BEFORE THE DIST. CONSUMERS DISPUTES REDRESSAL FORUM; DHARWAD.
DATE: 30th October 2014
PRESENT:
1) Shri B.H.Shreeharsha : President
2) Smt.M.Vijayalaxmi : Member
Complaint No.:13/2014
Complainant/s:
National Plastic Industries, M/5, 1st Gate, Industrial Estate, Gokul Road, Hubli. R/by its Managing Partner, Noor Ahmad S/o.Allauddin Chanbhai, Age: 40 years, R/o.Gokul Road, Hubli.
(By Sri.R.B.Kinnal, Adv.)
v/s
Respondent/s:
Vijay Chetty, Age: Major, Occ: Proprietor, Sri Sai Industries, Dwaraka Industrial Estate, Gala No. A/9, Naik Pada, Waliv, Vasai Estate, Dist.Thane, 5880248, Maharashtra State.
(By Sri.S.T.Patil, Adv.)
O R D E R
By: Smt.M.Vijayalaxmi: Member
1. The complainant has filed this complaint against the respondent for a direction to supply the DC attach of the first machine, and to supply the 2nd machine and also to pay Rs.15,56,200/- with interest @15% from 08.08.2012 to till realization along with cost of the proceedings.
2. In the complaint complainant contended that, the respondent is a manufacturer of plastic injection molding machine and carrying on his business at Thane. In the year 2012 the respondent approached the complainant at Hubli and introduced himself as the Proprietor of the said industry and impressed about his plastic molding machines. Talks were held between the complainant and the respondent and the complainant told the respondent that he is in need of 2 machines for his establishment and placed on order for (1) 350 tons fully automatic injection molding machine with the stroke weight 800 gms with DC attached with micro processor with 4 plate machines). The cost of the said machines was Rs.35 lakhs and (2nd) 180 tons fully automatic injection molding machine with the stroke weight 400 gms with DC attached with micro processor with 4 plate machine). The cost of the machine was Rs.19 lakhs. The order was accepted by the respondent and a performa invoice was sent by respondent to the complainant, wherein 2% VAT tax for Rs.1,08,000/- was also added. In all the worth of the said 2 machines was Rs.55,08,000/-. In the said performa invoice it was specifically mentioned the terms and conditions of the columns.
3. Accordingly the complainant approached the Canara Bank for the purpose of loan to purchase the said machines. The bank authority also agreed to sanction the loan. Accordingly, the complainant after getting the loan immediately on 08.08.2012 sent 3 DDs for total worth of Rs.22,03,200/- drawn on Canara Bank, Hubli. After the payment the respondent was supposed to supply the machine within 90 days from the date of the order. But the respondent was negligent and supplied the first machine after 8 months i.e. on 02.04.2013. Before the said supply the respondent had written 2 letters dtd.22.03.2013 to the Manager, Canara Bank, Laxminagar Branch, Hubli, to pay the balance amount of 60% for the 1st machine. In the said letter the respondent had mentioned that, the said machine has been completed and asked the Manager to send the money by RTGS. In the 2nd letter, the respondent has mentioned that, the 2nd machine is in the trial process and will be completed and delivered from 15.04.2013 to 30.04.2013. But he has not kept his promise. The respondent even did not supplied the complete first machine. He failed to supply DC attach which was an important part in the said machine. DC attach means “A double color machine which will help to manufacture the plastic instruments with different colors added”. The complainant again asked the respondent to supply the DC attach and 2nd machines, but the respondent till today failed to supply the machines. The respondent demanded remaining 60% amount of the 1st machine as per the performa invoice. Then the complainant paid Rs.20,60,000/- on 02.04.2013 through RTGS from Axis Bank Hubli. Immediately after receipt of the amount the respondent promised the complainant that he would send the machine within one week’s time as promised to the bank and further promised that he would send the DC attaché of the first machine also while sending the 2nd machine. Even till today the respondent having taken the amount has not supplied the 2nd machine and DC attach of 1st machine.
