt. Neena Sandhu, President

Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Party (hereinafter referred to as ‘OP’) praying for issuance of following directions to it:-

1. To refund Rs.40,000/-, paid in advance to it.
2. To pay Rs.50,000/- as damages for loss of business.
3. To pay Rs.10,000/- as compensation for the mental agony and harassment suffered by it.
4. To pay litigation cost.  
   382.  

                   Any other relief which this Hon’ble Forum may deem fit.

 

Brief facts of the case are that the complainant had placed an order to the OP for the supply of machines for a sum of Rs.1,10,000/-. The OP collected advance amount of Rs.40,000/-, which was confirmed by the OP vide email dated 15.02.2018. As per the agreement, the OP was to supply the machines within ten days from the date of receipt of advance payment of 40%, but it failed to supply the same as per terms and conditions of the agreement, due to which, the complainant could not fulfil the business order and had suffered a loss of Rs.1,00,000/- in the business. Due to said act and conduct of OP, complainant cancelled the contract and requested for refund of advance money. A legal notice dated 14.05.2018 was issued to the OP for the demand of advance money alongwith damage charges of Rs.50,000/-, but the OP involved the complainant in a false case before the police station Mahesh Nagar. However, when the complainant made the statement that it will a legal action against the OP, then, the false complaint was closed by the police. The OP had given a false and baseless reply to the legal notice. Since, the OP failed to supply the goods within ten days, therefore, it committed deficiency in service. Hence, the present complaint.

2.                 Upon notice, OP appeared through counsel and filed written version, raising preliminary objections regarding jurisdiction and cause of action. It is further stated that the complainant is not a consumer, as the transaction in question is totally business transaction, which is used for commercial purposes. The complainant had placed an order of manufacturing and supply of machine Packed Bed Calyic Reactor and Three Phase Horizontal Separator. After negotiation, it was agreed to manufacture both the machines for the complainant for a total sale consideration of Rs.1,10,000/-, out of which, Rs.40,000/- was given as advanced to the OP and remaining amount was to paid after the manufacturing of the machine. The OP started manufacturing the machine at the place of the complainant and completed the project within 8 days and machine was ready for its working in the factory of the complainant. Thereafter, the OP asked for remaining amount including GST, for which, the complainant started lingering the matter on one pretext or the other. In the meantime, the complainant had sold the said machine to Kathmandu in Government University and took the amount alongwith the profits from the said University. The OP requested for his money time and again, but the bad intention prevails in the mind of the complainant to usurp the amount and it started claiming that the machine are inferior quality and said that until and unless the OP will not perform the Demo of manufactured at Kathmandu, Nepal, till then, it will not pay the amount to the OP. Thereafter, in the month of March, the OP went in the office of the complainant and demanded his remaining amount, upon which, the complainant and his son Abhishek Aggarwal started threatening the OP and abused it in the office at Ambala Cantt. The OP moved a complaint dated 05.03.2018 before the SHO, Mahesh Nagar, Ambala, but the police had not taken any action against the complainant. Moreover, the OP moved complaint to ADP Haryana and CM Haryana for taking action against the complainant, but the complainant being the influential person and nothing had been done against him. Now the complainant had filed the present false complaint. On merits, rest of the allegations levelled by the complainant were denied for lack of knowledge and prayer has been made for dismissal of the present complaint.

3.                The ld. counsel for the complainant tendered affidavit of Shri Ravinder Aggarwal, Partner of the complainant firm as Annexure CA along with documents as Annexure C-1 to C-12 and closed the evidence on behalf of complainants. On the other hand, learned counsel for OP tendered affidavit of Shri Rohit Kashyap, Proprietor of OP firm as Annexure OP/A alongwith documents Annexure OP1 to OP6 and closed the evidence on behalf of OP.

4.                 We have heard the learned counsel for parties and carefully gone through the case file.

5.                 The learned counsel for the complainant has argued that the complainant had placed an order with the OP, for supply of machines worth of Rs.1,10,000/-, out of which, the complainant had paid Rs.40,000/- in advance. As per the agreement, the OP was to supply the machines within ten days from the date of receipt of advance payment of 40%. However, the OP did not supply the said machines in time, due to which, the complainant could not fulfil the business order and had suffered a loss of Rs.1,00,000/-.

6.                On the contrary, the learned counsel for OP has argued that the complainant had placed order with the OP for supply of machines for selling the same further to its customers to earn profit. Since the transaction for purchasing the said machines was a commercial one, therefore, as per Section 2(1)(d) of the Consumer Protection Act, 1986, the complainant is not a consumer and the complaint filed by it, is not maintainable before this Forum and same may be dismissed with cost.  

7.                Admittedly, the present complaint has been filed by the partner of a partnership firm. In para No.5 of the complaint, the complainant has stated that due to non supply of machines in time by the OP, the complainant could not fulfil the business orders and suffered a loss of Rs.1,00,000/- in the business. From the contents of the complaint, it is clear that the complainant has order for supply of machines in question to the OP not for its personal use, but for resale to earn profits. Meaning thereby, he had purchased the said machines for commercial purposes. Thus, as per Section 2(1)(d) of the Consumer Protection Act, 1986, the complainant cannot be said to the consumer qua the OP. In this regard, we can rely upon the judgment passed by the Hon’ble National Commission in the case of Sathya Sai Agencies Vs. Punjab National Bank and others, 2016(1) CLT, 308 (NC), wherein, it has been held that in view of the exception carved out in the definition of the consumer, the petitioner is not a consumer – The petitioner partnership firm being unnatural person by no stretch of imagination can avail of the benefits of the explanation. Since the complainant is not a consumer, as envisaged u/s 2(1)(d) of the Consumer Protection Act, 1986, therefore, we dismiss the present complaint being not maintainable before this Forum. However, the complainant is at liberty to seek the remedy before the appropriate Court. For the purpose of limitation, the time spent in present proceedings shall be excluded. Parties are left to bear their own cost. Certified copy of this order be supplied to the complainant, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced on :23.07.2019.

 

 

 

(Vinod Kumar Sharma)           (Ruby Sharma)               (Neena Sandhu)

 Member                                     Member                       President