Orissa

Rayagada

CC/125/2017

Sri Umesh Jena - Complainant(s)

Versus

Sri Sagar Swain - Opp.Party(s)

Self

19 Mar 2018

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL    FORUM, RAYAGADA,

STATE:  ODISHA.

C.C. Case  No. 125/ 2017.                                        Date.   19    .    03    . 2018.

P R E S E N T .

Dr. Aswini  Kumar Mohapatra,                                                   President

Sri GadadharaSahu,                                                                        Member.

Smt.PadmalayaMishra,.                                                                                Member

 

Sri Umesh Jena,  S/O: B.Jena, Prop:Mahaveer Enterprises, R.K.Nagar,   Po:R.K.Nagar,  Dist:Rayagada, State:  Odisha.                                                                                                                                                                                                    …….Complainant

Vrs.

1. Sri Sagar Swain, The General Manager-Cuim-Propritor,Sri Binayak Enterprises, AT: 59C,  Zone-A,Mancheswar Industrial Estate,Bhubaneswar.
2. The Manager, Haldiram Inc. Pvt. Ltd., P-20, CIT Road, Scheme VIIIM, PO;Kolkata-700054, India.                    …….Opposite parties.

 

For the Complainant:- Self.

For the O.P No.1:- Sri Golak Bihari  Jena and Sri U.K.Mishra, Advocates.

For the O.P. No.2:- Set exparte.

JUDGMENT

The  present disputes emerges out of the grievance raised in the  complaint petition filed by the above named complainant alleging deficiency in service  against  afore mentioned O.Ps for  non refund of Rs. 7 lakhs  towards  advance amount. 

 

On being noticed the O.P. No.1  filed  written version through their learned counsel  inter alia  refuting the allegation levelled against  them. The O.Ps taking one and other pleas in the written version   sought to dismiss the complaint as it is not maintainable  under the C.P. Act, 1986. The facts which are not specifically admitted may be treated  as denial of the O.Ps. Hence the O.Ps No. 1    prays the forum to dismiss the case against  them  to meet the ends of justice.

On being noticed  the O.P No.2  neither entering in to appear before the forum nor filed their  written version inspite of more than  03 adjournments has been given  to them. Complainant consequently filed his memo and prayer to set exparte of the O.Ps.  Observing lapses of around 6months  for which the objectives  of the legislature of the C.P. Act going to be destroyed to the prejudice of the interest of the complainant.  Hence after hearing  the  counsel for the complainant set the case  exparte against the O.Ps. The action of the O.Ps is against the principles of  natural justice as envisaged  under section  13(2) (b)(ii) of the Act. Hence the O.P. set exparte  as the statutory period  for filing of  written version was over to close the case with in the time frame permitted by the C.P. Act.

The O.Ps appeared and filed their written version.  Heard arguments from the    O.Ps and from the complainant.    Perused the record, documents, written version  filed by the parties. 

The  parties advanced arguments vehemently opposed the complaint touching the points both on the facts  as well as on  law.

                                                         FINDINGS.

On perusal  of the  written version filed by the O.P No.1  it is revealed that  undisputedly  the complainant was carrying trading business under the name  M/S. Mahaveer Enterprises having his place of business  at Rayagada. As such the complainant and O.Ps known each other having some trading business relationship. The relationship between  the complainant and the O.Ps  are only principal to principal  for carrying business in respective dealing item  of goods in order to resale the same in their respective market.  The purchase and sale occurred between the parties only in order to resale  the same in the market for business profit. As such any product purchased for resale as well as for commercial purpose shall not come under  the purview of Section -2 of C.P. act.  Further  the relationship between complainants with  O.P. Noa.1 is commercial purpose in order to resale dealing products by way of trading. The complainant was carrying on trading  business in order to avail  business  gain, the allegation of such loss is only lies up to him in what way he will recovered  his business loss if any.  A trader deals  various items of goods in order to  resale  market and may gain more profit in some dealing item of goods or causes low profit in any other products what ever  it may be, but it is not good trade practice to raise claim for his business loss.

