Haryana

StateCommission

A/1244/2014

Prashant Sarnaik - Complainant(s)

Versus

M/s Park and Paul Agro Products - Opp.Party(s)

18 Oct 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA,PANCHKULA

 

First Appeal No.1244 of 2014

Date of Institution: 29.12.2014

                                                          Date of Decision: 18.10.2016

 

1.      Prashant Sarnaik, Age Adult, Occupation Business, Director/Partner of M/s Avdhoot Agro Processors & Engineers Pvt. Ltd., having office address: 1678, Amit Plaza, Khajinavihir Chowk, Opp. S.P.College, Above Tapadia Stores, Sadashiv Peth, Pune411030 (Maharashtra) Cell No.9822043274 E-mail id: 2.      Mrs. Dhanashree Prashant Sarnaik, Age Adult, Occupation Business, having office address: 1678, Amit Plaza, Khajinavihir Chowk, Opp. S.P.College, Above Tapadia Stores, Sadashiv Peth, Pune-411030 (Maharashtra)

…..Appellants

Versus

 

M/s Park and Paul Agro Products, having its office address at 12, Netaji Market, Near Police station, City Panipat.

        …..Respondent

 

CORAM:             Mr.R.K.Bishnoi, Judicial  Member

                              Mrs. Urvashi Agnihotri, Member

 

Present:-    Mr.M.K.Sood, Advocate counsel for the appellant.

                   Mr.Sandeep Ghanghas, Advocate for the respondents.

 

Appeal No.889 of 2015

Date of institution:- 24.09.2015 and 15.10.2015.

Date of Decision:- 18.10.2016

M/s Park and Paul Agro Products, 12 Netaji Market, Near Police station, City Panipat, through its Director Bhavneet Singh, Director/partners.

…..Appellant.

Versus

1. Prashant Sarnaik, Director/Partner of M/s Avdhoot Agro Processors & Engineers Pvt. Ltd., 936 Pirangut Opposite ST stated Pirangut, Pune-412111, office at Avdhoot Agro Processor & engorde Pvt. 1678, Amit Plaza, Khanjinavihir Chowk, Opposite SP college, above Tapdia Stores, Sadashiv Peth, Pune 411030.
2. Smt. Dhanashree Wife of Prashant Sarnaik,  resident of M/s Avdhoot Agro Processors & Engineers Pvt. Ltd., 936 Pirangut Opposite ST Stand, Pirangut, Pune 412111 office at Avdhoot Agro Processor & Engorde Pvt. 1678 Amit Plaza, Khajinavihir Chowk, Opp. S.P.College, Above Tapadia Stores, Sadashiv Peth, Pune-411030.

…..Respondents

 

CORAM:             Mr.R.K.Bishnoi, Judicial  Member

                              Mrs.Urvashi Agnihotri, Member

 

Present:-             Mr.Sandeep Ghangas, Advocate counsel for the   appellant.

Mr.M.K.Sood, Advocate counsel for the   respondents.

                                                 ORDER

R.K.BISHNOI, JUDICIAL MEMBER:

 

Vide this order above mentioned two appeals bearing Nos.1244 of 2014 and 889 of 2015 will be disposed off as they  have been preferred against order dated 21.11.2014 passed by the District Consumer Forum, Panipat (in short ‘District Forum’).

2.      Alongwith the appeal No.889 of 2015 an application was filed for condonation of delay of 294 days on the ground that due to non-availability of partner/Directors meeting of Board of Directors could not be held earlier to authorize appellant to file appeal. Delay of 294 days is due to bonofide reason and may be condoned.

3.         A period of 30 days has been provided for filing an appeal against the order of the District Forum. The proviso therein permits the State Commission to entertain an appeal after the expiry of the period of 30 days if it is satisfied that there is “Sufficient cause” for not filing the appeal within the prescribed period. The expression of sufficient cause has not been defined in the Act rightly so, because it would vary from facts and circumstances of each case.

4.                As per facts available on the file, it is clear that applicant was not pursuing the matter properly. In appeal No.1244 of 2014 filed by Prashant Sarnaik and another, applicant appeared  on 13.05.2015.  In this way the fact of decision and appeal was to his notice, but, even then appeal was not filed.  Even if applicant-appellant is a limited company it is no excuse to condone delay on the ground that due to non-availability of Directors Board meeting could not be held to decide  about filing of appeal. When authority was already granted to him to put in appearance what was the hitch in granting permission to file appeal.  It appears that this plea has been raised just to cover inordinate delay. 

