Karnataka

Chitradurga

CC/63/2022

M/S Suresh Electricals a Partnership firm - Complainant(s)

Versus

The Commissioner,City Muncipality - Opp.Party(s)

Sri.R.Jagadeesh.

22 Apr 2022

ORDER

                                  Filed On:  13/04/2022.

                               Disposed  On: 22/04/2022.

 

BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION AT CHITRADURGA

 

CC No: 63/2022

Dated:22nd April 2022

PRESENT:- Smt.B.H. YASHODHA, PRESIDENT IN-CHARGE

                   B.A. LL.B

                  Sri. G.SREEPATHI, MEMBER

                          B.Com. LL.B  

                                  

COMPLAINANT/s:-	M/s.Suresh Electricals, A Partnership Firm having place of business at Bellary. Represented by its two partners namely & respectively 1)Lalitha R. W/o.T.Suresh    Aged about 49 years,    One of the partner of the    said firm,   R/o.D.No.10. W.No.30,    Jayarama Vidyalaya,    Contonment, Bellary.   2) N.Sumithrappa,    S/o.Kariyappa,    Aged about 50 years,    R/o.D.No.159,    Ward No.34, Devinagar,    3rd Cross,  Bellary.  (Rep. by Sri R. Jagadeesh, Advocate) V/s
OPPOSITE PARTIES:-	1. The Commissioner, City Municipality,  Chitradurga
	2. The Regional Provident Fund Commissioner-II and I.O.C., Regional Office, 3rd Floor, SLV Towers, Parvati Nagar, Bellary-513 803.
	3. Recovery Officer, Recovery Section, Employees Funds Organization, Regional Office, 3rd Floor, SLV Towers, Parvathi Nagar, Bellary-513 803.
	4. The Assistant Provident Fund Commissioner, Employees Provident Fund Organization, SLV Towers, 1st Floor, Parvati Nagar, Bellary-513 803.

 

 

By Sri.G.SREEPATHI, MEMBER 

 

ORDERS ON ADMISSIBILITY OF COMPLAINT

 

        The said two partners of the complainant Firm for themselves and on behalf of the rest of two partners of the said Firm prays this Hon’ble Commission to order for directing the Opponent-1 to pay the following amounts under the following heads.

1. The arrears of EPF amount of Rs.20,51,531/- towards ESI penalty/fine imposed by the opposite parties 2 to 4, as per notice of show cause dated 07.03.2022 issued by OP No.3 to the partner of the said firm.
2. The EPF due/arrears U/s.7Q for the period from 01.11.2019 to 28.02.2021 a sum of Rs.70,118/- as per order dated 07.09.2021 of OP-2.
3. The penalty/fine of Rs.6,08,454/- towards EPF Penalty/Fine imposed by the OP-4 to partners of the complainant firm, mental agony, harassment, financial loss, loss of time, cost of litigation, expenses, damages, loss of Rs.1,00,000/-, in all a sum of Rs.28,30,103/- together with interest and such other reliefs as this Hon’ble Commission deems fit to grant under the circumstances of the case by allowing the complaint in the interest of equity and justice.

 

FACTS IN BRIEF :-

2)     The brief facts of the complainant case is that, the said two partners were running business under the name and style M/s.Suresh Electricals from 04.09.2015 along with another 2 partners after making partnership deed on 17.06.2020 in continuation of 1^st deed of partnership. The nature of business and objectives of said firm by its partners are, to undertake maintenance and repair work required by the Electrical units including repairs of motors, generators and panal boards etc., to undertake electrical contract works pertaining to power supply, providing electrical intra structure etc., and to do any other business or trade that can be easily blended to with the activities carried on by the firm. Other details are morefully incorporated in a said deed of partnership entered between said all four partners.

 

3)     That the aforesaid partnership firm consisting of present said 4 partners are Class-I Contractors. The said partners and earlier partners namely and respectively are Swetha W/o.Suresh, M.Sumithrappa S/o.Kariyappa, have entered into a partnership firm being the partners under the name and style of M/s.Suresh Electricals and have started deeds, acts and business under the said name and style cited said partnership deed dt.04.09.2015. Subsequently after retirement of Smt.R.Lalitha and said partners have started the same business under the same said name and style as per the partnership deed dt.17.06.2020.

 

4)     The said firm by said partners are working as contractors to the opposite party No.1 since several years, the nature of the work of the said firm by the said partners have entrusted the tender work of engaging man power for operation and maintenance of Shanthi Sagara, Vani Vilasa Sagara and City drinking water supply from the year 2014-2015 to 2019-2020. Accordingly the said partners of the firm engaged/employed 82 employees on daily wage basis for the said projects for execution of said work from time to time. Further the opposite party No.1 is a principal employer of all the said employees working under the said partners of the said firm. As per ESI and EPF Rules and Regulations, the partners of the said firms have enrolled all the names of the said employees online. The partners of the said firm are regularly paying their part of the contribution to ESI & EPF to all the employees for their interest and benefit.

