The complainant Pardeep Kumar (here-in-after referred to as complainant) has filed this complaint U/s 12 of Consumer Protection Act, 1986 (Now C.P. Act, 2019, here-in after referred to as 'Act') before this Forum (Now Commission) against Chief Administrator, BDA and another (here-in-after referred to as opposite parties).
Briefly stated the case of the complainant that opposite parties invited tenders for providing the work of road lighting at Central verge from Tinkoni to Bus Stand at Mansa. The tender of the complainant was successful and same was accepted by opposite parties and verge for providing the work of road lighting and central work from Tinkoni Road to Bus Stand Mansa was given to him. He has successfully completed upto 95% of the work for providing the work of road lighting and central work from Tinkoni Road to Bus Stand Mansa. The first and second running bills have been sanctioned and M.B work has also been completed.
It is alleged that after receiving the first and second running bills, the complainant wrote letters dated 12.7.2017 and 21.8.2017 to opposite parties and requested them to make the payment. In reply to these letters, opposite parties have written letter dated 7.9.2017 in which it is admitted that the complainant has completed 95% of the work, but due to lack of funds, there is delay in making payment of bill. After receipt of this letter, the complainant wrote a reminder and third letter dated 20.3.2018 requesting opposite parties for making the payment. After receipt of this letter, opposite parties started making orally linger on the matter by saying that they will make the payment of the bill, but to no effect.
It is further alleged that the complainant got issued a legal notice dated 5.4.2018 through his counsel and requested opposite parties to make the payment of Rs.11,33,058/- less 12.84% after discount in the tender i.e balance Rs.9,87,573/- from 2.3.2017 till today (including interest), but despite this, nothing has been done.
On this backdrop of facts, the complainant has prayed directions to the opposite parties to pay claim amount of Rs.9,87,573/- alongwith upto date interest thereon and to pay Rs.5,00,000/- as damages in addition to Rs.55,000/- as costs of litigation expenses.
Upon notice, the opposite parties appeared through counsel and contested the complaint by filing written version. In their written version, they have raised the legal objections that complaint is not maintainable. The complainant has no locus-standi to file the complaint. As such, the complaint is liable to be dismissed. It is bad for non-joinder of necessary parties. In fact, the tender was called on behalf of The Deputy Commissioner, Mansa under the Urban Mission of Punjab Mandi Board on the request vide letter No.9782/REA/dated 28.10.2016. Opposite parties were asked to get executed the same even without making any payment of any Administrative charges. Opposite parties informed the Deputy Commissioner Mansa vide letter No.DE/B/BDA/BTI/2016/2255 dated 18.11.2016 that competent authority has decided that departmental charges have been waived off. The rough cost estimate was also informed to the Deputy Commissioner, Mansa and necessary sanction was accorded by the Deputy Commissioner Mansa vide letter No.10807/REA/dated 2.11.2016. The funds were to be released by the office of Deputy Commissioner, Mansa as standard bidding, document Clause 2.3. This Clause is reproduced as under:-
"PUDA shall not be responsible for non release of funds by the concerned department in case of deposit work". It is very well made clear in the bidding documents and the complainant after seeing and understanding the mode of payment has uploaded his bid.
Further legal objections are that the complainant has not come to this Forum with clean hands and tried to keep Forum under dark. As such, he is not entitiled to any relief. He does not fall under the definition of 'consumer' as defined under the provisions of 'Act' as amended upto date. He is buying the goods for using the same for commercial purpose. The bidding document itself is commercial activity for commercial purpose to earn profit. The purpose of buying the electrical items is commercial purposes or purely for resale or availing such services for commercial purposes. The complainant is not squarely covered under the definition of 'consumer'. There is no deficiency on the part of opposite parties. He is fully aware about the tender documents and has uploaded his rates after acknowledging, understanding and accepting terms and conditions of tender document and opposite parties are not liable to make any payment at all.
On merits, it is pleaded that the complainant is the proprietor of M/s Jai Durga Electrical, Gill Bazar, Rampura. M/s Jai Durga Electrical is a member of EPF having employed more than 20 persons vide No.PB/BTI/28893/5526 dated 23.9.2005 whose established/factory is engaged in trading or commercial activity. He is an authorized dealer of M/s Bajaj Electrical Ltd. for the year 1.4.2016 to 31.7.2017 vide authorization letter dated 1.4.2016 and selling the articles of Bajaj Electrical Limited for profit and is carrying commercial activity and is not 'consumer' under these circumstances.