5.         The inordinate delay of 294 days cannot be condoned  in view of above discussion and in the light of the following judgments passed by the Hon’ble Apex Court.

The Hon’ble Supreme Court in case Bikram Dass Vs. Financial Commissioner and others, AIR, 1977 Supreme Court 1221 has held that;

“Section 5 of the Limitation Act is a hard task-master and judicial interpretation has encased it within a narrow compass. A large measure of case-law has grown around S.5, its highlights being that one ought not easily to take away a right which has accrued to a party by lapse of time and that therefore a litigant who is not vigilant about his rights must explain every days delay.”

The Hon’ble National Commission in case Government of U.T. Electricity Department & Others versus Ram Lubhai, II(2006) CPJ 104 has held that:-

“Consumer Protection Act, 1986 – Section 15 –Appeal –Maintainability – Limitation –Condonation of delay– Resjudicata –Appeal filed after a delay of 44 days –Plea of procedural delay in getting approval for filing appeal – Appeal filed by complainant against order of District Forum decided and copy of order dispatched to parties prior to filing of appeal by opposite party –Appeal and application for condonation of delay dismissed –Matter once finally concluded by any Court cannot be reopened by same Court.”

          In R.B. Ramlingam Vs. R.B. Bhavaneshwari 2009 (2) Scale 108, it has   been observed:

         “We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.”

      In Ram Lal and Ors.  Vs.  Rewa Coalfields  Ltd., AIR  1962 Supreme Court 361, it has been observed;

“It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”

         

    Hon’ble Supreme Court in  Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation reported in (2010) 5 SCC 459 held as under;

“We have considered   the respective    submissions.  The law of limitation is founded on public policy. The   legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that   they    do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same   time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.”       

    In (2012) 3 SCC 563 Post Master General & Ors. Vs. Living Media India Ltd. and Anr. Hon’ble Apex Court has not condoned delay in filing appeal even by Government department and observed that condonation of delay is an exception and should not be used as an anticipated benefit for the Government departments.

    In 2012 (2) CPC 3 (SC) – Anshul Aggarwal Vs. New Okhla Industrial Development Authority, Hon’ble Apex Court observed as under:-

“It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986, for filing appeals and revisions in Consumer matters and the object of expeditious adjudication of the Consumer disputes will get defeated, if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras”.

6.      Complainant alleged that it was registered company and was being administered for all indent and purpose by directors having it’s office at Panipat. In the month of August 2012. Opposite Parties (O.Ps.) came to complainant at Panipat and proposed to sell machinery i.e. Boiler of 500 Kgs-1, Dryer of 250 Kgs-2, Auto cutters-8, RCN Sorter-1, Vibrator-1, Auto Grading M/C(IV)-1, Auto Grading M/C(P)-1 of good quality.  Their proposal was accepted and they paid Rs.10/- lacs in advance for the purpose of aforesaid machinery.  On 21.10.2013 O.ps. sent the aforesaid machines and remaining payment was also made. The machines were not working as per specifications. There was one defect or another time and again. An information was given to O.Ps. immediately and ultimately letter dated 07.06.2013 was also written, but, to no avail.  O.Ps. be directed to refund Rs.Seventeen lacs already paid to them alongwith interest to the tune of Rs.2,34,000/- as mentioned in the complaint.

7.      O.ps. filed reply controverting averments of the complainant and alleged that the complainant was not consumer as defined under section 2 of the Consumter Protection Act, 1986 (In short “Act”) because it was carrying business for profits and the machines were purchased for commercial purpose. The District Forum, Panipat was not having jurisdiction to try the complaint because as per invoice the dispute was subject to Pune Jurisdiction.  There was no defect in the machinery and the same were working properly.  Total quotation was of Rs.56,20,500/- and some discount was offered by the respondents for the entire order and not on the part of it.  Machinery worth Rs.11,00,000/- was sold to complainant. As complicated questions were involved so the matter be referred to civil court for adjudication. Other averments were also denied and requested to dismiss the complaint.

8.      After hearing both the parties, learned District Forum allowed the complaint and directed as under:-

                             “We hereby allow the present complaint with the direction to opposite parties to repair the machineries in question free of costs. Cost of litigation quantified at Rs.5500/- is also allowed to be paid by the opposite parties to complainant.”

9.      Feeling aggrieved therefrom O.Ps. as well as complainant have preferred aforesaid appeals.     

10.    Arguments heard.  File perused.

11.     At the very outset learned counsel for O.Ps. vehemently argued that complainant is a company running the business for profits.  The machinery was purchased for commercial purpose to earn profit so it was not covered by the definition of consumer and complaint was not maintainable. In support of his arguments he placed reliance upon the opinion of Hon’ble Supreme Court expressed in Civil Appeal No.10650 of 2010 (arising out of SLP © No.9526 of 2010 titled as Birla Technologies ltd. Vs. Neutral Glass and Allied decided on 15.12.2010.

