Orissa

Rayagada

CC/32/2018

M/s Maa Bana Durga Enterprices - Complainant(s)

Versus

M/s Jaypee Engg. & Hydrazibc Equipmental - Opp.Party(s)

Self

29 Dec 2018

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL    FORUM, RAYAGADA,

STATE:  ODISHA.

C.C. Case  No. 32/ 2018.                                   Date.    29    .     12  . 2018

P R E S E N T .

Dr. Aswini  Kumar Mohapatra,                          President.

Sri  Gadadhara  Sahu,                                           Member.

Smt. Padmalaya  Mishra,                                     Member.

Smt. Malati Singh, W/O: Kamal Kumar Singh, Contractor,  At/Po: Komatlapeta,  Dist: Rayagada.                                                                                                                                …Complainant.

Versus.

The Sales and Service Officer,  M/S. Jaypee Engg.  & Hydraulic equipments Co. Ltd., Chandannagar, Memonpur, Budge, Trunk Road,  Maheshtala 24 Pgs(South)., Kolkota                              … Opposite parties.

Counsel for the parties:                         

For the complainant: - Sri V.S.Raju, Advocate, Rayagada.

                                                                               

JUDGEMENT

The  curx of the case is that  the above named complainant alleging deficiency in service  against  afore mentioned O.Ps    for non refund of entire 2 (two) units  price   inter alia damages a sum of Rs.10 lakhs  for which  the complainant  sought for redressal of the grievances raised by the complainant. The brief facts of the case are summarised here under.

                That the   complainant had sent   mail on   Dtd. 6.9.2016  to the O.P. quoting the rate    for purchase of  the Stationary mounted Log handling Grab (JPC).  After usual negotiations among the complainant and the O.Ps  offices the complainant  has placed  purchased order No. 01/2016-17 Dt. 5.11.2016 to the O.P. quoting her conditions of warranty  clause for the manufacturing  defects etc and the price of the unit   for  purchase  of  2 Nos. of JEHEL, make Stationary mounted  LOG Handling GRB with joy stick control.  It is agreed the O.P. shall install the nit and make a successful running of the same and shall be bound to supply and render services of attending the defects by deputing the technical  persons  and assistance to avoid any loss of work and production and works of the complainant.  The O.P having accepted the purchase order of the complainant  had sent the proforma invoice Dt,17.1.2017 for one unit of the Mounted Log handling Grab  with joy stick  control.  The complainant has applied for bank finance submitting the invoices of the OP and availed the loan and paid the initial amounts as mutually agreed by them.  In turn the O.P. No. has  supplied one unit of the mounted Log Handling Grab on  Dt. 4.2.1017 after receiving the amount of Rs. 12,89,063/- and deputed  service engineer for  installation.

          Again during the month of  May, 2017 the complainant  has also paid another sum of Rs.12,98,063/- as an advance for the supply of  the 2^nd. Unit  of the  Mount Grab  to the O.P.  The O.P has acknowledged the total   receipt  Rs. 32,38,155.00 as against the supply of  two units but without any successful installation. The O.P.  has not installed the second unit  which  has supplied on Dt. 23.5.2017 and also did not rectify the defects indicated in the installation and running of the Ist. unit of the Grab leaving the plight of the complainant to surf financially which against the terms and conditions of the supply and trade agreed by the O.P. The complainant made several  telephonic calls and discussion with the O.P. for deputation of the service engineer with spares. The O.P. did not care to attend the same.  Such attitude  and non  co-operation of the O.P. caused  much loss of investments of bank finance, loss production in the works to be performed  to the J.K.Paper Ltd and  resultant financial loss and humiliation and keeping the workmen idle and  paying wages for them. The O.P. has assemble the units  supplied to the complainant with poor materials which resulted sin break down of the units causing much loss  of production and feeding of which  she has  been engaged by the J.K.Paper Ltd.  The O.P. neither sent the spares and attended for services of the  above units and failed to fulfill the commitments. Due to such failure in service and providing  the spares immediately the complainant has lost her contract for installation  of the  3^rd. unit  of Grab with the  O.P. The complainant has paid Rs.32,38,126.00 to the O.P. against the total cost of the two units.  The O.P. has also  did not provide the assured services and did not change the said units and thus refused the services to the complainant.  Hence this C.C. case.  The complainant prays the forum to direct the take back entire units and also to pay the damages a Rs. 10 lakhs for the loss  of income, inerest to the bank, loss of production and for idle  wages to 15 Nos of workmen engaged in the units and mental agony suffered by the complainant for the  activities and refusal of the promised  services by  the O.Ps  and also award cost  of the proceedings Rs.50,000.00 and such other relief as  the  forum deems fit and proper  for the best interest of justice.