4. The complainant is an young entrepreneur and started the business with the hope that he will develop the business and capture the market. But on account of the negligence and deficiency of service of respondent the complainant could not manufacture the plastic instruments on account of non supply of machines. The 1st and 2nd machines both are inter connected, in the 1st machine big items like bucket, tubes will be manufacture. In the 2nd machine the handles for buckets, mugs, jugs will be manufactured. The buckets which are manufactured in the 1st machine becomes useless if the handles for the said buckets are not manufactured because of the 2nd machine and they cannot be sold in the market without handles. Hence the complainant become handicapped on account of non supply of the 2nd machine by the respondent. The complainant having availed the loan of the bank is paying huge interest on the said loan. On account of non supply of the said machines till today, the business of complainant come to the stand still and the bank people are approaching the complainant to repay the loan which has become practical impossible for complaint to repay the loan of the bank. The bank officials are again warning the complainant to repay the loan intime or else they would seize the industry. The bank authorities also addressed a letter to the respondent on 11.10.2013 to supply the said machine immediately or they would initiate against him. The respondent has neither supplied the machines nor replied to the banker.
5. The respondent having taken the money from complainant and having agreed to supply the machine within 90 days and not supplied, which has caused great financial loss to complainant. The respondent has collected money from complainant is deficit in service and have illegally and unlawfully gained profits by keeping the money from complainant. The complainant again has contacted the respondent over telephone and has personally gone to the place of the respondent & requested him to supply the machine, but the respondent is making false promises and not supplied the machines till today. The respondent written a letter to the complainant on 13.10.2013 and assured the complainant that he would supply the DC attach of 1st machine on or before 27.10.2013, but failed to do so. The respondent has defaulted in supplying the materials. On acts of respondent, the complainant had to unnecessarily pay the interest to the bank. The complainant believed the version of respondent and entered into the contract, but the respondent failed to perform his part of contract. Hence, complainant approached this forum seeking the relief. Hence, filed this complaint against the respondent.
6. Respondent appeared and filed his written version contending that, the complaint filed by the complainant is not maintainable in the eye of law or on the facts of case. The contents of complaint para 1 to 13 of complaint are partly true and partly false. Respondent contended that, the para.2 of the complaint is true, but para.3 is partly true and partly false. The complainant himself approached the respondent in the office of respondent and expressed that he is in need of 2 machines for his plastic molding industry, but it is utterly false to state that the complainant has placed order for 350 tons of fully automatic injection molding machine with stroke weight 800 gms with DC attach with micro processor with 4 plate machine costing Rs.35 lakhs and 180 tons of fully automatic injection molding machine with the stroke weight 400 gms with DC attached with micro processor with 4 plate machine costing Rs.19 lakhs. Further denied that the 2% VAT for Rs.1,08,000/- as stated in para.4 of the complaint is false. The 2% is against VAT tax C form to be submitted by complainant to the Tax Department. It is further false to state that worth of 2 machines was Rs.55,08,000/-. As per the original performa it is agreed that 40% advance amount has to be paid by the complainant along with the firm order and balance amount shall be given at the time of delivery. That the performa dtd.25.07.2012 relied by the complainant is fabricated, false, bogus and which is strongly denied by this respondent. It is true that the complainant approached the Canara Bank for the purpose of loan. The bank authorities and complainant has paid amount of Rs.22,03,200/- by way of DD on 08.08.2013 to the respondent. It is false to state that after the payment of respondent was supposed to supply the machine within 90 days from the date of order, but respondent was negligent and supplied the 1st machine after 8 months. It is false that respondent demanded 60% of the amount of the 1st machine as per perform invoice. It is true that complainant has paid Rs.20,60,000/- on 02.04.2013. That the remaining contents of para.7 of complaint all are false and denied by this respondent. The complainant has filed this complaint with an intention to harass this respondent. The complainant has not paid the amount as agreed with the respondent. That the complainant did not perform his part of contract, hence the question of sending of 2nd machine to the complainant will not arise. The respondent has kept the 2nd machine ready long back, because of non payment of the said machine is not given to the complainant. Because of the attitude and conduct on the part of complainant, respondent is suffering heavy loss by manufacturing the machine and he has to be compensated for the same.
