Chandigarh

StateCommission

A/71/2023

MAHAJAN & MIDHA PRODUCTIONS - Complainant(s)

Versus

CHAMPION ENGINEERING INDUSTRIES - Opp.Party(s)

VIPUL SHARMA ADV.

05 Dec 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T. CHANDIGARH

[ADDITIONAL BENCH]

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Appeal No	:	A/71/2023
Date  of  Institution	:	20/04/2023
Date   of   Decision	:	05/12/2023

 

 

 

 

 

Mahajan & Midha Productions, through its Partner Sh.Damanjit Singh S/o Sh.Charanjit Singh, having its Head Office at 3344, Sector 23-D, Chandigarh.

 

2^nd Address:   Plot No. B-13, Industrial Focal Point, Chanalon, Kurali, District S.A.S. Nagar, Mohali, Punjab.

…. Appellant

 

V E R S U S

 

Champion Engineering Industries, D-22, Focal Point, Rajpura, Punjab.

…… Respondent

 

BEFORE:   MRS. PADMA PANDEY       PRESIDING MEMBER

          PREETINDER SINGH        MEMBER

 

PRESENT	:	Sh. Dhruv Sharma, Advocate Proxy for Sh. Vipul Sharma, Advocate for the Appellant.
		Sh. Larish Setia, Advocate for the Respondent.

 

 

PER PADMA PANDEY, PRESIDING MEMBER

 

 

 

This appeal is directed against the order dated 21.03.2023, 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/86/2023, in limine, holding as under: -

“[viii]   Thus, in view of above facts and circumstances, the Complainant firm does not fall under the definition of ‘consumer’ as defined under the Consumer Protection Act, 2019 as it cannot be said that the Complainant firm carried on the ‘commercial purpose’ exclusively for earning his livelihood by way of self employment. 

          In view of above discussion, this Complaint is not maintainable because it cannot be said that ‘commercial activity’, is carried on by the Complainant exclusively for earning his livelihood by way of self employment.

          Therefore, the Complaint is dismissed in limine.”

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 it is a partnership concern and engaged in the business of production of oil, carbon powder and steel from end of life tyres for which the whole process is carried out through the machinery equipments, which is collectively termed as Tyre Pyrolysis. The Complainant got a Pyrolysis Plant installed from Respondent/Opposite Party on payment of ₹45 lacs. Soon after the said Pyrolysis Plant started its operation on 18.08.2022, there had been some issues due to fault in its design, which was duly intimated to the Opposite Party. However, before any action could be taken on the Complaint of the Complainant by the Opposite Party, there was a huge fire in the premises of the Complainant due to faulty design of reactor on 07.10.2022. In the said incident, the Complainant suffered heavy loss in the factory premises as the reactor, as well as batches of produced material lying therein, were damaged. The said fact was duly brought to the notice of the Opposite Party, but it did not budge either to repair or replace the faulty reactor and instead straight away demanded pending payment of ₹5.74 lacs. Eventually, in order to run the factory the Complainant contacted M/s Shree Balaji Engineering Works who gave quotation of ₹13.00 lacs to change the reactor shell which was damaged in fire on 07.10.2022. 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.      On appraisal of the pleadings and the evidence adduced on record, Ld. Lower Commission dismissed the consumer Complaint of the Complainant/ Appellant, in limine, as noticed in the opening para of this order.     

 

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

 

6.      Upon notice, the Respondent/Opposite Party resisted the claim of the Complainant, inter alia, pleading that the Complainant firm is engaged into large scale commercial activity & not for earning livelihood by means of self employment and thus cannot be held to be a consumer under the Consumer Protection Act, 2019.  

 

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, along with the written arguments advanced on behalf of the Respondent/Opposite Party.

 

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.      It is the case of the Appellant/ Complainant that the Ld. Lower Commission ought to have issued notice to the Respondent/Opposite Party and thereafter could have went ahead to decide the question of maintainability after going through the evidence lead by both the parties, but the Ld. Lower Commission proceeded to dismiss the Complaint in limine without even prima facie going into the merits of the case, which resulted into perverse finding.

 

11.      Record transpires, the Appellant/ Complainant is a manufacturing concern and is engaged in the activity of production of oil, carbon powder and steel from the end of life tyres for which the whole process is collectively termed as Tyre Pyrolysis. 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. 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.

 

12.      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. Moreover, after taking into consideration the income tax returns filed by the Complainant, the Ld. Lower Commission recorded a categorical finding that partner of firm was getting income from two sources and thus, exception to commercial activity is not attracted and when in a partnership firm different partners are in receipt of income from different sources the same does not fall within the definition of ‘consumer’ as provided under Section 2(7) of the Consumer Protection Act, 2019. 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.   

 

13.      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. 

 

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

 

15.      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.

 

16.      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.

 

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

 

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

 

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

Pronounced

05^th Dec., 2023

               Sd/-

                                  (PADMA PANDEY)

PRESIDING MEMBER

 

 

Sd/-

(PREETINDER SINGH)

MEMBER

“Dutt”