Before delving into the details of further adjudication, we first set out to dissolve the question of maintainability of the Complaint vis-a vis contentions of the parties and documents at hand submitted by the parties.

                Satisfied of the sufficient cause, the power of the forum to admit a complaint, though is  a consideration of preemptory in nature, and forum  must satisfy themselves, that there was sufficient cause for admission of the complaint on the basis of the submission of the Complainant  and issuance of notice under 13(1)(a) of the C.P.Act asking the counterparties to file their objections and counters within the time frame, to advent towards further is not barred any where in the Act.

.  It is held and reported  in CPR-2011(4) page No. 482   the  Hon’ble  National commission,  where in observed  “Conumer forum  can not adjudicate  disputes without  addressing to the basic issues”.  In  another citation  reported in CPJ 2010(1) page No. 136 where in the Hon’ble  State Commission, New Delhi  observed  “Forum should decide the dispute of jurisdiction  first, application kept open to be decided later”.

 

 

          On perusal  of the complaint petition  and other connected papers  filed  by the learned counsel  for the  complainant, it is revealed that  the complainant had purchased the  above two units  for commercial purpose. The  goods purchased  was worth Rs.32,38,155.00. The complainant had   obtained loan from the bank in order to purchase  the above  2 units.   It is well in advance the complainant was carrying on  the  contract  works  business   in the J.K.Paper  Mill Ltd.  company  for feeding  the Bamboo and hardwood in the Chipper Mills of the company  in the business  name M/S. Maa Bana Durga  Enterprises Propritor Smt.  Malati Singh.    The said firm is stated to be a  ‘A’ Class contractor. The investment made  in the  purchase of the machinery, the nature of  the business the complainant  was carrying  on in association with other persons, the volume of such  business and the persons employed or required to  be employed   in  carrying  on such  business   indicate that the income  earning  activities were  being carried  on by the  complainant at sufficiently large scale  in order to earn huge commercial profits. That being so, the plea of the  complainant  that she had  purchased the goods for earning  her livelihood by self employment can not be accorded judicial  recognition. Therefore, in the present case the complainant was not a consumer within the meaning of  the term defined  Under Section 2(1)(d) of the C.P. Act, 1986  in as much as the goods in question  had been  purchased for commercial purposes for earning commercial profit.   

          It was however  the  present dispute  not  involved “hiring  of services” by the complainant. On the face  if the transaction  entered into between  the parties  was a transaction for purchase  and  sale of goods.   It was not a contract of service  or the case of hiring of service   for consideration. The warranty  given by the  seller in respect  to the quality  of the goods  can not be read as having  a contract of service in it.  After sales service is coupled with the contract  of  sale itself.   There is no separate  agreement between  the parties  where under one party would have hired the services   of the other for consideration.  The consideration  was admittedly paid by the complainant  for purchase of  the goods itself.    No part of such consideration  was  paid for  the hiring  of the service. That being   so the observation  made by the  Hon’ble  National Commission in the  case of  International Airports Authority  of India Vrs.  Solidaire India  Ltd., 1999 (1)  CPR-17  are not at all   applicable to the  facts and circumstances of the present case.

          It may clearly  be noted that the relief claimed by the complainant was  repairs/replacement of the defective spare parts in the above  machines inter alia non installation of second unit   or payment of  Rs. 42,88,155/-.   It  was  not obligatory  on the part of the  District Consumer Forum  to have allowed   Rs. 42,88,155/-  as compensation to the  complainant exceeds the pecuniary jurisdiction of the  Forum. 

Under Section 11(1) subject to the other provision of this Act, the   District  Consumer  Forum shall have  jurisdiction to entertain complaints  where the  value of the  goods  or services and the compensation, if any, claimed  “does not exceed rupees twenty lakhs”.

          A plain reading of the above section shows  that if the value of the goods or services and  the  compensation claimed,  exceeds Rs. 20 lakhs, the pecuniary jurisdiction to deal with such consumer complaint  does not lie with the District Consumer Forum. As stated in the prayer clause of the   complaint  as reproduced above, it is very clear that  the complainant  demanded a compensation of  Rs. 10,00,000/- for  mental agony etc. and Rs.50,000/- towards litigation expenses in addition to the refund  of the amount  a sum of Rs.32,38,155.00.  Evidently, the District Consumer forum  did not have any  pecuniary jurisdiction  to deal with the matter.

At  this stage this forum observed   the interest of justice  would met if  the  complainant should have filed a fresh complaint before the  appropriate court    on same cause of action   in response to the  order, rather than filing a Revision/Appeal   against the said order.

For better appreciation  this forum relied citation  which are mentioned here under.

