Punjab

StateCommission

A/33/2015

Standard Corporation India Ltd. - Complainant(s)

Versus

Municipal Council Barnala - Opp.Party(s)

Tribhawan Singla

25 Aug 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL COMMISSION,  PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH

                                     

                   First Appeal No.33 of 2015

 

                                                          Date of Institution: 12.01.2015      

                                                          Date of Decision :  25.08.2015

 

Standard Corporation India Ltd., (formerly Standard Combines Pvt. Ltd.), Standard Chowk, Barnala, Tehsil and District Barnala through its Authorized Signatory Sh. Rajesh Kumar, Deputy General Manager (Legal) of the Company

                                                                                                                                                                                                                                                                                                                                                        …..Appellant/Complainant

                                               

                                      Versus

 

1.       Municipal Council, Barnala through its :

 

i)        Administrator

ii)       Executive Officer

 

2.       M/s Nanak and Company, Samrala Head Officer, Barnala Octroi Contractor, Municipal Council, Barnala through its Partner Ranjit           Singh Rana, resident of Kalala, Tehsil Barnala, District Barnala.

 

3.       Shri. Ranjit Singh Rana, resident of Kalala, Tehsil Barnala, District  Barnjala, Partner of M/s Nanak & Company, Samrala Head              Office,  Barnala, Octroi Contractor, Municipal Council, Barnala.

 

4.       Paramjit Singh Gaiani son of Sh. Joginder Singh, resident of Narain  Nagar, Dhanaula Road, Barnala, Tehsil and District Barnala.

 

5.       Surjit Singh son of Sh. Dalwar Singh, resident of Chaya Patti, VPO Chhiniwal Kalan, Tehsil and District Barnala. 

 

 

                                                                                                                                      …  Respondent/Opposite Parties

 

 

First Appeal against order dated 22.12.2014 passed by the District Consumer Disputes Redressal Forum,  Barnala

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

          Shri. Harcharan Singh Guram, Member

 

 

 

Present:-

 

          For the appellant                      : Sh.Harsh Goyal , Advocate  

         

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellant of this appeal (the complainant in the complaint) has directed this appeal against the respondents this appeal (the opposite parties in the complaint), challenging order dated 22.12.2014 of District Consumer Disputes Redressal Forum Barnala, dismissing the complaint of the complainant.  The instant appeal has been preferred against the same by the complainant now appellant in this appeal.

2.      The complainant has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs, on the averments that complainant was previously a Small Scale Industry Unit for earning livelihood since 1991. The complainant/company engaged in manufacturing agricultural implements. Sh. Rajesh Kumar is Deputy General Manager (Legal) of complainant/company and he has been authorized to file the complaint, vide resolution dated 25.04.2008. The complainant/company has been engaged in manufacturing farming equipments including Combine Harvestor, Tractors, reapers, three wheelers and cranes etc and for manufacturing purposes. The complainant/company required to import large quantity of raw materials including CI Casting (Degi Iron) articles. According to then Octroi Rules, Instructions and Rates applicable in Punjab State and amended up to January 2005, rates of articles of CI Casting (Degi Iron) are specifically mentioned at Sr.No.91 @ Rs.17/- per quintal and an office order no.48/steno dated 31.08.2005 was issued by Municipal Council Barnala to charge octroi on the said CI Casting (Degi Iron) at the rate of Rs.17/- per quintal. The office order no.48/steno dated 31.08.2005 was issued by the Municipal Council Barnala on the basis of the Government of Punjab Department of Local Government (L.G III Branch), Chandigarh Memo No.2/70/95-3LGIII/21112 dated 14.12.1995 and the said order of the Punjab Government was incorporated in the Octroi Rules Instructions and Rates mentioned above. CI Casting articles were neither used nor could be used directly in manufacturing the products and these articles being rough could only be used for machining and tooling, whereas spare parts were used, as such for the purpose of repair/replacement, so the octroi rates for the finished articles could not be charged for CI Casting raw material, which was being charged by the OPs.  It was further alleged that articles imported by the complainant were CI Casting, as per the bills used by the companies/firms, from whom the same had been imported, despite that, OPs had been charging octroi duty on the CI Casting @ Rs.45/- per quintal i.e. Rs.28/- per quintal in excess to cause financial loss and harassment to the complainant, from which OPs had illegally charged an amount of Rs.5,53,100/- in excess on account of octroi duty for the period from 1.11.2004 to 7.08.2006. The complainant also served a legal notice dated 14.08.2006 upon the OPs, but to no effect. It was further alleged that, as per the order of Hon'ble High Court dated 09.03.2006 passed in CWP No.3851 of 2006 and letter dated 10.04.2006 of Principal Secretary Local Government Punjab Chandigarh laid down certain parameters for charging the octroi on CI Casting @ 17/- per quintal and no spare parts @ Rs.45/- per quintal, but the OPs have charged the octroi duty @ Rs.45/- per quintal. The complainant, vide letter dated 09.09.2005 claimed refund of Rs.58,810/- from OPs charged in excess for the period from 1.11.2004 to 31.08.2005, but OPs refused to refund the same. Thereafter, OPs also charged Rs.11,259/- in excess from the complainant for the period 08.08.2006 to 31.08.2006. Thereafter, the complainant filed a suit bearing no.287 of 22.09.2006 for refund of Rs.5,53,100/- against the Ops, but the same has been dismissed as withdrawn with permission to file fresh one on the same cause of action, vide order dated 11.06.2012 passed by Additional Civil Judge (Senior Division) Barnala. Another suit bearing no.296 of 12.10.2006 was also dismissed as withdrawn with permission to move appropriate Forum on the same cause of action, vide order dated 8.6.2012 by Civil Judge (JD) Barnala. The complainant has, thus, filed the present complaint directing the OPs to refund the amount of Rs.5,53,100/- charged in excess for the period from 01.11.2004 to 07.08.2006, to refund the amount of Rs.11,259/- charged in excess for the period from 08.08.2006 to 31.08.2006, to pay the amount of Rs.7,26,561/- on account of interest on the above-mentioned amounts, besides Rs.1,00,000/-, as compensation and Rs.50,000/-, as costs of litigation expenses.

