Per Shri P.N.Kashalkar, Hon’ble Judicial Member:-

 This is a complaint filed by Klitch Drugs (India) Ltd. against the opposite party/Snowbell Machines Pvt. Ltd. alleging deficiency in service on the part of opp.party-company.  Complainant has claimed reimbursement of RS.72,94,485/- for the losses suffered by the complainant as the said amount was extracted by the opp.party by misleading the complainant.  They also claimed Rs.10 Lakhs for compensation towards the mental and physical harassment suffered and Rs.50,000/-towards cost of litigation. 

        While filing the complaint, in para 21 the complainant pleaded that cause of action has arisen in the month of Janurary, 2008 and thus, the complaint filed by the complainant is within limitation but then this complaint was filed in this Commission on 23/03/2010.  However, on 29/03/2010 the complainant filed application for condonation of delay along with affidavit.  We had issued notice on delay condonation application as well as notice before admission.  Accordingly opp.party appeared through Adv.Mr Shukla and filed reply to the delay application.

        Adv.Mr.A.S.Doctor h/f Adv.Mr.Shukla was heard on 30/09/2010 for the opp.party.  None was present for the complainant.  We therefore proceeded to decide whether delay condonation application should be allowed and complaint should be admitted and whether the complaint itself is liable to be rejected in limine on the ground that transaction between the parties appeared to be purely commercial in nature and therefore, complainant company cannot be said to be a consumer within meaning of Section 2(1) (d) of Consumer Protection Act, 1986.

          As regards the condonation of delay application is concerned, nowhere complainant has mentioned that when cause of action has arisen to file the consumer complaint but in the application the prayer is that delay of 70 days should be condoned.  There is an affidavit in support of delay condonation application filed by one Mr.Dilip K. Desai on behalf of company which also  mentions in para 2 of itself that there is 70 days delay in filing the complaint.

        We are finding that as far as condonation of delay application is concerned, it has been so wisely drafted that no cause of action is mentioned in delay application.  Date of cause of action is crucial for deciding whether the complaint is filed within limitation or beyond limitation.  If it is filed beyond limitation, there is necessity of filing condonation delay application by the complainant and delay of everyday must be explained properly by the complainant.  In the affidavit filed by the complainant along with the delay application, no just and sufficient cause has been mentioned in para 2.  It has been simply mentioned that applicant was in process of tracing relevant documents and obtaining relevant information with regard to the subject matter of the present complaint.  The applicant took time to trace the relevant documents and for obtaining relevant information which is further repeated in para 3. In delay condonation application and affidavit, there is no specific ground mentioned by the company for explaining delay of 70 days on their own showing.  Simply saying that they were tracing out the documents and collecting relevant information is a very sweeping (omnibus) statement which cannot be acted upon  when consumer complaint is being filed by a corporate company.  In corporate office there is systematic filing of documents and maintenance and preservation of documents.  So, complainant company cannot be heard to say that complainant company tried to locate the documents and collecting correct information for purpose of filing delay condonation.  So, ground mentioned in delay application and affidavit in support thereof is absolutely false, frivolous and no credence can be attached to said pleading containing condonation of delay application and affidavit filed in support thereof. 

On their own showing, there is delay of 70 days in filing the appeal.  So, going on by their own case, we are finding that the complaint as filed by the complainant is belated by 70 days and filed beyond limitation and there is no sufficient cause mentioned by the complainant which would appeal to our judicious mind and prompt us to condone the delay.  In the circumstances, we are of the view that no just cause has been mentioned by the complainant company to seek delay of 70 days.  We are not inclined to condone delay of 70 days as per complainant own showing.  Hence, M.A.No.168/2010 for  condonation of delay stands rejected.

        That apart we are finding that complaint as filed by the complainant company alleging deficiency in service and unfair trade practice on the part of opp.party is also a complaint which cannot be entertained by us because complainant company is engaged in commercial and manufacturing process and therefore, it cannot file a consumer complaint and it cannot style itself as a consumer within meaning of Section 2(1)(d) of Consumer Protection Act, 1986.  The explanation appended to Section 2(1)(d)(ii) clearly mentions that person who hires or avails of the services for consideration paid or promised to pay 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.  Some exception is carved out in terms of explanation given under clause 2(1)(d)(ii).  Moreover, it is not the case of complainant that company is being run by a person exclusively for the purpose of earning livelihood by means of self employment.  On the contrary, if we peruse the  complaint, it is made very clear in the para 3 (a) of complaint that complainant is an Indian based Pharmaceutical Company manufacturing and marketing a range of formulations in all doages forms, namely small volume parenterals,  dry syrups, tables, capsules having their office as mentioned in the cause title of the complaint. Besides that in para 3(b) it has been further pleaded by the complainant that it is the leading and one of the largest manufacturers of Antibacterial Parenteral Formulations and is also one of the largest producers of Sterile Liquid formulations in small volumes in India.  This would make it amply clear that complainant company is engaged in manufacturing as well as commercial venture and it is a largest manufacturing company of India and therefore, such a company cannot be said to be falling within the ambit and scope of Section 2(1)(d) of Consumer Protection Act, 1986.  So, it cannot be held to be a consumer looking to the pleading of complainant itself and since it is engaged in manufacturing and commercial activity, as has been pleaded in para 3 (a)and (b) of complaint itself, we hold that this complaint cannot be entrained and tried by us because complainant company is not a consumer within meaning of Section 2(1)(d) of Consumer Protection Act, 1986.  On this ground also the complaint is liable to be dismissed in limine.  Hence, we pass the following order:-

                                        :-ORDER-:     

1.   Complaint stands dismissed in limine on the ground that it is engaged in commercial activity and also on the ground that it is filed beyond period of limitation on its own showing.  

2.    Parties are left to bear their own costs.

3.   Copies of the order herein be furnished to the parties as per rule.