Karnataka

Belgaum

CC/157/2015

Gujarat Ambuja Exports Ltd, A company registered under Indian Companies Act, - Complainant(s)

Versus

M/s. Techno Trade Links, R/by Mr. Ashok Koli. - Opp.Party(s)

S.R.Ambli

08 Dec 2016

ORDER

                

ADDITIONAL  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BELAGAVI

C.C.No.157/2015

                     Date of filing: 12/03/2015

                                                                  Date of disposal:08/12/2016

 

P R E S E N T :-

 

	(1)	Shri. A.G.Maldar, B.Com,LL.B. (Spl.) President.
	(2)	Smt.J.S. Kajagar, B.Sc. LLB. (Spl.)  Lady Member.

 

 

COMPLAINANT   -

Gujarat Ambuja Exports Ltd., A Company Registered under Indian Companies Act, having its Registered Office at “Ambuja Tower” Opp.Mem Nagar Fire Station, Navjeevan,  Ahmedabad and having an Industry at Madli Cross,  Tq:  Shiggaon, Rep.by Chief Executivee Officer, Basu Tebriwala, Age: 55 Years, R/o: Keshwapur, Hubli.                                (Rep. Sri. S.R. Ambli, Adv.)

 

- V/S -

 

OPPOSITE PARTY  -

M/s. Techno Trade Links, Rep. by Mr. Ashok Koli, 214, Near Parvati Slode Blastings, Udyamnagar, Belgaum.                    (Rep. by Sri. A.C. Desai, Adv.)

JUDGEMENT

 

By  Sri.A.G. Maldar, President.

 

 

This is a Complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986 (herein after referred to as Act) against the Opposite Party (in short the “Op”) for directing him to pay Rs.1,42,500/- with interest @18% p.a. from the date of payment till complete realization alongwith cost of the proceedings etc.,

 

2.      The facts of the complainant’s case in brief as fallow;

 

          It is contended that, the complainant is a company in corporate under the Indian Companies Act and the Op is manufacturer and trader and deals with industrial burners and carries on business. The complainant has placed an order for Sulfur Burners alongwith the drawings of the Burners to the OP. The Purchase Order for the First Burner was placed on 24.01.2012 for Rs.2,40,000/-  and Second Order placed on 26.03.2012 for Rs.2,67,900/-. The complainant had to pay Rs.30% advance amount and 60% against Performa invoice and the balance amount was to be paid after successful erection and commission of the Burners and the delivery shall be made within 45 days from the date of purchase order.

 

          The case of the complainant that, the company has paid Rs.72,000/- for the first purchaser order through cheque bearing No.139103 dtd:28.01.2012 drawn on Bank of India, Ahmedabad and also paid Rs.70,500/- for the second purchase order through cheque bearing No.143026, dtd:29.03.2012 drawn on Bank of India Ahmedabad and the OP was to supply the Burners as per the agreed terms.

 

          It is further contended that, as per the agreement, the complainant has paid 30% of payment to the OP, but OP has failed to supply the Two Burners till today. The complainant has requested him to supply the said Burners immediately, but the OP went on postponing the supply on the ground that, he was facing the workers problem and informed the complainant that, he would repay the advance amount within 15 days. But, the OP neither supplied the burners nor repaid the amount. Hence, there is deficiency of service on the part of OP for not supplied the as per terms and conditions of agreement. Hence, the complainant had issued legal notice on 16.04.2013 to Op and called upon the OP to repay the amount with interest, and Op has given reply through his Council on 14.05.2013. Hence, complainant has constrained to file this complaint.  

 

  3.    After receipt of said notice to the Opponent, the Op has appeared through his Counsel and resisted the claim of the complainant. The contents of para No.1 to 10 are all denied. The Op contended that, complaint is not a customer as defined under the C.P. Act and opponent further stated that, the complainant is not competent person to file this complaint. As such the complaint filed by the complainant U/s 12 of the C.P. Act is not maintainable and the same deserves to be dismissed as not maintainable in law.

 

          It is further OP contended that, the supply of Burners by the OP to complainant is Commercial Transaction and is only breach of transaction then the remedy of the complainant lies with Civil courts and the OP has not committed any breach of contract or agreement and the complainant has filed false complaint making reckless averments to blackmail the OP and extract money. The OP further stated that, the allegation of the complainant that, the OP has not supplied burners nor paid the advance amount without any justification and hence there is no deficiency of service and breach of terms of agreement are committed. As such question of paying claim of Rs.1,42,500/- with interest doesn’t arise. 

 

          In view of the various contentions raised supra and as there being no cause of action to file the complaint as well as there being no deficiency of service, the complaint is not at all entitled to claim any of the reliefs as claimed in the complaint. Hence, for these above and among other grounds to be urged, it is humbly prayed that, the complaint against the Op kindly be dismissed with costs.

