Chandigarh

StateCommission

A/84/2023

M/S DATI ENTERPRISES THROUGH ITS PROP RAJ RANI SHARMA - Complainant(s)

Versus

STAR ENGINEERING WORKS THROUGH ITS PROP.CHETAN SINGH - Opp.Party(s)

ANIL KUMAR SHARMA ADV.

04 Jan 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T. CHANDIGARH

[ADDITIONAL BENCH]

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Appeal No	:	A/84/2023
Date  of  Institution	:	02/05/2023
Date   of   Decision	:	04/01/2024

 

 

 

 

 

M/s Dati Enterprises, Plot No.84, Lodhi Majra, Baddi, District Solan (H.P), through Prop. Smt.Raj Rani Sharma wife of Sh.Umesh Nandan Sharma, Resident of House No. 3213, Sector 32-D, Chandigarh (U.T).

 

…. Appellant

 

V E R S U S

 

Star Engineering Works (Regd.), Plot No. 95, Focal Point, Industrial Area, Amritsar, through its Proprietor Sh.Chetan Singh.

…… Respondent

 

BEFORE:   MRS. PADMA PANDEY       PRESIDING MEMBER

          PREETINDER SINGH        MEMBER

 

PRESENT	:	Sh. Anil Kumar Sharma, Advocate for the Appellant.
		Sh. Sukhandeep Singh, Advocate for the Respondent.

 

 

PER PADMA PANDEY, PRESIDING MEMBER

 

 

 

          This appeal is directed against the order dated 14.03.2023, rendered by the District Consumer Disputes Redressal Commission-II, U.T. Chandigarh (for brevity hereinafter to be referred as “the Ld. Lower Commission”), vide which, it dismissed the Consumer Complaint bearing no.CC/605/2020, in the following terms: -

“[9]      Taking into consideration the above discussion & findings, the present complaint being not maintainable is hereby dismissed. No order as to costs. The complainant shall, be at liberty, to approach an appropriate Authority/Court having territorial jurisdiction in the matter and the time spent herein would stand commuted/ condoned for the purpose of limitation.”

2.      For the convenience, the parties are being referred to, in the instant Appeal, as position held in Consumer Complaint before the Ld. Lower Commission.

 

3.      Before the Ld. Lower Commission, it was the case of the Complainant/Appellant that in order to start a Unit at Baddi of Corrugated Boxes, used in Pharma and other units, to earn her livelihood, she approached OP Firm to purchase machinery worth Rs.34 lacs, per quotation Annexure C-1. It was averred that certain changes/ improvements in specifications were suggested by her for better & efficient functioning of machinery, whereupon the OP Firm submitted revised quotation of Rs.48,86,380/- including GST except Freight to be borne by Complainant.  Accordingly, the supply order of Machinery was placed on 16.09.2019 as per quotation of Opposite Party dated 16.09.2019 and complainant made advance payment of Rs.8.50 lacs to Opposite Party through cheque dated 12.09.2019.  It was further averred that the OP-Firm failed to supply the ordered machinery within promised period of 45 days. It was submitted that the OP firm agreed to make delivery of machine and Sh.Chetan Singh, Proprietor of OP Firm sent message (Ann.C-3) giving details of the total amount of the machinery i.e.Rs.34,00,000/-, GST Rs7,45,380/- and payment received by him of Rs.32,50,000/- and balance amount of Rs.8,95,3280/- and in pursuance thereto, the complainant deposit Rs.5,00,000/- and Rs.3,95,000/- on 01.02.2020 & 06.02.2020 respectively.  In this way, the OP Firm, received a total sum of Rs.41,45,000/- and the delivery of machine was started from 05.01.2020 and completed by 06.02.2020. It was further submitted that the OP deputed their mechanic Sh.Sukh on 15.02.2020 i.e. after a lapse of 9 days, for commissioning/testing of machinery, but during the course of testing, when their mechanic started checking the functioning of Die Machine, the Hydraulic oil started oozing and flowing profusely on the floor, so the further work of testing/commissioning of machine stopped fearing further risk/damage. It was found that one of the major machine i.e. Star Make Dye Punching Machine size 48”x70” Platin size 37”x57” was having a major mechanical manufacturing defect and its intimation to proprietor of OP firm was given vide Annexure C-6 with request to replace it. The OP firm was requested time & again vide emails dated 17.02.2020, 19.02.2020, 29.02.2020 and 04.03.2020 to replace the defective Die Punching Machine, but the OP did not do so even after a lapse of 8 months period causing immense financial loss, agony and harassment to the complainant-firm. It was alleged that as per the Detailed Project Report (DPR) (Ann.C-11) got prepared by the complainant firm, from approved Consultant and further sanctioned by Department of Industries, Govt. of H.P., the Project envisages turn over/sale to the tune of Rs.4,80,00,000/- annually and Rs.40 lacs per month at full capacity and by calculating minimum turn over/sale at 40% utilization for the 1st year has to be Rs.10 lacs per month and thus the loss for three and half months comes to Rs.56 lacs and since the defective machine has not been replaced so far, so the complainant firm suffers loss minimum at the rate of Rs.3 lacs per month for 6.5 months which comes to Rs.19,50 lacs. It was pleaded that the defective machine has not been replaced till date nor the amount has been refunded. Hence, the aforesaid Consumer Complaint was filed before the Ld. Lower Commission, alleging deficiency in service and unfair trade practice on the part of the Respondent/Opposite Party.

