COMPLAINT FILED ON:28.07.2009

DISPOSED ON:01.12.2011

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

1^st DAY OF DECEMBER-2011

       PRESENT:- SRI. B.S.REDDY                PRESIDENT                        

                         SMT. M. YASHODHAMMA         MEMBER    

                         SRI.A.MUNIYAPPA                   MEMBER

O R D E R

SRI. B.S.REDDY, PRESIDENT

The complainant filed this complaint u/s. 12 of the C.P. Act of 1986 seeking direction against Opposite Party (herein after called as OP) to take back un used substandard goods supplied under invoice No.29 dt.11.04.2009 to return the cheques bearing No.182831 and 182832 dt.12.04.2009 without making use of the same to the complainant and to pay damages, financial loss, Special and general damages, loss of works as narrated in all amounting to a tune of Rs.20,00,000/- and costs of the litigation on the allegation of deficiency of service on the part of the OP.

2. The case of the complainant to be stated in brief is that:-

The complainants’ company is registered under Indian Companies Act. The complainant during the course of business placed a Purchase Order with the OP to supply and fixing of roofing sheet and roof cladding on the newly constructing building at the complainant’s factory site situated in Sy.No.213, 214 and 218 of Pydeti Village, Parigi Mandal, Hindupur Taluk, Ananthpur District, State of Andra Pradesh on 07.02.2009. OP collected an amount of Rs.3,64,458/- and accepted the order. The complainant took delivery of the material on 11.04.2009 under invoice No.29 from at Hosur, State of Tamil Nadu. As per the terms and conditions of supply, the complainant has issued three cheques for balance amount bearing cheque Nos.182830 dt.11.04.2009, No.182831 dt.12.04.2009 and No.182832 dt.13.04.2009 for Rs.4,12,540=00/-, Rs.97,125/- and Rs.96,126/- respectively in favour of OP. The complainant after taking delivery of the material, noticed that the material supplied is not as per the specifications specified in the purchase order and the quality of the material is also poor and as per Purchase Order, the OP has to start errection works i.e.,(roofing and cladding works) as soon as the material reached at complainant’s site at Hindupr. Even after repeated requests, OP never bothered to replace the material and neglected the complainant’s requests. Thus, the complainant advised his bankers to stop payment covered under cheque No.182831 and 182832. OP without rectifying its mistakes and without set righting the same, despite the complainant made his persistent requests through phone calls and also by written correspondences, Op not taken any steps to set right the same as the materials supplied by the OP is quiet contrary to the purchase order dt.07.02.2009 and despite the OP received a sum of Rs.3,64,458/- on 10.02.2009. Though the complainant has ordered for 0.5 mm thickness panel sheet, but OP has fabricated 0.47 mm thickness and marked as 0.5 mm thickness purposefully i.e., 0.03 mm less thickness has been fabricated and that will definitely effect the strength of the building as well as cost of the material. Thus, OP has violated the norms of the Consumer Act as the OP has cheated to his own customer i.e., the complainant. OP has purposefully not supplied materials as per specifications mentioned in the supply order and cause total damages and loss of Rs.25,000/- to the complainant.  The goods supplied by OP is substandard material. The complainant is entitled for compensation and damages i.e., Special and General Damages, Loss effected to the complainant during tenure of the contract, in view of invariable material supplied by the Op in all amounting to a tune of Rs.20,00,000/-. OP has presented the cheques bearing No.182832 and 182831 and copy obtained Bank Shara from his bankers and issued an untenable legal notices dt.30.04.2009 and threatened that, if the amounts are not paid, OP will sue the complaint Under Section 138 of NI Act.  The complainant has suitably replied for the said notice. Hence, the complaint seeking the relief’s stated above.

