Punjab

Ludhiana

CC/18/312

M/s Vallabh Textile Co.Ltd - Complainant(s)

Versus

M/s Greenwich Meridian Logistics - Opp.Party(s)

11 Jun 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No.312 of 07.05.2018

Date of Decision            :   11.06.2018

M/s.Vallabh Textiles Company Limited, G.T.Road, Village Pawa Sahnewal, Ludhiana-141120, through Sh.Suresh Gupta and Mr.Shambu Sharma.

 

….. Complainant

                                                         Versus

1.M/s. Greenwich Meridian Logistics (I) Pvt.Ltd.1007, K.M.Trade Tower (Hotel Radisson Blu)11^th Floor, Kaushambi Ghaziabad, Uttar Pradesh-201010 through its M.D.

2.Mr. Mihir Chandrakant Kotecha Director of M/s. Greenwich Meridian Logistics (I) Pvt.Ltd.1007, K.M.Trade Tower (Hotel Radisson Blu)11^th Floor, Kaushambi Ghaziabad, Uttar Pradesh-201010.

Second Address:-

C-104, Silver Burch, Vasant Gardens, Mulund (West), 400080MH

3.Mr.Bhavesh Narendra Thakker Director of M/s. Greenwich Meridian Logistics (I) Pvt.Ltd.1007, K.M.Trade Tower (Hotel Radisson Blu)11^th Floor, Kaushambi Ghaziabad, Uttar Pradesh-201010.

Second Address:

204-A, C Wind, Silver Burch, Vasant Gardens, Mulund (West) 400080MH.

4.Mr.Nishant Arora authorized representative of M/s. Greenwich Meridian Logistics (I) Pvt.Ltd.1007, K.M.Trade Tower (Hotel Radisson Blu)11^th Floor, Kaushambi Ghaziabad, Uttar Pradesh-201010.

5.Austral-Asia Freight through its M.D.Jeff Harrod, 7-D Kent Street, Yarraville VIC 3013 P.O.Box 811 Yarraville VIC 3013.

…Opposite parties

 

                   (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.VINOD GULATI, MEMBER

 

COUNSEL FOR THE COMPLAINANT:

For complainant            :        Proxy counsel Sh.Vinod Kumar, Advocate

 

PER G.K.DHIR, PRESIDENT

 

1.                Complainant, a limited company through authorized person Sh.Suresh Gupta and Mr.Shambu Sharma filed this complaint by claiming that Op1 is a Shipping Corporation and Freight Forwarder, whereas OP2 and OP3 are Directors of it, but OP4 is the authorized representative. Op5 is an agent of OP1 and OP5 is working under instructions of OP1 to OP4. Complainant approached OP1 to OP4 at the instance of M/s Silveron Pty. Ltd through its authorized representative Mr.Kamal Jotwani and conveyed them about a deal between complainant and M/s Silveron Pty. Ltd. As per that deal between the complainant and M/s Silveron Pty. Ltd, they agreed to buy material, for which, complainant booked two containers, through which, the goods purchased vide invoices dated 3.12.2016 and 30.01.2017 were to be transported/transshipped. Ops agreed to transport/transship these containers from Ludhiana to Melbourne, Australia. Assurance was given that these containers will transport the goods safely and thereafter, those containers will be delivered to the buyers i.e. M/s Silveron Pty. Ltd. Delivery of the goods was to take place on production of original bill of landing/M.T.D. of goods. OPs are nominated shipping line of M/s Silveron Pty. Ltd. Complainant was to deliver the original documents of M.T.D. to the buyers only after receipt of full and final payments of invoices. OPs were required to deliver the containers only after production of original documents of M.T.D. by the buyers. Against the above referred invoices, complainant was to receive 100602.28US$, but complainant received payment equivalent to 51017 US$ only from buyers. Complainant insisted the buyers to make balance payment, so that he could deliver the original documents of MTD to them for getting the delivery from OPs, but buyers have not made the balance payment, due to which, the original documents of M.T.D. were not delivered to the buyers. A dispute arose between the complainant and buyers. Complainant reserves his rights to initiate proceedings against him in competent Court. Email dated 22.12.2017 was sent to OPs for informing them about the applicable charges for releasing of cargo. Even OPs were informed that original M.T.D. are with the complainant. Till January 2018, OPs did not respond and even thereafter, intimation regarding charges to be paid by the complainant was not submitted. Though goods have reached in Australia on 14.1.2017 and 30.4.2017, but OPs did not intimate the charges to be paid by the complainant. As OPs were not making it clear as to whether the goods have been delivered to the buyers or not and as such, complainant was compelled to serve a legal notice. It is claimed that OPs have violated the terms and conditions of agreement with the complainant resulting in loss of Rs.13 lac to the complainant. So, by pleading deficiency in service on the part of OPs, this complaint filed for seeking direction to OPs to pay Rs.18 lac on account of loss/damages suffered by the complainant due to negligence of OPs.

