Complaint filed on: 25.06.2013

                                                      Disposed on: 08.03.2017

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027       

CC.No.1186/2013

DATED THIS THE 08^th MARCH OF 2017

PRESENT

SRI.H.Y.VASANTHKUMAR, PRESIDENT

SRI.D.SURESH, MEMBER

SMT.N.R.ROOPA, MEMBER

Complainant/s: -                           

M/s. United Spirits Ltd.,

UB Tower, No.24,

Vittal Mallya Road,

Bengaluru-560001.

Rep by its

Senior General Manager – Legal and Authorized Representative Mr.Mahesh Nedungadi

By Adv. Sri.S.R.Shivaprakash  

V/s

Opposite party/s:-    

M/s.Stitch Craft (India)

No.113, Tilak Khand,

Giri Nagar, Kalkaji,

New Delhi

Rep by its Proprietor

Mr.Yogesh Sethi.

By Inperson

ORDER

Under section 14 of consumer protection Act. 1986.

SRI.H.Y.VASANTHKUMAR, PRESIDENT 

            The Complainant has been alleging defects in the supplied T-shirts of Opposite party company and thereby has claimed the total compensation of about Rs.6,50,000/-

          2. The case of the Complainant in brief is that it being the largest alcoholic beverage manufacturing and marketing company having its own brands, in order to engage sales promotion, arranged for e-Auction through consultancy firm “Consus consulting group” and ordered 3000 T-shirts with specification and conditions, accepting the finalization of its transaction and contract on 18.11.11 for the total tender amount of Rs.5,25,815/-. The Opposite party being the successful bidder, delivered the T-shirts in first batch during January 2012 and they were found to be defective including the complaint of shrinkage by about 20% to 30% and only 427 shirts were utilized and they were also found to be defective. The remaining 1868 T-shirts were asked to be taken back communicating through e-mails. It had made payments of Rs.93,800/- on 04.02.12. There were several other complaints also namely continual delay in supplies which went till the end of June 2012 (5 to 6 months delay), quantity mis match in invoice against the actual delivery and also quality issues. If said T-shirts were to be used for promotion of other brands it would result negative publicity, loss of reputation. The Opposite party has committed material breach of the terms & conditions of the contract resulting from reverse auction. The Opposite party had assured but failed to replace with fresh stocks. Hence this complaint is filed.

          3. The Opposite party has filed the version denying the allegations made against him and questioning the maintainability of this complaint for want of territorial jurisdiction and for want of locus standi as consumer. The e-Auction arose at Delhi and therefore Delhi district consumer forum alone has jurisdiction. The result of the agreement between them also makes the disputes subject to Delhi jurisdiction. The arbitrator proceedings initiated regarding the recovery of the balance amount of Rs.3,10,000/- as due from the Complainant and it is still continuing at Delhi. There was no objection at the time of delivery of the goods and with malafide and dishonest intention and with the sole objection of avoiding and delaying the payment, these grounds are taken. The Opposite party had visited Bengaluru office of the Complainant on 22, 23 & 24 of the July 2012 and despite his efforts no officer attended to him but he received the balance amount of Rs.3,10,000/- and then also he had no opportunity to see the alleged deficiency or defects about the transaction of T-shirts. There was no occasion of receiving of any complaint by the users of the shirts who got it free of charge. The Complainant has sold away its business and brands to a foreign company and they have no vested interest in the business and brands and this complaint is liable to be dismissed with costs.

          4. The Opposite party had submitted the version through registered post and it was brought to the notice of the Complainant in November 2016 and thereafter the Complainant also remained absent before the forum.

          5. The Complainant has filed the affidavit evidence relying on Ex-A1 to A6 xerox documents and has filed written arguments and additional written arguments within April 2015 itself. Perused the records.

          6. The consumer disputes that arise for consideration are as follows:

1. Whether the Complaint is not maintainable as contended by the Opposite party ?
2. Whether the Complainant establishes the alleged defects in the T-shirts supplied by the Opposite party ?
3. To what order the parties are entitled ?

7. Answers to the above consumer disputes are as under:

1) Affirmative

2) Does not survive for consideration

3) As per final order – for the following      

REASONS

          8. The undisputed facts reveal that the Complainant being the manufacturing and marketing company in order to promote different brands of its beverages, through its consultant “Consus consulting group” invited the bidders for the reverse auction. In the e-Auction placed the orders for 3000 T-shirts. The auction was held on 18.11.11, Friday and the Opposite party became the successful bidder as supported by Ex-A1, A2 & A3 copies of e-mail transactions and the bidding event information.  As per Ex-A4 purchase order copy, the Opposite party was directed to deliver the shirts to Bengaluru. The Complainant has produced the set of xerox copies of the photos/Ex-A5 complaining that the said delivered shirts are having defects of various counts.  The Complainant filed its affidavit evidence through its power of attorney holder by virtue of Ex-A6 document.

          9. Consumer Dispute No.1: It is true that there is no affidavit evidences or written arguments by Opposite party side but the contention taken by the Opposite party in its version relates to the legal points and hence they have to be considered by this forum regarding the territorial jurisdiction and other points.

10. The Complainant has relied on the provisions of Information Technology Act 2000. The downloading and uploading of the infringing contents according to the Complainant in connection with e-Auction/contract arose at Bengaluru also. The cause of action took place at Bengaluru after the Opposite party sent the goods from Delhi.

          11. With regard to the main allegation that the alleged defects of the T-shirts, the Complainant had to deposit the sample of received stocks of T-shirts with expert report to establish as to how it become defective as provided u/s 13(1)(c) of CP Act. Mere production of xerox copies of the photos of certain T-shirts are not sufficient.

12. In order to file the complaint he should become the consumer. There was office objection at the time of the filing also seeking the explanation about his locus standi to file this complaint, pointing out its commercial transactions. The Consumer is defined u/s 2(d). The Complainant is a leading manufacturing and marketing company relating to beverages with number of brands. Its object is to promote its sales.  The Complainant itself is the commercial entity and its object is also commercial one. All the disputed transactions are commercial transactions made for getting more profit. The contract of consulting “Consus”, arranging of e-auction and accepting of the bidders through reverse auction were all the higher level of commercial transactions.  Such transactions disqualify the Complainant to describe himself as the consumer. The consumer so defined does not include a person, who, in case of goods obtains, such goods for re-sale or for any commercial purpose or who in case of service, avails of such service for any commercial purposes. The word commercial purpose has a wide connotation and alleged transaction is also not for the livelihood.  Hence the Complainant has no locus standi to be called himself as a consumer and to file this case. On this ground alone the complaint becomes not maintainable.

13. In the result the Complainant has failed to establish how this complaint becomes maintainable. Hence the Consumer Dispute no.1 is answered in the affirmative.

14. Consumer Disputes no.2 & 3: In view of the reasons and findings of the Consumer Dispute no.1, the Consumer Dispute no.2 does not survive for consideration and accordingly the Complainant deserve to get the following order.

ORDER

          The Complaint of the Complainant is here by dismissed. No order as to costs.

          Supply free copy of this order to both the parties. 

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 8^th day of March 2017).

Copies of Documents marked on behalf of Complainant:

Copies of  Documents marked on behalf of Opposite party