It is pleaded that the tender was called and accepted by opposite parties. The letter dated 7.9.2017 was addressed to the Deputy Commissioner, Mansa seeking funds for providing road lighting at Central verge from Tinkoni to Bus Stand Mansa vide letter No.DE/B/BDA/BTI/2017/1479 dated 7.9.2017 and copy was sent to the complainant to apprise him about the efforts being made by opposite parties by clearly indicating that opposite parties are executing authority of the work and funds are to be released by Deputy Commissioner, Mansa at whose instance e tender was floated, but the complainant did not bother to implead the office of Deputy Commissioner, Mansa for the reason being known to him.
It is further pleaded that the office of the Deputy Commissioner, Mansa had to release the funds. No payment has been received from the office of Deputy Commissioner, Mansa and payment has not been released to the complainant and there is no deficiency on the part of opposite parties. Rather, opposite parties had rendered free services by waiting off the administrative charges. In further written version, opposite parties have reiterated their stand as taken in legal objections and detailed above and controverted all other averments of the complainant and prayed for dismissal of complaint.
In support of his complaint, the complainant has tendered into evidence affidavit of Pardeep Kumar dated 31.7.2018 (Ex. C-11) and documents (Ex.C-1 to Ex.C-10).
In order to rebut the evidence of complainant, opposite parties tendered into evidence affidavit of Sanjiv Kumar Gupta dated 18.10.2018 (Ex. OP1/1) and other documents (Ex. OP1/2 to Ex. OP1/7).
We have heard learned counsel for the parties and gone through the record.
The learned counsel for the parties have reiterated their stand as taken in their respective pleadings and detailed above.
We have given careful consideration to these submissions.
Learned counsel for opposite parties vehemently argued that the complainant is not 'consumer' of opposite parties and even he does not fall under the definition of 'consumer. So, we are of the veiw that before going to the other merits of the complaint, firstly, it is required to be decided that whether the complainant falls under the definition of 'consumer' and he is 'consumer' of opposite parties or not.
As per section 2(7) of Consumer Protection Act, 2019:-
“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 services for a consideration which has been paid or promised or partly paid and partly promised, or under system of deferred payment and includes any beneficiary of such services 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 or with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes.
Explanation:- for the purposes of this clause-
a) the expression 'commercial purpose' does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self employment.”
A perusal of file reveals that opposite parties invited tenders for providing the work of road lighting at Central verge from Tinkoni to Bus Stand at Mansa, which was called on behalf of The Deputy Commissioner, Mansa and tender of the complainant was successful. Admittedly, the complainant has completed 95% of the work, but due to lack of funds, there was delay in making payment of bill. Opposite parties further wrote letter dated 28.10.2017, (Ex.C10) to The Deputy Commissioner, Mansa to release the payment to the complainant as the funds were to be released by his office as standard bidding. As per Clause 2.3, PUDA shall not be responsible for non release of funds by the concerned department in case of deposit work.
Thus the main dispute in this complaint is regarding release of payment and funds were to be released by The Deputy Commissioner, Mansa, but The Deputy Commissioner, Mansa has not been impleaded as party in this complaint.
From the perusal of file, it is not revealed that either the complainant bought any goods for consideration or hired or availed any service for consideration, rather it is established that opposite parties hired services of the complainant. As such, the complainant does not fall under the definition of 'consumer' and he is not 'consumer' of opposite parties. So, this complaint is not maintainable before this Commission and when the complaint is not maintainable, we are of the view that the findings of this Commission are not required on the main allegations of complainant against opposite parties.
In view of discussed above, the complaint is hereby dismissed without any order as to cost. However, the complainant is liberty to approach before the appropriate Court/Authority for redressal of his grievances. The complainant is liberty to invoke the provision of Section 14 of Limitation Act 1963 before competent civil court.
The complaint could not be decided within the statutory period due to heavy pendency of cases.
Copy of order be sent to the parties concerned free of cost and file be consigned to the record room.
Announced :
09-09-2022
(Kanwar Sandeep Singh)
President
(Paramjeet Kaur)
Member