7. Further contended that, the complainant does not have any cause of action to file this complaint. The transaction between respondent and complainant has taken place in the Thane district of state of Maharashtra & this Hon’ble Court do not have a territorial jurisdiction to try this case. The dispute between the complainant and respondent is not a consumer dispute, it is a commercial dispute. On this ground the complaint is liable to be rejected. The complainant has not come up before this forum with clean hands and has suppressed the material facts of the case. Hence under these grounds respondent prays for dismiss the complaint with costs.
8. On the said pleadings the following points have arisen for consideration:
- Whether complainant is a consumer ?
- Whether complainant has proved that there was deficiency in service on the part of respondent ?
- Whether complainant is entitled to the relief as claimed ?
- To what relief the complainant is entitled ?
The complainant filed her affidavit along with documents and written argument along with citations. The respondent appeared filed written version, affidavit along with documents and written argument with citation. Argument of Complainant and respondent are heard.
Finding on points is as under.
Point No.1 to 3: Affirmative but Accordingly
Point No.4. As per order
Reasons
Points 1 to 3
9. The complainant filled this complaint against the respondent for deficiency in service of respondent for nonsupply of machines.
10. The respondent is a manufacture of plastic injection molding machine and sells them. The respondent carrying his business at Thane. In the year 2012 the complainant agreed to purchase two machines from the respondent for Rs.55,08,000/-. The order was placed on 20.07.2012 and subsequently on 25.07.2012 the order was modified and the respondent agreed to supply 2 machines automatic injection molding machine. The first machine was to be delivered on 02.04.2013. On 8/8/2012 the complainant and bank authority was paid Rs.22,03,200/- by way of DD from and on 2/4/2013 he paid Rs.20,60,000/- through RTGS from Axis bank Hubli.
11. The respondent was supplied first machine to complainant but first machine one part i.e. DC Attach and 2nd machine not supplied by respondent. Hence complainant approached to respondent through phone, letters and notice. But respondent not responded. Hence complainant file this complaint against the respondent. The complainant had taken loan from bank and he had to spend large amount on the machine. The complainant’s claim is that respondent to supply two machines and Rs.50,56,200/- as compaination of loss and mental agony along with interest at rate of 15% PM and cost of proceedings.
12. The respondent appeared and filed his written version contending that, the complainant is not a consumer. It is a commercial dispute. Complaint is not maintainable. No cause of action arise and this forum do not have territorial jurisdiction to try this case. The complainant himself approached the respondent in the office of respondent. The complainant says the place of order for machine 350 tons and 180 tons fully automatic injection molding machine is false. The perform invoice dtd.25.07.2012 relied by the complainant is fabricated, false, bogus and which is strongly denied by this respondent. The complainant has not paid the amount as agreed with the respondent. That the complainant did not perform his part of contract. Hence, the question of sending 2nd machine to the complainant will not arose. It is false that respondent demanded 60% of amount of 1st machine as per the invoice. Respondent is suffering heavy loss by manufacturing the machine and he has to be compensated. On this ground prays for dismissal of the complaint.
13. The respondent has contended that the said transaction for purchase of machines are commercial transaction. Hence, the complainant is not a consumer and complaint is not maintainable.
14. But on perusal of the documents the complainant has purchased 2 machines as per invoice no.104 dtd.25.07.2012. The respondent has supplied or delivered one machine to complainant i.e. 350 tons. The respondent has not supplied the part of the 1st machine i.e. DC Attach & 2nd machine containing 180 tons. As per the agreement the respondent ought to have supplied 2 machines as per invoice, but respondent has not supplied said machines. The complainant has not utilized the said machines for commercial purpose. As per the order the respondent has not delivered 2 machines, the deficiency of service caused on the part of respondent at the initial stage i.e. at the time of purchase of machines, then the question of utilize of said machine for commercial purpose does not arise at all. The complainant has not utilized the said machine for commercial purpose on account of non supply of 2nd machine. If any activity or transaction is for the purpose of profit making it becomes commercial. But in this case the respondent not supplied the 2nd machine and part of 1st machine. Hence, complainant not making any profit. Hence said transaction is cannot be said commercial purpose. The complainant order placed for purchase of machine. But not to get profit due to non supply of machines. Therefore it is not a commercial purpose & the complainant is a consumer within the meaning of Sec.2(1) (d) of CP Act & the present complaint filed by complainant is maintainable.