3.   On appearance, OP filed version contending that the complainant is not a ‘Consumer’ within the meaning of Section-2(d)(1) of the Consumer Protection Act 1986 in so for as the complainant being a company incorporated under the Companies Act, 1956 purchased the goods in question wholly for commercial purpose. Admittedly, the complainant and Op are engaged in a commercial transaction pursuant to placing of a purchase order dt.07.02.2009 for the purchase of roofing sheet and roof cladding at its factory in Ananthapur District of Andhra Pradesh. The purpose of supply and usage is admittedly for he factory of the complainant, which is manifestly the commercial purpose. The goods supplied by the OP have been used for commercial purpose and not exclusively for the purposes of earning livelihood or self employment of the complainant. The complaint is liable to be dismissed. The goods have been supplied to the factory of the OP located in Andhra Pradesh and hence the cause of action has not arisen within the jurisdiction of this Hon’ble Forum. The goods supplied do not have any guarantee or warranty period and have ben sold on principal to principal basis for he commercial usage. Furthermore, the complainant herein in has not paid the total sale consideration for the supply, even though the goods have been delivered on dt.11.04.2009. The complainant after receiving the goods in question has deceitfully issued stop payment instruction to his banker in respect of cheque No.182831 and 182832. OP has issued the notice as per Section-138 of Negotiable Instruments Act 1881. Therefore, present dispute is commercial purposes involving the offences committed Under Section-138 of Negotiable Instruments Act. To cover-up this aspect the complainant has instituted the present complaint for alleging the abuse of process of law in the present manner. The complainant has already used the supplied goods for commercial purposes. However in order to avoid making payments in respect to OP that the goods were sold under scrap, which is an utter falsehood. Even before taking the delivery of goods he complainant has thoroughly inspected the goods and satisfied himself, used the goods in the commercial purposes and benefited from it. The complaint is liable to be dismissed on the ground that it exceeds the pecuniary jurisdiction of this Hon’ble Forum. The relief’s sought is to return the two cheques worth 1,93,251/- and to award damages for the, loss etc to the tune of Rs.20,00,000/- and the cost of the proceedings. The aggregate relief sought is more than Rs.21,93,251/- and hence the complaint is beyond the jurisdiction. The complainant has represented that it has made all payments in its letter dt.15.04.2009 and that the material has arrived on 12.04.2009, forced and cajoled the Op to fix the goods immediately. Despite the fact that the OP had not received the balance payment as agreed, the OP proceeded on with the erection works. In this letter, the complainant acknowledges having paid the amounts upon inspection. In fact the inspection was carried out on 11.04.2009 and the payment of Rs.97,125/- and Rs.96,126/- was to be made pursuant to the inspection. In fact, on presenting of these two cheques the same were dishonored.

It is denied that the materials supplied does not conform to the requirements of the complainant and that OP caused damages to the tune of Rs.25 lakhs and OP is guilty of breach of contract. There is no cause of action for the complaint, the complainant having cheated the OP has tried to make out a consumer case. Hence it is prayed to dismiss the complaint with exemplary costs.

4. The complainant in order to substantiate complaint averments got filed affidavit of its Managing Director. One N.Raveendra working as Credit Controllers in OP filed affidavit evidence in support of defence version.

5. The complainant filed written arguments.

6. Arguments on both sides heard.

7. The main objection of OP is that the reliefs sought in the complaint filed by the complainant is more than Rs.20,00,000/-. Hence this Forum has no jurisdiction to entertain the complaint. In view of this preliminary objection taken, the point for consideration is:

(1)Whether the value of the goods and the compensation claimed exceed Rs.20,00,000/- and this Forum has no pecuniary jurisdiction to entertain the complaint.

8.We record our findings on the above point in Affirmative:-

R E A S O N S

9. The preliminary objection of OP regarding pecuniary jurisdiction is that the relief’s sought by the complainant is to return the two cheques worth of Rs.1,93,251/-and to award damages, loss etc to the tune of Rs.20,00,000/- and the cost of the proceedings.  Thus the aggregate relief’s sought is more than Rs.21,93,251/-. Hence this complaint is beyond jurisdiction.

            It may be noted that at Para-7 of the complaint, the complainant has claimed compensation of Rs.20,00,000/- as special and general damages, loss effected to the complainant during the tenure of the contract, in view of invariable material supplied by the OP in all amounting to the tune of Rs.20,00,000/-. The complainant has also claimed the direction to OP to take back unused, substandard goods supplied but the value of the same is not stated. Further the direction sought to the OP is to return the cheques bearing No.182831 and 182832, dt.12.04.2009 and 13.04.2009 without making use of the same to the complainant. The said cheques were in sum of Rs.96,926/- cheque No.182832 and Rs.96,125/- cheque No.182831. The total value of both these two cheques is Rs.1,93,251. Thus the aggregate reliefs sought is more than Rs.20,00,000/- as such this forum has no pecuniary jurisdiction to entertain the complaint.

            Secion11(1) of the Act provides that subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain the complaint where the value of the goods or service and the compensation if any claimed does not exceed Rs.20,00,000/-.

The complainant has claimed damages to the tune of Rs.20,00,000/-and for return of two cheques. The total value of both those cheques is Rs.1,93,951/-. Thus the total value of the goods (cheques) and the damages claimed comes to Rs.21,93,251/-. In view of the same, we are of the view that this Forum has no pecuniary jurisdiction to entertain the complaint. The complaint is to be returned to the complainant to present the same before the Hon’ble State Commission. Accordingly we proceed to pass the following:

O R D E R

The complaint is ordered to be returned to the complainant to present before the appropriate Forum on account of the same being exceeding pecuniary jurisdiction of this Forum.

Considering the nature of dispute no order as to costs.

        Send copy of this order to both the parties free of costs.

(Dictated to the Stenographer and typed in the computer and transcribed by her, verified and corrected, and then pronounced in the Open Court by us on this the 1^st day of December-2011.)

MEMBER                            MEMBER                          PRESIDENT

Cs.