Further the complainant had purchased goods for his   business prupose in  order to resale in the market and incurred gain from his business as such the complainant is not a  consumer as per the definition U/S- 2(d)(i) of the C.P. Act, 1986.  Again  complainant can not be regarded as consumer falling within the scope of the definition of the said expression contents in Section 2(d)(ii)_ of the C.P.Act.  The sale condition  of the invoice is enough to bring the notice of the complainant that he has purchased  the goods for his business profit.

 

 

 

          The principal question that arises for our determination before going to the merits of the case  whether the complainant is a consumer within the definition of Section 2(i)(d)(ii) of the C.P. Act?  It is  held and reported in C.P.R.- 2002 (3) page No. 197 where in the hon’ble National Commission observed “Supply of goods purely for resale will not be in nature of deficiency in service and sale being for commercial  purpose- Complainant would not be a consumer”. Further another citation reported in 2011 Supreme Appeal  Reporter (Civil) page No. 126 where in the Hon’ble Supreme Court  observed “Goods have been purchased for commercial purpose, the complaint itself was not maintainable”.

            Again it is held and reported in C.P.R-2011 (4) page No. 457 the Hon’ble National Commission observed  wherein observed “Commercial users can not invoke jurisdiction  of District Consumer Forum for redressal  of their grievances”.

Prior  to delve in to the merit  of the case on outset  we have to  consider whether the complaint petition  is maintainable   under C.P. Act ?  While answering  the issue  we would like to refer the citation. It is held and reported in   1995 (2) CPJ page  No.1 in the case of Laxmi Engineering  Works  Vrs.  PSG Industries Institute    where in the  Hon’ble Supreme Court observed that  “if any  has obtained goods for commercial purpose  with a view to using   the  said goods for carrying on any  activity of profit, other than   exclusively for  self employment, such person is excluded from the purview of the  C.P. Act.” On this   ground  alone, the instant complaint is not maintainable and ought to be summarily  rejected.

.On perusal of the complaint petition  and on relying the citations of the  Hon’ble Apex Court it reflects that the complainant is not a consumer  coming under the purview of the C.P. Act. On perusal  of the petition  it is  revealed  that the complainant is a  dealer and selling the goods  purchased from the  O.P.  and that  goods purely for  resale  and the  sale being purely for commercial purpose. The grievance which was made by the complainant with regard to  refund  of deposited  amount, and damages does not comes under the purview of the C.P. Act, 1986 since the transaction has dealt with commercial  business.

                In the present case in hand as per the complainant’s own averments  and  allegations, it is manifest that  the complainant has availed the services of   the O.Ps  purely  for commercial purpose  and,   therefore, they do not fall  within the definition of consumer, therefore  not entitled  to invoke the  jurisdiction  of this  forum  for the redressal of their  grievance.  It appears to us that present complaint  is nothing but an attempt  to mis use the process of this forum  with the sole object of saving  court fee payable in a civil suit.   

This forum agree with the views taken by the O.P. in their written version  that the complainant is not a consumer and the complaint filed by it is not maintainable and is commercial nature.

            This forum has lack of jurisdiction to entertain the  above dispute  and adjudicate  the same under the provisions  of the C.P. Act, 1986.  The case is not maintainable in view of the above discussion.

The grievance of the complainant can be raised  before the appropriate court of law and not before this forum. We  do not  think  proper to go  into merit of this case.

Hence, the claim of the   complainant can not be accepted under the provisions of the C.P. Act. It is open to  complainant   ordinary remedy to approach proper forum.       

So  to meet the  ends of justice    the following order is passed.

                                                           

                                                            ORDER.

            In  resultant this forum dismiss the present complaint petition as not maintainable, however  with liberty to the complainant to pursue their remedy before competent  court having jurisdiction in the matter.   Parties are left to bear their own cost.  Accordingly the case  is closed.

            The time spent before consumer forum shall be set-off  by  the  authority, where the proceedings are taken up, as per provision of Section-14 of Limitation Act, as per the law laid   down by  the Hon’ble  Supreme Court in the case of Laxmi Engineering works Vrs. P.S.G.Industrial Institute 1995 (3) SCC  583.

Dictated and corrected by me.                    Pronounced on this      19   ^th.    Day of   March,  2018.

 

Member.                                                             Member.                                                              President