15. The Respondent contended that this forum has no jurisdiction to entertain the complaint. The transaction has taken place at Thane. Complainant contended that all the transaction taken place at Hubli. On perusal of the documents respondent supplied 1st machine at Hubli and payment sent to respondent through bank of Hubli and respondent approached to complainant at Hubli. But on perusal of the document respondent supplied the 1st machine in the Hubli. Then 1st machine one part and 2nd machine not supplied by respondent. Hence, part of cause of action arisen in Hubli. Hence, this forum got jurisdiction to entertain the complaint.
16. Main disputed point is that, date of order placed i.e. 20.07.2012 or 25.07.2012. According to complainant order placed 350 tons and 180 tons machines. As per invoice no.104 dtd.25.07.2012. But respondent contended that invoice no.104 dtd.25.07.2012 is a fabricated document, false and bogus document. Hence this document denied by respondent. Respondent stated complainant was order placed and sanctioned loan, according to quotation dtd. 20.07.2012.
17. On perusal of the documents, the complainant has been sanctioned loan as per invoice no.104 dtd.20.07.2012 but thereafter complainant wrote a letter to Bank dtd.03.08.2012 i.e. Ex.C15. In this letter complainant mentioned that the quotation for the machine was given of Sai Industries at Thane dtd.20.07.2012 vide invoice no.104 for Rs.55,08,000/- including VAT tax. Now since there was some typing error in the given invoice as above, I herewith enclosed the invoice no.104 dtd.25.07.2012 for Rs.55,08,000/- including tax with the correct descriptions of the machineries issued by M/s.Sai Industries, Thane. Kindly disburse the loan and issue DD accordingly. There is no difference of quotation amount & invoice number. In this letter bank has received and bank seal are there. Bank received dtd.03.08.2012 i.e. Ex.C-15. Ex.C-16 it is photo copy of the invoice dtd.25.07.2012 held with bank loan records. Respondent says Ex.R1 is order placed by complainant dtd.20.07.2012 i.e. 250 tons and 180 tons. As per that invoice total amount of Rs.55,08,000/-. Respondent has produced Ex.R2 dtd.11.10.2013. In this letter Respondent contended that, the quotation mentioned invoice no.104 dtd.20.07.2012 is mentioned by bank. Hence complainant placed order on 20.07.2012. But on perusal of document i.e. Ex.C9 dtd.31.03.2013 it is 1st machine supplied to complainant but received complainant through courier on 02.04.2013. But Ex.12 says that respondent sent machine 350 tons & this document he assured send additional 2 colour automatic will be supply on 27.10.2013 and will be filled as it reach to Hubli for 350 tons molding machine. These document shows respondent sent 1st machine to complainant i.e. 350 tons. Respondent as per invoice dtd.20.07.2012 250 tons machine not sent. It means respondent accepted 350 tons machine and Ex.C2 dtd.25.07.2012 considered this invoice no.104 mentioned 350 tons and 180 tons machines. In this invoice respondent had signed i.e. original signature and total amount Rs.55,08,000/-, but respondent denied this document says that it is fabricated, but why respondent not referred to expert ? the respondent not challenged to this document. The respondent sent 350 ton machine to complainant it shows that respondent agreed to supply 350 tons machine and 180 tons machine as per invoice dtd.25.07.2012. Complainant paid advance 40% of amount as per invoice. Balance amount is payable at the time of delivery. Respondent not delivered part of the 1st machine and 2nd machine as per invoice and also delivery of the machine shall be given within 90 days from the date of order but respondent not supplied. About this bank authorities approached to respondent to supply the machine to complainant. Therefore bank wrote letter to respondent i.e. Ex.C4 and C11. Ex.C5, C6, C7 and C12 these documents show that respondent assured to complainant but not supplied the machine hence, Canara Bank wrote a letter to respondent to supply the machine i.e. Ex.C4 & C11.