2.                Arguments at the admission stage were heard.

3.                After going through Memorandum of Association and Articles of Association of complainant’s company, it is made out that main objects of the company is to carry on the business of manufacturers, processors, spinners, embroideries, weavers, dyers, knitters etc. Arrangements or agreements or contracts to be entered by the complainant’s company with any person, association firm or corporation for purposes that may seem beneficial and conductive to the objects of the company. So, from perusal of memorandum of association and articles of association, it is made out that business of complainant’s company was to manufacture,       process, spinn, weave or carry on business of brokers, agents etc. In other            words, the main objects, for which, the complainant company brought into existence was to carry on business. It was on account of carrying on this business as manufactures, processors or spinners etc that the complainant entered into contract with M/s Silveron Pty. Ltd, Campbell Fields, Australia for supply of goods. Those goods were to be transported/ transshipped through containers of OPs, of which, OP2 and OP3 are the Managing Directors, but OP4 is authorized representative and Op5 is an agent. It is also the case of complainant that the complainant was to deliver the original documents of MTD to the buyers only after receipt of full and final payment of invoices. Duty of OPs was to deliver the containers only after production of original MTD by the buyers. Though MTD still are with the complainant, but OPs delivered the goods to the buyers resulting in loss to the complainant. So, after going through the contents of whole of the pleadings, it is made out that service of OP1 Company as transporter/transshipper were availed by the complainant in connection with commercial transaction of sale of goods to M/s Silveron Pty. Ltd. As and when services availed for commercial purposes, then the complainant concerned will not be a consumer in view of law laid down in cases titled as R.K.Handicraft and others vs. M/s Parmanand Ganda Singh & Company and others-II(2015)CPJ-13(N.C.); Lords Wear Pvt. Ltd. vs. Rance Computer Pvt. Ltd.-I(2014)CPJ-332(N.C.); Manu Talwar vs. DPT Ltd-IV(2015)CPJ-396(N.C.); Pharos Solution Pvt. Ltd. and others vs.Tata Motors Ltd., Bombay House-2015(IV)CLT-265(N.C.); Jagrook Nagrik and others vs. Cargo Motors Pvt. Ltd. and others-III(2015)CPJ-1(N.C.); Birla Technologies Limited vs. Neutral Glass and Allied Industries Limited-(2011)1-Supreme Court Cases-525(S.C.) and Nikita Cares vs. Surya Palace IV(2015)CPJ-405(N.C.), and as such, certainly this consumer complaint is not maintainable before this Forum.

4.                Facts of the present case are very much identical to the facts of the case titled as The Branch Manager, Punjab National Bank vs. M/s Bhaskar Textile-2015(1)CLT-89, decided by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi. As per ratio of this case, if complainant sends the goods sold by them to another firm through transport, but by sending the papers through OP firm with stipulation that bankers are required to collect the payment before releasing bilti to the firm, then in view of services of Ops virtually availed by the complainant in connection with commercial purpose or in connection with business transaction, complainant concerned will not be a consumer, due to which, consumer complaint will not be maintainable. Ratio of this case is fully applicable to the facts of the present case because here the services of Ops availed by the complainant in connection with commercial purposes or in connection with business transaction of selling the goods to M/s Silveron Pty. Ltd. So, certainly, this consumer complaint is not maintainable  because complainant is not a consumer within the meaning of section 2(1)(d) of the Consumer Protection Act, 1986.

5.                Benefit from ratio of case titled as Central Bank of India vs. Darpan Arts Emporium-2011(4)CPJ-36(N.C.) cannot be availed by the complainant because in this reported case, transaction of export of goods took place in 1999 and complaint was filed in 2000, when the provisions of Section 2(1)(d) of Consumer Protection Act, 1986 were providing for rendering a person as consumer for the services availed or hired for commercial purpose. However, definition of Section 2(1)(d) of Consumer Protection Act, 1986 stood amended by adding explanation w.e.f.15.03.2003 by substituting  Act No.62 of 2002. Now after adding explanation to Section 2(1)(d) of Consumer Protection Act, it is crystal clear that person concerned will not be a consumer, if he hires or avails services for commercial purpose sans for earning livelihood by means of self employment. While laying the distinction between old provisions of Section 2(1)(d) and the amended of provisions of Section 2(1)(d), Hon’ble Supreme Court of India in case titled as M/s.Economic Transport Organisation vs. M/s.Charan Spinning Mills(P) Limited-2010(1)CPJ-4 has specifically held that if after amendment, services of the carrier availed for any commercial purpose, then the person availing services will not be a consumer, due to which, consumer complaint

 will not be maintainable. As the services in this case availed by the complainant for commercial purpose, but without object of earning livelihood by way of self employment and as such, certainly present complaint is not maintainable due to availing of services for commercial purpose..

6.                As a sequel of the above discussion, complaint dismissed at admission stage because of complainant being not a consumer. Copies of order be supplied to the complainant free of costs as per rules. Complainant may avail remedy from Civil Court.  

7.                File be indexed and consigned to record room.

 

                   (Vinod Gulati)                              (G.K. Dhir)

          Member                                          President

Announced in Open Forum

Dated:11.06.2018

Gurpreet Sharma.