12.06.2015

MR. TARAPADA GANGOPADHYAY, HON’BLE MEMBER

            The instant Appeal u/s 15 of the Consumer Protection Act, 1986 is directed against the judgment and order dated 8.2.2013 passed by the Ld. District Consumer Disputes Redressal Forum, South 24 Parganas, in C.C.Case No. 218 of 2012, directing the OP/Appellant to refund to the Complainant/Respondent Rs. 13,34,745/- within one month from the date of order and also to pay to the Complainant/Respondent Rs. 2,00,000/- as compensation for harassment and mental agony during the period, failing which interest @ 10% shall accrue on the said amount for the entire period of default.

          Facts of the case leading to the present controversy are, in short, that the Complainant/Respondent, who is a ‘Chairman/Director of M/s. Luxmi Tea Company Private Limited’ having office at 17, R.N.Mukherjee Road, Kolkata-700 071, as apparent from the averment in the Petition of Complaint, purchased on 22.11.2007  from the OP/Appellant a ‘Hitachi Set Free Air-conditioning System’ for use in the residence of the Chairman-Complainant/Respondent at a consolidated price of Rs. 13,34,745/- under Sale Invoice No. PRO/DIP/001 dated 22.11.2007 against payment of Rs. 7,00,000/- in advance by Cheque No. 267626 dt. 7.8.2007 drawn on Central Bank of India, Bara Bazar Branch and balance payment of Rs. 6,34,745/- by Cheque No. 57129 dt. 18.12.2007 drawn on the same bank.  Within a short period of such purchase the said air-conditioning system was found not functioning properly.  Then the Complainant/Respondent wrote to the OP/Appellant a letter dated 28.4.2009, followed by several reminders, requesting the OP/Appellant to make the air-conditioning system trouble-free or to replace the same, but without any success.  Then the Complainant/Respondent by a letter dated 26.3.2010 demanded from the OP/Appellant either replacement of the said air-conditioning system in question or refund of the entire consideration paid along with interest thereon from the date of purchase of the same, but the OP/Appellant did not respond to as alleged in the Petition of Complaint.  Thus, getting no redressal from the OP/Appellant in respect of malfunctioning of the said air-conditioning system the Complainant/Respondent moved the Ld. District Forum which passed  the impugned order in the manner aforesaid.  Aggrieved by such order the OP has preferred the instant Appeal.

          The Ld. Advocate for the Appellant/OP, assailing the impugned judgment and order on the ground of the same being contrary to the fundamental provisions of the Consumer Protection Act, 1986, submits that the Respondent/Complainant being a Private Limited Company does not fall within the definition of ‘Consumer’ as defined u/s 2(1)(d) of the Consumer Protection Act, 1986 as the said air-conditioning system was purchased on and from the account of the said Private Limited Company of which the Respondent/Complainant is admitted to be the Director/Chairman.  In support of such submission the Ld. Advocate relies on a decision of the Hon’ble National Commission in M/s. MCS Computer Services (P) Ltd. Vs. M/s. Allena Auto Industries Pvt. Ltd., reported in 2012 (2) CPR 68 (NC), wherein it was held that the Complainant being a Private Limited Company is not a Consumer as defined u/s 2(1)(d) of the Consumer Protection Act, 1986.

          The Ld. Advocate further submits that so far as the territorial jurisdiction of the concerned Ld. District Forum is concerned, the instant Complaint Case is beyond the territorial jurisdiction of the Ld. District Forum in view of the location of the place of business of the Appellant/OP at 5/2, Russell Street, P.S. Park Street, Kolkata-700071, as apparent from the cause-title of the Petition of Complaint as well as Sale Invoice concerned, which undisputedly does not fall within the territorial jurisdiction of the Ld. District Forum, South 24 Parganas which passed the impugned judgment and order.

          The Ld. Advocate concludes that in view of the submission so advanced the impugned judgment and order should be set aside, it being contrary to the provisions of the Consumer Protection Act, 1986.

          None has appeared on behalf of the Respondent/Complainant despite due service of notice as evident from the order dated 8.9.2014 of this Commission.

          However, in the Petition of Complaint, as available on records, the Respondent/Complainant had stated that the air-conditioning system in question was installed at his residence which is under the jurisdiction of the Regent Park Police Station which falls within the territorial jurisdiction of the Ld. District Forum concerned. 

It is further stated in the Petition of Complaint that he, being a Director/Chairman of M/s. Luxmi Tea Company Private Limited, purchased the air-conditioning system in question for installation of the same at his residence against payment made by cheques, but immediately after installation thereof the air-conditioning system in question started not  functioning properly.  It was also stated in the Petition of Complaint that despite vigorous persuasion for setting the air-conditioning system at right or replacement of the same, the Appellant/OP did not respond to, implying thereby the deficiency in service on the part of the Appellant/OP.

          We have heard the Ld. Advocate for the Appellant/OP, considered his submission and perused the materials on records.

          The Petition of Complaint, as available on records, reveals that the air-conditioning system in question was installed at the residence of the Respondent/Complainant and thus, the part of cause of action took place under Regent Park Police Station, which falls within the territorial jurisdiction of the Ld. District Forum, South 24 Parganas. 

The Petition of Complaint also reveals that the Respondent/Complainant is a Director/Chairman of a Private Limited Company, M/s. Luxmi Tea Company Pvt. Ltd. by name.  A reminder letter dated 15.5.2009 written, by the Respondent/Complaint and addressed to the Appellant/OP highlighting the malfunctioning of the said air-conditioning system, reveals that the said letter was written in the capacity of ‘Chairman of M/s. Luxmi Tea Company Limited’ (Running Page-25 of Memo of Appeal) and by the said letter the Respondent/Complainant requested the Appellant/OP to contact one Mr. Malakar in the office of the said company for taking immediate action about the said air-conditioning system.  All these evidence on records, as led by the Respondent/ Complainant himself manifestly, suggest that the transaction of the air-conditioning system in question was closely connected with the said Private Limited Company, which carries on commercial activities for its shareholders but not for self-employment of the Director/Chairman in question.  For the reasons aforesaid, the Respondent/Complainant does not fall within the definition of ‘Consumer’ as defined u/s 12(1)(d) of the Consumer Protection Act, 1986 based on the ratio decided in M/s. MCS Computer Services (P) Ltd. Vs. M/s. Allena Auto Industries Pvt. Ltd. (supra) as the Ld. Advocate for the Appellant/OP relied on rightly.

          On the foregoing facts and evidence on records we are unable to sustain the impugned judgment and order, there being no illegality or impropriety and hence, the impugned judgment and order is liable to be set aside, which appears to have been passed not in accordance with the settled principle of law.

          In our such view of the case, the other issues involved in the case do not necessarily require to be dealt with further. 

          Therefore, the instant Appeal is allowed.  The impugned judgment and order is set aside and the Petition of Complaint stands dismissed.  No order as to costs.