18. In the cross examination of complainant, complainant admitted that 350 ton machine received from respondent. Respondent contended that complainant not paid the 60% of amount of 1st machine remaining Rs.1,04,800/- balance is there complainant not paid hence, 2nd machine not supplied. But on perusal of the documents the complainant has taken loan from Canara Bank for the purchase of said machines. Bank authorities also agreed to sanction the loan. Canara Bank also wrote a letter to respondent to supply 2nd machine and 1st machine part of DC attach to the complainant. But respondent not supplied. Respondent in his letters taking time to deliver the 2nd machine but not supplied. Hence the respondent caused deficiency in service and failed to provide the service to the complainant. Complainant taking a loan hence bank authority paid the machine amount, but respondent not supplied the said machines. Hence the complainant did not paid the amount to the 2nd machine. In the invoice mentioned condition and terms i.e. after the delivery of machines remaining balance amount will be payable. 1st machine and 2nd machine both are inter connected hence without one machine complainant not produced any products. Hence respondent to supply 2nd machine and part of the 1st machine to the complainant, the complainant will pay the 2nd machine amount and 1st machine balance amount to the respondent. Respondent further contended that complainant not submitted the C form to the tax department, the complainant contended that, after delivery of both machines complainant submitted C form to the tax department. Respondent in the cross examination of the complainant asking the question that 350 ton machine value is Rs.40 lakhs, but about this respondent not produced any document or agreement between the respondent and complainant. At the time of argument respondent argued that orally agreed the said amount between the complainant and respondent. Without document we cannot accept the said contention. In this case complainant claiming the 2nd machine and part of the 1st machine i.e. DC Attach. Hence, question of 1st machine does not arise, because already supplied to 350 ton machine to the complainant. Hence, respondent will be supply 2nd machine and 1st machine part to the complainant and complainant to pay 2nd machine amount payable to respondent after delivery of above said machines. Complainant to submit C form before the Tax Department or respondent.
19. Complainant has produced citation 2007 (1) CPR 96 NC in this decision National Commission held that, for the aforesaid reasons we feel that the case of the complainant could not be thrown away by saying that it was meant for commercial activity / purpose in addition to above, the meaning define of industrial goods in Black’s Law Dictionary.
20. Respondent has produced citations LAWS (NCD) 1990 & LAWS (NCD) 2000 & LAWS (NCD) 1989. In these decisions held that, the machine was purchased for commercial purpose that being so the complainant is not a consumer hence complaint is rejected. But in these cases complainant purchased said machines and installed said machines thereafter defected in the machines. But in the instant case complainant order placed but respondent supplied only one machine 2nd machine not supplied due to non supply of the machine complainant not produced any materials.
21. The complainant has taken loan so he has to pay interest on said amount. But due to non supply of machine the complainant not produced any products. Hence, complainant suffered mental agony and loss of finance. Hence complainant is entitled to compensation.
22. In view of the above discussions we have arrived and proceed to held issue.1 to 3 in affirmative but accordingly.
23. Point.4: In view of the finding on points 1 to 3 proceeded to pass the following
Order
The complaint is partly allowed. The respondent is directed to supply the subsidiary equipments to the 1st machine viz., DC attach with micro processor with 4 plates machine under proper condition along with Rs.25,000/- compensation for loss and mental agony and Rs.2,000/- towards cost of the proceedings to the complainant. Further the complainant is directed to pay 40% of the 2nd machine in advance & the respondent to deliver the second machine with all its attaching accessories and to produce invoice to the complainant’s bank. In turn the complainant’s bank to release the balance 60% towards cost of the 2nd machine. The complainant shall deliver “C” form with respect to 2 machines to the respondent as required. If the complainant failed to deliver “C” form the respondent is entitled for recovery of the amount towards VAT with respect to the “C” form. The respondent shall comply this order within 4 weeks from the date of receipt of certified copy of this order. So also the complainant shall also assist and to do his part of performance as observed. In the event the respondent failed to comply and supply the machines after receipt of 40% of advance amount, the said advance amount shall carry interest @12% P.A. from the date of payment till delivery of the machines and completion of transaction.
(Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on 30th day of October 2014)
(Smt.M.Vijayalaxmi) (Shri.B.H.Shreeharsha)
Member President
Dist. Consumer Forum Dist. Consumer Forum
MSR