Order-9.
Date-13/07/2017.
Shri Kamal De, President.
This is an application u/s.12 of the C.P. Act, 1986.
Complainant’s case in short, is that the complainant is a partnership firm having its office at Bagda North 24 Parganas represented by its partner Shri Tapas Kumar Ghosh and Srikrishna Biswas. The complainant took up a project of building a cold storage at Bagda and almost has completed the construction of the said cold storage and it requires supply, design, installation and maintenance of cold storage. The OP is a company making business of supply, design, installation and maintenance of air-condition, cold storage and multi cold storage chilling plant, ice plant, A.C. Plant, electrical woks etc. having its office address at 35C, Girish Chandra Bose Road, 1st floor, P.S. Kasba, Kolkata – 700 014. The complainant contacted with the OPs for supply of design, installation and maintenance of its cold storage and the OP also agreed to do the said work. OPs entered into a work order with the complainant on 21-04-2016 for completion of the supply, design installation and maintenance of cold storage on certain terms and condition stipulated therein. The estimated cost of the entire work schedule was fixed for Rs.75 lakhs. The complainant as per the said work order paid an advance amount of Rs.10 lakhs through two transactions by way of RTGS from Bank, firstly on 16-02-2016 from Syndicade Bank, Circus Avenue Branch, Kolkata vide RTGS No.SYNBR02016021600 141767 and secondly on 04-04-2016 from Syndicate Bank, Circus Avenue Branch, Kolkata vide RTGS No.SYNBR92016040400308393 in favour of Voltek Refrigeration Co. and the said payment was acknowledged by the OPs by making signature in his own hand on 12-04-2016. The OP was supposed to complete the entire work within 30 days from the date of work order as per terms and condition of the work order. The validity of the said work order was 30 days. It is stated that the OP in spite of receiving an advance amount of Rs.10 lakhs neither started the work till date nor completed the work within the time of work order. the complainant, thereafter, requested the OP on several times to start the said work but the OP turned a deaf ear. After a few days OP also started to avoid the complainant and refused to receive the phone calls also. The complainant served a legal notice dated 28-09-2016 upon the OP for refund of advance money but OP refused the said letter and the said letter returned to the Ld. Advocate of the complainant with postal endorsement “not claimed”. The complainant has alleged deficiency of service as well as unfair trade practice against the OPs. The complainant has prayed for refund of the advance amount of Rs.10 lakhs along with compensation, litigation cost and other reliefs in terms of prayers of the petition of complaint. Hence, this case.
Despite sending of summons and subsequent newspaper publication, OPs neither appeared nor contested the case and the case has proceeded ex parte against the OPs.
Point for Decision
- Whether the case is maintainable in its present form and prayer?
- Whether the complainant is entitled to get the relief as prayed for?
Decision with Reasons
We have perused the documents on record i.e. Xerox copy of estimated cost of multi cold storage and the copy of endorsement of advance payment of Rs.10 lakhs thereon, Xerox copy of statement of Syndicate Bank and other documents on record.
It appears that the complainant entered into a work order with the OP on 21-04-2016 for completion of supply, design, installation and maintenance of cold storage on certain terms and conditions at an estimated cost of Rs.75 lakhs. So, the value of the goods or services appears to be as per own version of the complainant and the document of estimated cost for multi cold storage is Rs.75 lakhs. Section 11 of C.P. Act, enunciates that the District Forum shall have jurisdiction to entertain complaints where the value of goods or services and the compensation if any, claimed does not exceed Rs.20 lakhs. The value of the services involved in this case exceeds Rs.20 lakhs apart from claim for compensation of Rs.9 lakhs as claimed by the complainant. So, we think that value of services and the compensation exceeds the pecuniary limit of this Forum.
Moreover, it appears that the complainant is a partnership firm engaged in cold storage business. The definition of consumer is envisaged u/s.2(1)(d) of C.P. Act and on plain reading of the aforesaid definition, it would be seen that the definition itself curves out an inbuilt explanation to the effect that if the services of the op are hired or available for commercial purpose then the hirer of the service would not fall within the definition of the consumer. The complainant has not also pleaded in the petition of complaint that the partnership firm is being run for the purpose of earning livelihood. We are afraid the complainant cannot be treated as consumer as such.
We think that the complaint, as such, is not maintainable and is liable to be dismissed.
Consequently, the case merits no success.
Hence,
Ordered
That the instant case be and the same is dismissed ex parte but on merit against the OPs being not maintainable in C.P. Act, 1986 as amended.
No order as to cost.