3.      Upon notice, OP No.2 and 3 were set exparte before District Forum, vide order dated 22.11.2013 and OP No.4 was also set expate, vide order dated 21.01.2014 and OP No.5 was also set exparte, vide order dated 17.02.2014 before District Forum.

4.      OP No.1 appeared and filed written reply by raising preliminary objections that complainant has no locus standi or cause of action to file the present complaint, as no notice under Section 49 of the Municipal Act has been served upon the answering OP before filing the present complaint. The complaint is not maintainable, as complainant has concealed the fact of filing of suit bearing no.267 of 13.10.2005, in which, vide order dated 23.01.2006, the complainant was directed to pay part of the octroi amount along with penalty and the complaint falls within the ambit of civil ligation. The complainant has not come to the Forum with clean hands and concealed the true facts. OP No.2 to 5 charged octroi being contractor, so OP No.1 was not liable to refund the alleged disputed amount. On merits, it was averred that complainant changed the work of business and set up a new case in the present complaint. The complainant/company imported tractor spare parts CI Casting material from Nagpur loaded in Truck no.HR 39 6535 and the driver of the truck entered the truck in the premises of the complainant without paying the octroi. Later on, when this fact came to the knowledge of octroi contractors, they recovered 90-quintal brand new spare parts of tractor from this truck, which did not fall within the ambit of CI Casting articles. In this way, complainant avoided to pay the octroi and caused loss to the public treasure, therefore, complainant is not entitled for any relief. It was further averred that answering OP moved a complaint against the complainant under Section 78 of Punjab Municipal Act 1991, in which the accused/complainant was acquitted, vide judgment dated 10.04.2012, but the same has been challenged in the appellate court, where the proceedings are still pending. It was further averred by answering OP that there was no deficiency of service on their part and prayed for dismissal of the present complaint.

5.      The complainant tendered in evidence, the copies of documents Ex.C-1 to Ex.C-634. As against it, OP No.1 tendered in evidence the affidavit of Ashok Kumar Arora E.O Municipal Council Barnala Ex.OP-1/1 along with copies of the documents Ex.OP-1/2 to Ex.OP-1/6. On conclusion of evidence and arguments, the District Forum, Barnala, dismissed the complaint of the complainant by virtue of order dated 22.12.2014. Dissatisfied with the order of District Forum Barnala dated 22.12.2014, the complainant now appellant has carried this appeal against the same.

6.      We have heard learned counsel for the appellant at admission stage of the appeal and have also examined the record of the case. Undisputedly, the complainant is a limited company being a corporate body, it acts through resolutions and it also passed resolution in favour of Sh. Rajesh Kumar Deputy General Manager (Legal) to file the complaint. The complainant pleaded that it is being run for earning livelihood. The complainant being company is a juristic person and is not living or natural person.  The complainant has separate legal entity and can act through its resolutions, despite the fact that complainant pleaded fact that company is being run to earn livelihood, we find no substance in it. A non-living entity does not deal in any matter to earn its livelihood by means of self-emplloyment. Memorandum of Association and Articles of Association of the complainant/company are Ex.C-1 on the record. Ex.C-2 is the extract of the minutes of the meeting of the Board of Directors, held on April 25,2008. Ex.C-3 is Octroi Rules Instructions and Rates. We have also examined the documents Ex.C-4 to Ex.C-635 on the record.

7.      In view of above facts and circumstances of the case, we are of this considered view that complainant is a Private Limited Company.  There is no question of earning livelihood by means of self-employment by the Private Limited Company. The company, which is run by various directors and shareholders always, is engaged in the business to earn profits and not for the sake of earning livelihood by means of self-employment. The Hon'ble High Court disposed of CWP No.3851 of 2006 on 09.03.2006 by directing the OPs to take decision on the representation of the complainant. Ex.C-18 is copy of Civil Writ Petition no.8635 of 2006 preferred by the complainant, which was dismissed.  The complainant has been non-suited even at the High Court level in writ petition filed by it. We are of this view that complainant/company is a private limited company with share capital of 10 crores. The complainant is commercial establishment, established with the sole aim of earning profits and it is a consumer, as defined in section 2(i) (d) of the Consumer Protection Act. The order of the District Forum is perfectly sustainable because Private Limited Company cannot be a consumer at all. We, thus, find no merit in this appeal at admission stage and same is hereby dismissed in limine.

8.      Arguments in this appeal were heard on 20.08.2015 and the order was reserved. Copies of the order be communicated to the appellant, as per rules.

9.      The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

                       

                                                         

                                                          (HARCHARAN SINGH GURAM)

                                                                             MEMBER

 

August 25,  2015.                                                          

(ravi)