 

4.      In the reply filed before the Ld. Lower Commission, while admitting the factual matrix of the case, Opposite Party pleaded that the complainant firm purchased machinery in question entirely for commercial purpose and is doing large scale commercial activity, claiming loss of profit, which is a huge amount, and the complainant firm is running the factory having scores of employees, the complainant firm cannot be covered under the definition of ‘consumer’. It was stated that the project report of the complainant firm (Annexure              C-11) shows the complainant firm is doing large scale commercial activity with the help of much more than 15 employees as mentioned at page 47 under the head "Detail of Man Power Requirements”. In fact, much greater number of employees were working in the factory of complainant firm. This clearly oust the jurisdiction of the "Commissions" established under the Consumer Protection Act, to try disputes inter se commercial ventures with regard to purchase or supply of any goods for large scale commercial activity or for any service part and parcel of the same. It was also stated that since the factory of complainant firm was being run at Baddi, District Solan (H.P) where the machineries in question were installed and working, and no transaction ever took place at Chandigarh within territorial jurisdiction of this Hon'ble Commission and Opposite Party does not work for gain within territorial jurisdiction of this Commission (Annexure OP-1/2), thus the District Commission at Chandigarh is having no territorial jurisdiction as well to decide the present complaint. It was submitted that the complaint is counterblast as the complainant firm still owed Rs.7,41,380/- to OP firm as less amount has been paid for the machinery so purchased for which it does not intend to pay the balance and there is no defect in the machines in question and factory of the complainant firm is running in full capacity, as is clear from books of accounts of OP firm (Annexure OP-1/3 & OP-1/4). It was further submitted that whenever any sort of assistance has been asked by the complainant firm, the same was always extended without any delay. It was pleaded that though initially there were a few minor problems for running of the machines at the end of complainant firm, which were due to the untrained persons put on the machines for their operation, and further due to defective wiring, but the staff of complainant firm were trained by technician of OP firm at the factory site of complainant firm without any charges. Denying all other allegations and pleading no deficiency in service, the Opposite Parties prayed for dismissal of the Complaint.

 

5.      On appraisal of the pleadings and the evidence adduced on record, Ld. Lower Commission dismissed the consumer Complaint of the Complainant/ Appellant, as noticed in the opening para of this order.     

 

6.      Aggrieved against the aforesaid order passed by the Ld. Lower Commission, the instant Appeal has been filed by the Appellant/Complainant.

