1.    This instant Appeal is under section 51 of the Consumer Protection Act, 2019, (the Act”), against the Order dated 08.02.2023 passed by the learned Telangana State Consumer Disputes Redressal Commission, Hyderabad (“State Commission”) in CC No. 112 of 2018, wherein the State Commission dismissed the complaint of the Complainant.

2.      As per report of the Registry, there is 25 days delay in filing the Appeal. For the reasons stated in IA/5289/2023 the delay is condoned.

3.      For convenience, the parties in the present matter are hereinafter being referred to as per position held in the Consumer Complaint.

4.      Brief facts of the case, as per the complainant are that he is a businessman running Rohit Extractions Private Limited for livelihood, placed several orders for BOPP/HDFE woven sacks from the Opposite Party (OP). Initially, the quality of the sacks was satisfactory. However, when he placed a new order for 20,000 bags on 12.05.2017, the OP supplied 50,000 bags without authorization. Upon inspection, 34,000 of these bags were found to be of poor quality, and the complainant accepted only 16,000 bags, paying for them in full. Despite notifying the OP about the defects and asking them to collect the defective bags, the OP neither took corrective steps nor retrieved the defective bags. Instead, they issued him a legal notice demanding payment for those defective goods. He averred that the actions of OP amount to unfair trade practices and caused him financial loss and mental agony. His business and livelihood were at stake due to sub-quality products provided by OP. Being aggrieved, he filed a complaint before the State Commission seeking compensation of Rs.28,00,000 for loss of 16,000 bags supplied by the OP.

5.      In its Written Version, the OP manufacturer of BOPP/HDFE woven sacks admitted that they supplied bags to the complainant as per previous orders. They denied the claim that they are involved in the business of "Daksh feed design cylinder dye." The OP maintained that they delivered the products based on a prior oral agreement that the complainant would place an order for 2,00,000 bags. The complainant originally requested them to manufacture these bags, which required the creation of specific cylinders, and agreed to compensate for the cost through larger orders. The OP claimed that the complainant unilaterally cancelled the order after the bags were manufactured, which led to financial losses. There is no basis for the complainant’s claim that the bags were defective, as previous transactions never raised such issues. The complaint is an afterthought to avoid payment for 34,500 bags and is merely a tactic to defame the OP and avoid financial obligations.

6.      The learned State Commission vide order dated 08.02.2023 dismissed the complaint with the following observations:

“5. The Points for consideration are:

1. Whether the Opposite Party had supplied defective bags and poor quality Aqua seeds to the complainant?

2. Whether the opposite party was unfair and deficient by supplying more bags than the order placed?

3. Whether the complainant is entitled for the reliefs sought in the complaint?

4. If yes, to what extent?

6. Point No.1 & 2:

  The grievance of the complainant in a nutshell is that the opposite party who is into the business of manufacturing BOPP/HDFE woven sacks, had approached the complainant and requested the complainant to place the order for "Daksh feed design cylinder dye" and the said seeds are used by the complainant for their business purpose. Initially, when the complainant placed the order, he had received the product which was of good quality and condition. But on 12.05.2017 when the complainant placed an order for 20,000 bags, the opposite party had supplied 50,000 bags and out of the said 50,000 bags only 16,000 bags were of good quality and the remaining 34,000 bags were of poor quality and defective, as such the complainant sent a mail to the opposite party to take back the defective product, as the same are defective and that they are cancelling the order to the extent at 34,000, but the opposite party failed to pick up the defective product supplied by them and shockingly issued a Legal Notice, demanding the payment for the said defective bags/product, all these acts of opposite party have caused severe mental agony and loss to the complainant. And in support of his case, the complainant got marked Ex.Alto A15.

  Basically, the case of the complainant is that of a defective product supplied by the opposite party. Before venturing into the merits of the case, we would like to look into the definition of word "defect" and how the same is to be interpreted. As per Sec.2(f) of the Consumer Protection Act, 1986, the term defect is defined as under:

“Defect" means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or under any contract, express or implied or as is claimed by the trader in any manner whatsoever, in relation to any goods".

  And under Sec. 13(c), the Act, provides for an explanation for how to proceed with the complaint, when a defect is alleged in the complaint, which is as under:-

  "where the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, the District Forum shall obtain a sample of the goods from the complainant, seal it and authenticate it in the manner prescribed and refer the sample so sealed to the appropriate laboratory along with a direction that such laboratory make an analysis or test, whichever may be necessary with a view to finding out whether such goods suffer from any defect alleged in the complaint or suffer from any other defect and to report its findings thereon to the District Forum within a period of forty five days of the receipt of the reference or within such extended period as may be granted by the District Forum."