 

 

4.      Both the parties have filed their affidavits in support of their case, the documents produced on behalf of the complainant for shake of our convenience we have marked as Ex.P-1 to Ex.P-7. On behalf of Opponent has not filed any documents. The Adv. for Complainant has filed his Written Argument and heard the argument of both sides.

 

5.      Now on the basis of these facts, the following points that would arise for our consideration is:

 

 

1. Whether the complainant is a consumer within the meaning of the provision of the C.P Act 1986, so as to                  maintain the complaint against the OP for alleged                  deficiency in service?

 

2.  What order?

 

 

 

 

 

6.      Our findings to the above points are as under:

 

 

1. In the negative.

 

2. As per the final order for the following:

 

R E A S O N S :-

 

7.      Point No.1 :  We have perused the pleadings of the parties and the evidence and documents placed on record and the arguments advanced. The specific contention and disputed fact that, the complainant is a company and Op is a manufacturer and trader and deals with industrial burners and carries on business and the complainant has placed an order for Sulfur Burners alongwith the drawings of the Burners to the OP which has been already marked as Ex.P-2 and the case of the complainant is that, the company place an order for purchasing Burner of Op company.

 

Now, after going through pleadings of the both parties. In order to maintain a complaint under the provisions of the C.P Act, 1986, the complainant must be a ‘consumer’ and the OP must be a ‘service providers’ as defined under the provisions of the C.P Act, 1986, so as to maintain a complaint against the OP for the alleged deficiency in service, for that proposition of law we would like to refer a decision of the Hon’ble National Commission in the decision reported in 2012 (2) CPR 72 (NC) has held that, only a ‘consumer’ can maintain a ‘consumer complaint’ under the provisions of the C.P Act against the service providers.  Further we would like to rely on a another decision of the Hon’ble National Commission reported in IV (2011) CPJ 175 (NC), it has held by the Hon’ble National Commission that when the averments made in the complaint does not disclose any relationship of ‘consumer’ and provider of the service between the parties, complaint is not maintainable, same is liable to be dismissed.   In the instant case also that the averments made in the complaint does not disclose any relationship of ‘consumer’ and provider of the service between the parties, hence this complaint is not maintainable, same is liable to be dismissed and any dispute arising between them would not be a consumer dispute.   Further we would like to rely on a another decision of the Hon’ble National Commission reported in I 2014 CPR 567 (NC), it has been held that a complaint can be dismissed on sole ground that, the complaint does not fall within a definition of ‘consumer’ he is not entitled to maintain complaint against the OP before Consumer Forum.  Hence in the instant case also complaint does not fall within the meaning of ‘consumer’. Therefore the complainant is not a consumer.

 

Therefore, complainant is not a consumer and OP is not a service provider under the purview of U/s 2(1) (d) of C.P. Act as alleged by the complainant, for that proposition of law, also we would like to relied a decision reported in I (2011) CPJ I (SC), Wherein Hon’ble Supreme Court as hold that, who purchase the goods or hires or avails the service for commercial purpose is not a Consumer and he is not entitled to maintain complaint against the OP alleged deficiency. But, in the instant case looking to the allegation they are not come under the purview of C.P. Act 1986 and alleged allegation does not disclose the deficiency in service on the part of the OP and the said transaction revels that, it is Commercial Transaction. Hence, in our consider view, the complainant is not a Consumer and there is no any deficiency of service on the part of the OP as alleged by the complainant.

 

We have gone through pleadings of the complaint. It is evident that, the Complainant being a Company cannot be a Consumer as per the definition there is no privity of contract between the complainant and in respect of any services or agreeing to pay certain amount towards services rendered and it is admitted fact that, the complainant is a company which is in corporate under the companies Act and further admitted fact that, OP is a manufacturer and trader deals with industrial burners and carriers on business. When, such is the factual aspect then, how the complainant become a Consumer when there is no any pleading in respect of livelihood or self-employment. Therefore, the complainant has failed to establish that, complainant is Consumer and OP is service provider. Hence, the Complaint is not maintainable accordingly. Hence, this Hon’ble Court has no jurisdiction to decide the present complaint. Hence, we answer point No. 1 is Negative.

         

8.      Point No: 2:- With these findings on Point No.1, the Point No.2 does not survive. Hence, we proceed to pass the following;

 

:: O R D E R ::

 

         

For the reason discuss above, the complaint filed by the complainant U/s 12 of the C.P. Act – 1986 is here by dismissed.

 

 

 

However, the Complainant is at liberty to approach the proper Authority to seek reliefs.

 

 

 

No order as to costs. 

 

(This order is dictated to the Stenographer, transcript edited, corrected and then pronounced in the open forum on this 08^th day of December, 2016).

 

 

Sri. A.G.Maldar,     President.

Smt. J.S. Kajagar,    Lady Member.