It is held reported in C.P.R-2010(2) page No.123 the Hon’ble National Commission where in observed “ In case, the  valuation made by the  complainant on the basis of  relief  claimed by  him, which is  neither  absurd nor imaginary but requires judicial  consideration, the court  can not  reject  the relief  at the outset without going   into its merits  reducing  the valuation  and directing  the return of the  complaint for  presentation before the appropriate Court”.

Further the complainant had purchased goods for his   business prupose in  order to resale in the market and incurred gain from his business as such the complainant is not a  consumer as per the definition U/S- 2(d)(i) of the C.P. Act, 1986.  Again  complainantcan not be regarded as consumer falling within the scope of the definition of the said expression contents in Section 2(d)(ii)_ of the C.P.Act.  The sale condition  of the invoice is enough to bring the notice of the complainant that he has purchased  the goods for his business profit.

 

The principal question that arises for our determination before going to the merits of the case  whether the complainant is a consumer within the definition of Section 2(i)(d)(ii) of the C.P. Act?  It is  held and reported in C.P.R.- 2002 (3) page No. 197 where in the hon’ble National Commission observed “Supply of goods purely for resale will not be in nature of deficiency in service and sale being for commercial  purpose- Complainant would not be a consumer”. Further another citation reported in 2011 Supreme Appeal  Reporter (Civil) page No. 126 where in the Hon’ble Supreme Court  observed “Goods have been purchased for commercial purpose, the complaint itself was not maintainable”.

            Again it is held and reported in C.P.R-2011 (4) page No. 457 the Hon’ble National Commission observed  wherein observed “Commercial users can not invoke jurisdiction  of District Consumer Forum for redressal  of their grievances”.

Prior  to delve in to the merit  of the case on outset  we have to  consider whether the complaint petition  is maintainable   under C.P. Act ?  While answering  the issue  we would like to refer the citation. It is held and reported in   1995 (2) CPJ page  No.1 in the case of Laxmi Engineering  Works  Vrs.  PSG Industries Institute    where in the  Hon’ble Supreme Court observed that  “if any  has obtained goods for commercial purpose  with a view to using   the  said goods for carrying on any  activity of profit, other than   exclusively for  self employment, such person is excluded from the purview of the  C.P. Act.” On this   ground  alone, the instant complaint is not maintainable and ought to be summarily  rejected.

.On perusal of the complaint petition  and on relying the citations of the  Hon’ble Apex Court it reflects that the complainant is not a consumer  coming under the purview of the C.P. Act. On perusal  of the petition  it is  revealed  that the complainant is a  dealer and selling the goods  purchased from the  O.P.  and that  goods purely for  resale  and the  sale being purely for commercial purpose. The grievance which was made by the complainant with regard to  refund  of deposited  amount, and damages does not comes under the purview of the C.P. Act, 1986 since the transaction has dealt with commercial  business. As well as it was not obligatory on the part of the DCDRF to be allowed Rs.42,88,155.00 as price of the units and compensation  to the complainant  as sought for by him exceeds the pecuniary jurisdiction of the forum.  U/S-11(1) subject to the other provisions  of this act the DCDRF shall have jurisdiction  to entertain complaints  where the value of the goods or services  and the compensation if any claimed does not exceed Rs.20 lakhs.

                In the present case in hand as per the complainant’s own averments  and  allegations, it is manifest that  the complainant has availed the services of   the O.Ps  purely  for commercial purpose  and,   therefore, they do not fall  within the definition of consumer, therefore  not entitled  to invoke the  jurisdiction  of this  forum  for the redressal of their  grievance.  It appears to us that present complaint  is nothing but an attempt  to mis use the process of this forum  with the sole object of saving  court fee payable in a civil suit.   

In view of the order passed by the  Apex Court  the complaint filed in the present case before the forum  is not maintainable. Accordingly, without  going into the merits of the case, this forum disposed the  case in limine  the above complaint petition  with liberty to the complainant to seek appropriate remedy available to him before the appropriate forum.

To meet the ends of justice  the following order is passed.

 

ORDER

            .                                                                                              

            In resultant the complaint  is directed to  return back  the complaint petition. Further   the complainant  is free to approach the court of competent  having  its jurisdiction.   Parties are left to bear their own cost.  Accordingly the case  is disposed of.

“The time spent before consumer forum shall be set-off  by  the  authority, where the proceedings are taken up, as per provision of Section-14 of Limitation Act for condoning the delay  as reported  in SCC 1995(3) page No. 583   the Hon’ble Supreme Court   in the case of Laxmi Engineering works Vrs. P.S.G.Industrial Institute where in observed   the above  point.Dictated and corrected by me  .             Pronounced on this         ^t.   Day of   December  2018.

   Member.                                          Member.                                                             President