  And in the instant ease, though the complainant had filed the Purchase Orders, Tax Invoice and Legal Notices and mail communications, but had not placed any product i.e. bag, though it may not be required to send the same to lab, but at least the Commission would be in a position to check for the quality, color and other specification by seeing the product. But no such bag is placed before this Commission nor the complainant had examined any expert, who could speak about the quality of the bag. Mere statement that the bags supplied are of poor quality does not suffice, it is for the complainant to produce substantial evidence to prove that the product is defective or of poor quality. That apart, none of the documents filed by the complainant, describe any specifications of the bags. It is not the case of the complainant that he had placed an order mentioning certain specifications but the opposite party had used some other raw material, mere repeated statement that the bags are of poor quality and defective will not suffice, it is for the complainant to prove the defects, which had not been done by the complainant. Hence, we feel that the complainant had failed to prove with substantial evidence that the opposite party had supplied defective and poor quality bags.

  Coming to the supply of excess bags, against the order, Ex.Al, A2 and A4 are the Purchase orders and the Ex.A4 is the disputed purchase order, a perusal of the same reveals that the complainant had placed an order of 50,000 bags. It is the contention of the complainant s counsel that against this Ex.A4 order, the opposite party had supplied 50,000 bags without even a order being placed by the complainant. Ex.A3, A5 to A7 are the Tax Invoice issued by the opposite party and none of the Tax invoices bear the purchase order number, as such it is difficult to ascertain as to which invoice is issued against which Purchase order. However, Ex.A6 and A7 are the Tax Invoices raised after the purchase order under EX.A4 which is dated 12.05.2017 and a perusal of Ex.A6 and A7 establishes that the opposite party had supplied a total of 8,600+ 14,300 (22,900) bags were supplied by the opposite party, but, not 50,000 as contended by the complainant. That apart, even if the total bags supplied under Ex.A3, AS to A7 are calculate, the total bags supplied by the opposite parties is coming up to 34,500 only, but not 50,000 as claimed by the complainant. Hence, the contention of the complainant counsel that the opposite party had supplied excess bags does not hold water.

 In view of the above discussion and document, we are of the emphatic view that the complainants have failed to establish that the opposite party has delivered excess bags to the complainant. Therefore, we hold that the opposite party was neither deficient nor unfair in supplying bags in excess than the order placed. Under Ex.AS to A14, the complainant has filed the mail communications and Legal Notices exchanged between the complainant and the opposite party and the opposite party had specifically contended that as the complainant is due certain amount he had filed a Civil Suit, before the City Civil Court Hyderabad and under Ex.B16 filed the plaint copy to substantiate the same. Irrespective of whether the Suit is pending or disposed off, as such at this juncture, we are not discussing the mail communications and contents of Legal Notice, as any findings made on these documents may have an effect on the Civil Suit.

  This Commission being a Consumer Court, has a limited scope of defect and deficiency and unfair trade practice and the same have been dealt with.

  In view of the above discussions, we are of the considered view that the complainant had utterly failed to prove his case of defective bags supplied by the opposite party and also that the opposite party was unfair by supplying excess bags as against the order placed. Hence, the complaint is liable to be dismissed.

7. Point No.3:

In the result, the complaint is dismissed. However, there is no order as to costs”

7.      Being aggrieved by the impugned order dated 08.02.2023 the Complainant filed this Appeal no. 465 of 2023 praying as below:

a) Allow the FA and set aside the Order dated 03.11.2017 passed in CC No.24 of 2014 by the State Commission, and

b) Pass any other order or further orders as may by deemed fit and proper in the circumstances of the case.

8.      In the grounds of the instant appeal, the Appellant/Complainant has mainly contended the following:

A.  The complainant, as a self-employed individual running the firm is a consumer under the Consumer Protection Act, 2019, as the bags were purchased for business purposes to earn a livelihood.

B. The impugned order is contrary to law and evidence as the complainant successfully proved the averments by evidence (Ex.A1 to Ex.15) that the OP supplied defective bags.

C.  The OP delivered 50,000 bags despite they ordering only 20,000 bags, and the excess bags were of poor quality. Despite several requests, the OP did not retrieve the defective bags.

D.  The complainant placed an order for only 20,000 bags, but the OP delivered 50,000. The State Commission wrongly considered that only 22,900 bags were supplied. He accepted only 16,000 bags and paid. The remaining 34,000 are defective. He found defective bags in several orders and the OP failed to retrieve the defective bags and demanded payment. The OP demanded ₹37,44,074 for the bags, including defective and excess bags.

E. The civil suit OS No.22 of 2018 filed by OP for recovery is still pending and it has no bearing on his consumer complaint.

