West Bengal

Paschim Midnapore

CC/154/2012

Abdul Rouff - Complainant(s)

Versus

The Divisional Manager, Forest Corporation(West) West Bengal Forest Development Corporation L - Opp.Party(s)

26 Apr 2013

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

PASCHIM MEDINIPUR.

 

 Complaint case No.154/2012                                                         Date of disposal: 26/04/2013                               

 BEFORE : THE HON’BLE PRESIDENT :  Mr. K. S. Samajder.

                                                      MEMBER :  Mrs. Debi Sengupta.

                                                      MEMBER :  Mr. Kapot Chattopadhyay.

    For the Complainant/Petitioner/Plaintiff : Mr. S. Dutta. Advocate.

    For the Defendant/O.P.S.                           : Mr. P. Dey. Advocate & Mr. S.K.Basu, Accounts 

                                                                            Officer (south), W/B. Forest Dev. Crop. Ltd.

          

Abdul Rouff S/o-late Waheedan Nobi of Inda-Panchberia, P.O.-Inda, P.S.-Kharagpur(T), Dist-Paschim Medinipur, partner of M/S.UCON, A Partnershipfirm, having it’s place of business at Panchberia, P.O.-Inda, P.S.-Kharagpur(T), Dist-Paschim Medinipur …………Complainant.

                                                              Vs.

1. The Divisional Manager, Forest Corporation(West) West Bengal Forest Development

      Corporation Ltd. having one of its offices at Midnapore, P.O.-Midnapore, P.S.-

      Kotwali,  Dist-Paschim Medinipur

2. The Divisional Forest Officer, Rupnarayan Division, Rangamati, P.O.-Vidyasagar

      University, P.S.-Kotwali,  Dist-Paschim Medinipur………Ops.

  The complainant contended that he placed order to the Ops. for supply of total 964 Nos. of sal poles and for that purpose paid Rs.5,59,260/- (Five lakhs fifty nine thousand two hundred sixty only) by a demand draft to the Op. no.2. Upon receiving the said demand draft the Op. no.2 issued delivery order and 08/04/2010 the complainant took part delivery of sal poles worth Rs.3,57,763/-(three lakhs fifty seven thousand seven hundred sixty three only) and accordingly sal poles worth Rs.2,01,497/-(Two lakhs one thousand four hundred ninety seven only) remained outstanding and due from the Ops. Thereafter the petitioner made continuous correspondences with the Ops. but they neglected in making delivery of the remaining sal poles.

              Hence this Case.

The Ops. contested the case by filing a written objection. It appears from the written objection of the Ops. That it is not denied that the complainant paid Rs.5,59,260/- (Five lakhs fifty

Contd…………..P/2

 

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nine thousand two hundred sixty only) for total 964 Nos. of sal poles out of which sal poles worth

Rs.3,57,763/-(three lakhs fifty seven thousand seven hundred sixty three only) were delivered to the complainant and the poles for the balance amount i.e. Rs.2,01,497/-(Two lakhs one thousand four hundred ninety seven only)remained undelivered. However the Ops. categorically stated that the complainant is a partnership firm and the order for delivery of huge no of sal poles was placed for business purpose of the complainant. So, accordingly to the Ops. the case is not maintainable as the complainant is not a Consumer within the meaning of the term, ‘Consumer’ under Sec-2(d)(i)(ii) of the Consumer Protection Act-1986. The Ops. further contended that last consignment was delivered in the month of May-2010 and there after nobody from the complainant contacted the Ops.

On these ground, the Op. prayed for dismissal of this case.

It is for our consideration in this case as to whether the complainant is entitled to get the relief as claimed.  

Decisions with reasons

 In this case it is admitted that the complainant deposited Rs.5,59,260/- (Five lakhs fifty nine thousand two hundred sixty only) to the Ops. on 07/04/2010 towards cost of 964 nos. of sal poles out of which the complainant got sal pole worth Rs.3,57,763/-(three lakhs fifty seven thousand seven hundred sixty three only) and remaining poles valued Rs.2,01,497/-(Two lakhs one thousand four hundred ninety seven only) remained undelivered. The Ops. stated that after the last delivery in May-2010 nobody from the side the complainant contacted the Ops. Before going into that question we think we should go into the question as to whether the complainant can be termed as consumer in view of the provision of Consumer Protection Act-1986 because the fate of this case very much hinges on that point.

The specific objection of the Ops. was that the complainant is a partnership firm and the transaction was made for business purpose and as such the case is not maintainable.

In reply, it was argued on behalf of the complainant that the complainant is a bonafide businessman and the said business is only source of bread and butter. So it can not be said that he is not a consumer under the C.P. Act-1986.

This case has been filed by Abdul Rouff on behalf of M/S UCON, a partnership firm and Abdul Rouff described himself to be a partner of that firm. Therefore it is clear that Abdul Rouff has represented the firm and filed this case on behalf of the firm of which he is a partner. The documents filed on record on behalf of the complainant clearly shows that all correspondences and other acts were made by Abdul Rouff not in the capacity of an individual but as a partner of M/S UCON, a partnership firm but petition complaint as well as the affidavit appended to the complaint petition shows that Abdul Rouff has filed this case in the capacity of an individual and we find no

Contd…………..P/3

 

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mention in the affidavit that he is swearing the same as a partner of the firm. This is clearly not only misleading but deliberate suppression of fact and on this ground only petition of complainant is liable to be dismissed.

We have already found that every deal was done by Abdul Rouff in the capacity of partner of the firm and not as an individual. The firm ordered for delivery of 964 nos. of sal poles. Certainly such huge nos. of sal poles were ordered for the purpose of use in the business of the firm. Nowhere has it been stated that Abdul Rouff is the proprietor of the business and doing his business for earning livelihood by self employment. The firm in question is a partnership firm and certainly having more than one partner and the partnership firm has been formed for the purpose of earning and sharing of the profit. The petition of complaint also shows that the complainants has got huge lands in and around Kharagpur and those are required to be fenced by sal poles. This fact also goes to show huge business activity of the complainant. Therefore upon proper consideration of the facts & circumstances of the case and the materials available on record we are of the view that the complainant being a partnership firm having commercial activities can not be said to be a consumer as per the definition of consumer  as laid down u/s-2(d)(i)(ii) of the Consumer Protection Act 1986. Our such view is fortified by the decision of Hon’ble Chhattisgarh  State Commission in the case of Ganges Water tank Industries  Vs.  Assistant Engineer (City) Revenue, C. G. State Electricity Board, Ambikapore -2012 (3CPR-Page-17).

Accordingly the case is found to be not maintainable and going into the other question will be purposeless.

               Hence, it is,

                                    Ordered,

                                                    that the case be dismissed on contest but considering the circumstances without cost.

Parties be supplied the copy of Judgement free of cost.

Dic. & Corrected by me

              

         President                                Member              Member                                  President

                                                                                                                              District Forum

                                                                                                                          Paschim Medinipur.