 

7.      We have heard Learned Counsel  for the parties and have also gone through the evidence and record of the case, with utmost care and circumspection.

 

8.      The core question that falls for consideration before us is as to whether the Ld. Lower Commission has rightly passed the impugned order by appreciating the entire material placed before it. 

 

9.      After giving our thoughtful consideration, to the contentions raised and material on record, we are of the considered opinion, that the instant Appeal is liable to be dismissed for the reasons to be recorded hereinafter.

 

10.      Record transpires, the Appellant/ Complainant is a manufacturing concern and is engaged in the activity of manufacturing of corrugated box. The fact that for carrying out the aforesaid activity the Appellant/ Complainant availed the services of the Respondent/ Opposite Party, goes a long way to prove that the relationship between the Appellant/ Complainant and the Respondent/ Opposite Party is purely business to business relationship and the Complainant firm is purely indulged into commercial activity doing large scale commercial activity which is fortified from the Project Report (Annexure C-11) and claiming loss of profit of Rs.56 lacs. In other words, the transaction would clearly come within the ambit of commercial purpose and it cannot be said that the services were availed for exclusively for the purpose of earning livelihood by means of self employment. In Laxmi Engineering Works Vs.PSG Industrial Institute, (1995) 3 SCC 583, the Hon’ble Supreme Court held that commercial purpose is to be looked into, in the facts and circumstances of each case to consider the purpose for which the goods and services are bought or availed. If it is availed with a view to carrying out large scale commercial activity with profit motive, then the buyer would not qualify as a consumer under the Consumer Protection Act.

 

11.      It is worthwhile to add that the term “commercial purpose” appears as an exclusion clause in the definition of ‘consumer’ under Section 2(1)(7) of the Consumer Protection Act, 2019. Since the cases of resale have been separately referred to in this clause, it becomes obvious that the words “commercial purpose” are intended to include any commercial activity, other than resale, where goods are purchased for being used in any activity directly intended to generate profit. Thus, per material available on record, exception to commercial activity is not available to the Appellant/ Complainant and it cannot be said that the Appellant/Complainant is exclusively earning his livelihood by way of self-employment, in as much as, no such evidence is forthcoming on record which could prove that the activity carried by the Appellant/Complainant is for earning livelihood by way of self-employment. Thus, what is important is the transaction in reference to which the claim has been filed under the Consumer Protection Act, 2019 by a person who claims himself to be a consumer covered under Section 2(7) of the Act, such exposition of law on the subject has been reiterated by the Hon’ble Supreme Court in Shrikant G. Mantri Vs. Punjab National Bank, (2022) 5 SCC 42, which has duly been noticed by the Ld. Lower Commission while passing the order impugned before us.   

 

12.      The Ld. Lower Commission has, therefore, rightly held the Complaint to be not maintainable as the activity carried on by the Appellant/ Complainant firm is for commercial purposes and not for earning livelihood by way of self employment. To our mind no case is made for any interference in the findings recorded by the Ld. Lower Commission. 

 

13.      No other point was urged, by the Learned Counsel for the parties.

 

14.      It is demonstrable from a reading of the impugned Order of the Ld. Lower Commission that it is certainly not an order passed without reasons or without applying the judicious mind. The facts and circumstances of the case have been gone into, weighed and considered, and due analysis of the same has been made. It also does not appear to be an order passed without taking into account the available evidence.

 

15.      In the wake of the position, as sketched out above, we are dissuaded to interfere with the impugned order rendered by the Ld. Lower Commission. The appeal being bereft of merit is accordingly dismissed and the order of the Ld. Lower Commission is upheld.

 

16.      The pending application(s), if any, stand disposed off as having become infructuous.

 

17.      Certified copies of this order be sent to the parties free of charge.

 

18.      The file be consigned to Record Room, after completion.

Pronounced

04^th Jan., 2024

               Sd/-

                                  (PADMA PANDEY)

PRESIDING MEMBER

 

 

Sd/-

(PREETINDER SINGH)

MEMBER

“Dutt”