 

5)     The OP-1 is principal employer of all the employees of complainant firm. As per tender, shall pay the payment in respect of the work done on behalf of the OP-1 in respect of outsource employees for every month without fail. As per rules and regulations, norms and guidelines of ESI & EPF, being the principal employer the opposite party No.1 shall and bound and duty to remit/pay their portion of the said benefits of the opposite party No.2 to 4. For the reasons best known to OP-1 is not regularly payment the bills amount submitted for the work done by the partners of complainants firm. Under the above said facts and circumstances, the complainants firm by its partners have submitted several letters of request respectively dt.28.11.2017, claiming a sum of Rs.6,38,302/- dt.29.04.2019 claiming a sum of Rs.2,67,642/-, dt.29.04.2019 for a sum of Rs.6,38,302/-, dt.29.04.2019 Rs.6,19,051/- to OP-1 for the payment of the amounts of the bill submitted for work done from time to time for the relevant period by submitting bill well in time. Inspite of submitting the bills for payment of work done the partners of the complainant firm, to pay the said benefits of the portion of the partners of OP No.2 to 4 in respect of employees, because of intentional delay in payment of the submitted bill for the work done by partners of the  complainants form. For the employees of the complainant firm, complainants unable to pay the said contributions to OP No.2 to 4. With this they have issued show cause notice why a warrant of arrest should not be issued vide dt.07.03.2022 to the two partners of said firm case cited in cause title of the complaint demanding to pay Rs.20,51,531/- for recovery of arrears of said EPF amount. The main avocation of the partners of the said complainant’s firm is the said contract work. Because of the delay in payment of said bill amount for work done by complainants firm by OP No.1 could not pay/remit the contributions covering under ESI & EPF to complainant firm employees.

 

6)     There is no malafide intention in remitting their part of contribution to employees of OP No.1 well in time for the above said reason. The partners of complainant firm also put forth all the said grievance to OP 2 to 4 through relevant letters and also to OP-1 and all of them received the same. As per act and guidelines of ESI and EPF partners of complainant firm shall have to make payment within 15^th of every month, in case of delay OP 2 to 4 have got power to impose penalties/fine and also interest. As the complainants firm partners failed to remit said contribution well in time because of the reason, OP 2 to 4 have imposed penalty fine amount of Rs.1,64,794/- and Rs.6,08,454/- respectively. Anyway to avoid complication, litigation partners of complainant firm have remitted a sum of Rs.69,682/-, a penalty/fine amount to the OP-4 pertaining to EPF amount. Till the remittance of above amounts OP No.2 to 4 will charge interest and additional penalties on the said amount.

 

7)     That even after several letters of request with grievances submitted by partners of the complainant firm to OP 2 to 4, without considering the same they have issued letters of demands & notices to partners of complainant firm by imposing period of delay penalty by damages and also interest. As the complainants firm had no malafide intention in making payment of ESI & EPF of employees of their own to OP-2 to 4 as that delay in making payment by OP-1 to the complainant.

 

8)     Likewise complainant goes on illustrating in his further paras of complaint that, the payment of contribution etc., are delayed due to delay in making payment to them by OP-1 with this complainants pray before Hon’ble Commission to pass order against OP-1 to pay the amount of Rs.20,30,103/- along with interest of 2% p.m. and other benefits.

 

OBSERVATIONS :-

9)     On perusal of the complaint it is observed that the complainants are partners of partnership firm by name M/s.Suresh Electricals. The nature of business of the complainant firm is purely commercial. The partnership firm consisting of the present 4 partners that too they were Class-I Contractors. The nature of the work of the said firm by the said partners have entrusted the tender work of engaging man power for operation and maintenance of Shanti Sagara, Vani Vilas Sagara and city drinking water supply from 2014-2015 to 2019-2020 by engaging employing 82 employees on daily wage basis for all the said project for execution of said work from time to time.

 

10)   The main contention taken by the partners of the firm is that, after discharging work entrusted by OP-1, due to delay in making payment of ESI & EPF amount to opponent 2 to 4 by complainant firm is that, opponent -1 have failed to pay the bill amount submitted by complainants of the firm in time and with this complainants of the firm well have to face crucial problem for which they made opponent-1 is liable.

 

11)   On observing above said facts it is very clear that, the complainants are the partners of the partnership firm i.e. complainants are discharging contract work thereby complainants are not coming under the definition of consumer. There is no consideration in between complainants and opponent-1. The work discharged by complainant firm is only by way of contract workers.

 

12)   Such being the reason complainant/firm is not coming under definition of Consumer under Consumer Protection Act-2019.

(7) "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 service 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 service other than the person who hires or avails of the services 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 service for any commercial purpose.

 

 

The Hon’ble National Commission, New Delhi, in a case of Mahesh Kumar-Petitioner V/s M/s Subhankar marketing pvt., limited and others-Respondents, reported in CPR 2016(2) Page No.865 (NC), it is observed that Commercial users can’t maintain consumer complaint.

 

Further cases referred. 1) Laxmi Engineering works V/s P.S.G. Industrial Institute. (1995) 3 SCC 583 (para-11).

 

2)     Cheema Engineering Services V/s Rajan Singh, (1997) 1 SCC 131: (1997) 1 Supreme 51. (Para-12).

 

Further on perusal of the facts of the complaint it is referred that, complaint was highly belated. As per the citations reported in CPR 2021 (2) Page No.569 of the Hon’ble National Commission in a case of Rakesh Tirath-Appellant V/s Delhi Development Authority-Respondent, the important point is that, complaint was highly belated and the complainant seizes to be a consumer in terms of the provisions of C.P.Act.

 

Hence as discussed above, the complaint is not maintainable before this Hon’ble Commission and accordingly we proceed to pass the following

 

ORDER

        The complaint filed by the Complainant is not maintainable before this Commission for adjudication on limitation and maintainability. Hence the same is hereby rejected.

Supply free copy of this order to both parties.

 

(Dictated to stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 22^nd April 2022)

 

 

 

MEMBER                                              P/MEMBER

Msr