12     On the other hand learned counsel for the complainant vehemently argued that the machines were supplied on 21.01.2013 and they started mal-functioning within one year warranty period.  As the machines were covered by warranty so it was covered  by definition of consumer and complaint was very much maintainable.  In support of his argument he placed reliance upon opinion of Hon’ble National Commission in Viewtech Imaging Equipment Pcvt. Ltd. & Anr.  II (2008) CPJ 240 (NC). 

13.    As per arguments of complainant counsel it cannot be presumed that he was consumer because no warranty certificate is produced to show that articles/machinery was under warranty. 

14.    More so Hon’ble Supreme Court has clearly opined  in Birla Technologies Ltd. case (supra) that any articles purchased for commercial purpose after the amendment of the Act in 2003 is not covered by the definition of consumer even if there is  warranty. For ready reference the relevant portion is reproduced as under:-

“6. We have gone through the impugned   judgment, wherein there is a clear cut finding that the software in question amounted to sale of gods by the appellant to the respondent for commercial purpose and as such the respondent would be excluded for being considered as a ‘consumer’ under section 2 (i) (d) (i) of the Act./ However, the National Commission then proceeded to hold that there was a warranty period of one year in the year 2000 and as such since the complainant was filed on 01.08.2000, i.e. prior to the amendment of Section 2 (i) (d) (ii) by the Amendment Act, 2002, a person hiring or availing of any services for a consideration was not excluded even though the services were availed for any commercial purpose. In that view, it proceeded to hold that if there was any deficiency in service during the warranty period the complaint could be maintained before the consumer Forum for the said purpose. For this, the National commission relied on its judgment in Meera Industries, Howrah Vs.Modern constructions, Howrah passed in R.P.No.1765 of 2007.

7.      Shri U.U. Lalit, learned Senior Counsel appearing on  behalf of   the appellant pointed out that there is a basic error committed by the National Commission inasmuch as it has proceeded on the basis that the complaint was filed on 1.8.2000, which was prior to the amendment of Section 2(1)(d)(ii) by the Amendment Act, 2002. Shri Lalit pointed out that the complaint in fact was filed on 26.6.2003 i.e. after the amendment of the said Section, which came on 15.3.2003. The learned Senior Counsel, therefore, submitted that even if there was any service which was hired from the appellant in view of the finding of the National Commission that the goods themselves were purchased from the appellant for commercial purposes, there would be no question of the service being included in Section 2(1)(d)(ii) particularly in view of the amendment. The learned Senior Counsel pointed out that the service offered by the appellant was only for proper working of the Modules which were included in the software and as such was for commercial purpose. He, therefore, pointed out that the order of the National Commission holding the complaint maintainable to the extent of services offered is clearly incorrect, as it proceeds on the wrong assumption that the complaint was filed on 1.8.2000 i.e. before 15.3.2003 when the amendment was made to Section 2(1)(d)(ii).”

          From the perusal of these paras it is clear that if any article is purchased for commercial purpose after the amendment in year 2003 a purchaser cannot be considered as consumer. In the present case, the articles were delivered in the year 2013.  Complainant cannot derive any benefit from the opinion of Hon’ble National Commission expressed in Viewtech Imaging Equipment Pvt. Ltd. & Anr. case (supra) because in that case articles were purchased in the year 1999 i.e. much before the amendment in the year 2003.  Due to this reason it was opined that if there is warranty a purchaser is to be considered as consumer even if the articles are purchased for commercial purpose. As per view of Hon’ble Supreme Court aforesaid case law  complainant cannot be considered as consumer and the complaint was not maintainable.  Learned District Forum failed to take into consideration this aspect, so the complaint as well as appeal No.889 filed by complainant are dismissed  as time barred and appeal No.1244 of 2014 filed by O.Ps. is allowed and impugned order is set aside.

15.    The statutory amount of Rs.2750/- deposited at the time of filing of the appeal bearing No.1244 of 2014 be refunded to the appellants against proper receipt.

16.    The original judgement be attached with appeal No.1244 of 2014 and certified copies be attached with appeal No.889 of 2015.

 

October 18th, 2016                 Urvashi Agnihotri,                   R.K.Bishnoi,                                                               Member                                  Judicial Judicial Member                                            Addl. Bench                            Addl.Bench                

S.K.