Today is fixed for hearing on the point of admission. Ld. Lawyer for the Complainant is present. Heard the lawyer for the Complainant. Perused the complaint u/s 35 of the C.P. Act, 2019.
The fact of the case is that on 11/05/2020 complainant made a payment of sum Rs. 2,80,000/- (rupees Two Lakh Eighty Thousand ) only through RTGS to Ultratech Cement Limited in its account being no 7732000100043032 maintained with Punjab National Bank, Andheri East Branch, Andheri East, Mumbai for purchase certain number of cement bags from the O.P. In para 4 of the complaint petition the compliment alleged that the amount had not been credited to the desired account of Ultratech Cement and after enquiry the complainant found that the said account stood in the name of an individual maintained with Punjab National Bank, Bagru Branch, Bagru, Jaipur in the state of Rajasthan. There after the complainant send a notice through his lawyer to the Ultratech Cement, but the O.P number 1 did not provide any answer to the complaint or not made any communication with the compliment. There after the complainant filed the consumer case before the learned District Consumer Commission of Siliguri. The petition was dismissed on territorial jurisdiction point on 26/04/2022. After that the complainant files complaint under section 35 (1) Consumer Protection Act 2019 before this Commission on dated 04/11/2022. With the complaint petition complainant also file a separate application under section 69 of the of the consumer protection act 2019 praying for condonation of delay in filing the present complaint after a delay of 192 days Both the petition taken up together for consideration.
According to the consumer protection act 2019 “consumer” means any person who,—
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the ser vices for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose;
Explanation.—for the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self employment;”
In the case of Shrikant G. Mantri vs Punjab National Bank on 22 February the Hon’ble Supreme Court stated that to come within the ambit of the consumer, a person will have to establish that the services were availed exclusively for earning his livelihood by means of self-employment. A bench of Justices L Nageswara Rao and BR Gavai said there cannot be any straitjacket formula and such a question will have to be decided in the facts of each case, depending upon the evidence placed on record. The bench said."When a person avails a service for a commercial purpose, to come within the meaning of 'consumer' as defined in the said Act, he will have to establish that the services were availed exclusively for the purposes of earning his livelihood by means of self-employment," The Consumer Protection Act clearly shows that the legislative intent is to keep the commercial transactions out of the purview of the said Act. It said that at the same time, the intent of the Act is also to give benefit to a person who enters into such commercial transactions, when he uses such goods or avails such services exclusively for the purposes of earning his livelihood by means of self-employment.
Prior to going to the systematic fact of the case we scrutinize the entire documents placed by the complainant along with the complaint petition. On going through the record we find a General diary or complaint made by the complainant on dated 15/05/2020 before the Office-in-charge, Bhaktinagar Police Station, Third mile, Sevoke Road, Siliguri. In that specific complaint or general diary the complainant stated as follows.
“We are in the construction business in Gangtok and Siliguri for which we require cement regularly. Online we found UltraTech Cement supplier for projects at a special price for 1000 cement bags order. We found his proposal very attractive therefore immediately made RTGS payment on dated 13.05.2020 to the company and where waiting for the supply of the cement” In verbal submission the learned lawyer for the Complainant also admitted the fact.
In the present case, that we come to a finding that the complainant had transfer the amount to the O.P for his business and increases his profits. The relation between the complainant 43complainant and the O.P is purely “business to business” relationship. As such, the transactions would clearly come within the ambit of ‘commercial purpose’. It cannot be said that the services were availed “exclusively for the purposes of earning his livelihood” “by means of self employment”.
Ld. Lawyer for the complainant has also filed another application of U/s 69 of the C.P. Act for condone of delay of total 192 days for filing the above noted case. Moreover, the perusal of Section 69 as mentioned supra it is very clear that the Court or the Commission can condone the delay if there is any plausible reason satisfying the Court to condone such delay. In this case also, it has been specifically pleaded by the complainant that due the outbreak of COVID pandemic he got delayed in filing the complaint. Besides, the Hon'ble Supreme Court in Suo Moto Writ Petition (C) No.3 of 2020 has held as under:
"I. The order dated 23.03.2020 is restored and in continuation of the subsequent orders dated 08.03.2021, 27.04.2021 and 23.09.2021, it is directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi judicial proceedings."
We, also rely upon the judgment of the Hon'ble Supreme Court reported in AIR 2014 (SC) 1612 'Brijesh Kumar & Ors. Vs. State of Haryana & Ors.' wherein it has been held that 'sufficient cause is a condition precedent for exercise of the powers to condone the delay'.
After hearing the Ld. Lawyer for the complainant and on going through the materials on record it needs to be mentioned, that the delay starts after 26/04/2022 which is well after the onset of the Pandemic period mentioned by the Honorable Supreme Court. Therefore, the complainant cannot claim the excuse for the Pandemic period, as a hindrance to filing this case. This case is badly delayed by more than Six (6) months and therefore, the same cannot be admitted.
In the result, the complaint petition u/s 35 of the C.P. Act, 2019 and the application of U/s 69 of the C.P. Act for condone of delay of total 192 days is dismissed.
The case shall stand disposed of. Liberty to the complainant to avail of his remedy by approaching the appropriate court, having jurisdiction.