9.      In his arguments, the learned Counsel for the complainant reiterated the facts of the complaint and grounds of appeal, asserting that the grievance arises from the OP, who is in the business of manufacturing BOPP/HDFE woven sacks, delivering defective bags despite the complainant placing a specific order. Additionally, the OP, without consent, supplied more bags than ordered, and these excess bags were also of poor quality. The complainant requested the OP to take back the unused and excess bags, but the OP refused, leaving the bags in the complainant's warehouse, unused. They communicated vide email dated 08.06.2017 that while the bags received in November 2016 were of good quality, the subsequent batch received in March 2017 was of poor quality. The complainant requested the OP to remove the defective and excess bags, but instead the OP sent a legal notice on 06.10.2017, demanding ₹37,44,074. The complainant had already paid for the bags that were received in good condition and requested for removal of the poor-quality and excess bags, which were not ordered. The complainant further averred that an order for 20,000 bags was placed on 12.05.2017, but the OP delivered 50,000 bags without authorization. The complainant accepted 16,000 bags delivered on 10.05.2017, 16.05.2017 and 23.05.2017. However, some of these bags were defective. Moreover, the OP consistently supplied more bags than what was ordered. They, therefore, requested the return of 34,000 excess defective bags. On 03.06.2017, the complainant again emailed the OP requesting removal of excess stock from his premises. Later, the OP filed Civil Suit OS No. 22 of 2018 in City Civil Court, Hyderabad for recovery of the amount. The civil suit is unrelated to the consumer complaint, which focuses on the supply of defective bags and the delivery of excess bags beyond the ordered quantity. The documentary evidence in the form of Ex.A1 to Ex.15 was filed to corroborate that the OP supplied defective bags, constituting an unfair trade practice.

10.    On the other hand, Mr. Kumar Vora appearing for the Opposite Party in person reiterated the defence taken in the written version filed before State Commission and argued in favour of the impugned order. He contended that the complainant is not a consumer since the relationship between the complainant and Opposite Party is a business-to-business transaction, which falls outside the scope of consumer law.  He further argued that the allegations made by the complainant regarding the poor quality and excess delivery of bags are unfounded and contended that the complaint was filed as a counterblast to the civil suit initiated by the Opposite Party in the City Civil Court, Hyderabad. The counsel for the Opposite Party also requested the dismissal of the appeal with costs.  In support of his arguments, the counsel relied on the judgment in the case of Shrikant G. Mantri vs. Punjab National Bank, 2022 LiveLaw (SC) 197.

11.  I have examined the pleading and associated documents placed on record, including the order of the learned State Commission and rendered thoughtful consideration to the arguments advanced by learned counsels for both the parties.

12.  In the present case, the appellant claimed that the opposite party supplied 50,000 bags when only 20,000 were ordered, and that 34,000 of these bags were of poor quality. The appellant argued that the State Commission had erred in dismissing the complaint by not recognizing the evidence of defective and excess bags supplied. On the other hand, The OP contended that the bags were supplied based on a prior oral agreement for 2,00,000 bags, and the appellant had no evidence whatsoever to prove the alleged poor quality or excess supply of bags. They argued that the appellant filed the complaint to avoid paying for the bags.

13. With regard to issue of the manufacturing defect, it is clear that under Section 13(1)(c) of the Consumer Protection Act, towards determining the alleged inherent defect with respect to the goods supplied in question, an expert's report is mandatory and the burden of proof to establish the defect lies with the party alleging it. In this regard, Section 13(1)(c) of the Consumer Protection Act, 1986 is reproduced as under:

(c)   where the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, the District Forum shall obtain a sample of the goods from the complainant, seal it and authenticate it in the manner prescribed and refer the sample so sealed to the appropriate laboratory along with a direction that such laboratory make an analysis or test, whichever may be necessary, with a view to finding out whether such goods suffer from any defect alleged in the complaint or from any other defect and to report its findings thereon to the District Forum within a period of forty-five days of the receipt of the reference or within such extended period as may be granted by the District Forum;

14.    The appellant's contention that 34,000 of the bags supplied were of poor quality lacked substantial evidence. The appellant failed to have any sample of the defective bags sent for laboratory testing or analysis, as required under Section 13(1)(c) of the Consumer Protection Act, 1986. Additionally, no application for such testing was filed before the State Commission. Regarding the claim of excess supply of 50,000 bags supplied instead of 20,000, the appellant again failed to provide adequate proof to support this assertion. The opposite party, however, countered that the bags were supplied based on a prior oral agreement for a larger quantity of 2,00,000 bags in total. The learned State Commission, after considering the evidence, found no compelling evidence to suggest that the OP engaged in unfair trade practices or delivered an excess number of bags. Therefore, the appellant's arguments on the defective quality and excess supply were not upheld due to insufficient evidence.

15.    After due consideration of the entire facts and circumstances of the case, including the above deliberations, I do not find any reason to interfere with the detailed and well-reasoned order dated 08.02.2023 passed by the learned State Commission. As a result, the FA. No. 465 of 2023 is dismissed.

16.    There shall be no order as to costs. All pending applications, if any, also stand disposed of accordingly.