Order by:
Sh.Amrinder Singh Sidhu, President
1. This Consumer Complaint has been received by transfer vide order dated 26.11.2021 of Hon’ble President, State Consumer Disputes Redressal Commission, Punjab at Chandigarh under section 48 of CPA Act, vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2021 from District Consumer Commission, Ludhiana to District Consumer Commission, Moga to decide the same in Camp Court at Ludhiana and said order was ordered to be affected from 14th March, 2022.
2. The complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (now section 35 of Consumer Protection Act, 2019) on the allegations that the complainant company got installed a Solar Water Heater Dx 500 Pressurized with auxiliary 100 Ltr from the Opposite Parties vide Invoice No. 15 dated 16.09.2017 for Rs.2,22,390/- and the payment of the said solar system was to be made in installments and accordingly, the complainant issued two cheques bearing No. 057363 and 057365 in favour of the Opposite Parties. At the time of purchase of the above said solar system, the Opposite Parties assured, undertaken and committed to the complainant regarding the satisfactory, quality and best performance of the said solar system and in case of any defect in the solar system occured, the Opposite Parties would refund the entire amount to the complainant. But to the utter shock and surprise of the complainant that the said solar system worked properly only for two days and thereafter, said solar system stopped working and when the complainant made complaints about the matter to the Opposite Parties, then the Opposite Parties started pressing upon the complainant to make the payment. The complainant has always been ready and willing to make the payment of the solar system to the Opposite Parties, but the Opposite Parties are not giving any satisfactory reply regarding the defective performance of the solar system. Due to the defectiveness in the solar system, the complainant has already stopped the payment of the cheques and the complainant is no more interested in continuing with the above said solar system. The complainant made so many requests to the Opposite Parties to return his cheques and to lift back the solar system, but the Opposite Parties did not pay any heed to the request of the complainant and hence, the complainant is suffering harassment, mental tension and as such, there is deficiency in service on the part of the Opposite Parties. Vide instant complaint, the complainant has sought the following reliefs.
a) The Opposite Parties may be directed to lift back the solar system and to return the cheques in question and also to pay Rs.80,000/- as compensation due to mental tension and harassment caused by the complainant and Rs.11,000/- as litigation expenses and also to pay any other relief to which this District Consumer Commission may deem fit be also granted.
3. Opposite Parties appeared through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the complaint filed by the complainant is not maintainable and is liable to be dismissed as the complainant has attempted to misguide and mislead this District Consumer Commission. First of all, the complainant is not covered with the definition of Consumer as defined under the Act. The complainant company is a Limited company and the complainant company does not come within the definition of the complainant and the solar system in question is purchased by the complainant company as depicted in the bill itself. On this lone ground, this District Consumer Commission has no jurisdiction to try and entertain the present complaint. It is however, admitted that Solar system was sold to the complainant, but the payment was not agreed to be made on complete installation because the installation of the said equipment was totally done on the spot and the Opposite Party gone to the spot and after complete installation he got checked the proper working of the said equipment to the satisfaction of the complainant. However, the complainant issued two cheques i.e. one cheque worth Rs.1, lakh and other cheque worth Rs.1,11,000/- total amounting to Rs.2,11,000/- excluding GST and the said GST amount was agreed to be paid by the complainant in cash. After that, the Opposite Parties presented the cheques for its payment, but the cheques in question were dishonoured and returned back unpaid due to the reason ‘payment stopped by the drawer’ and thereafter, the Opposite Parties lodged proceedings under section 138 of Negotiable Instrument Act and the case is pending in the court of JMIC, Ludhiana. In one of the cheque case, bailable warrants and in other cheque case, the non-bailable warrants have already been issued against the complainant, but all these facts have been concealed by the complainant in this complaint. Moreover, the complainant had got done the entire sanitary fitting work from outside and the alleged defect, if any, is in the sanitary fitting and not in the solar system installed by the Opposite Parties and hence, there is no fault or Unfair Trade Practice on the part of the Opposite Parties and the complaint is liable to be dismissed. On merits, the Opposite Parties took up almost the same and similar pleas as taken up by them in the preliminary objections and hence, there is no deficiency in service on the part of the Opposite Parties. Hence, the complaint may be dismissed with costs.
4. In order to prove his case, the complainant has placed on record affidavit of Nitin Dawar alongwith copy of bill dated 16.09.2017, copy of resolution of the complainant company, copy of legal notice. On the other hand, the Opposite Parties has placed on record the affidavit of Raman Thamman, proprietor of M/s.Royal Sales Corporation and hence, we have perused the documents placed by both the parties on record.
5. The case of the complainant is that complainant company M/s.Shri Ganga Das Textile Industries Limited is a limited company duly incorporated under the Indian Companies Act and duly registered with the Registrar of Companies, Chandigarh and Nitin Dawar, CEO is authorsied by the Board of Directors to file the present company. Further contended that the complainant company had purchased and got installed a Solar Water Heater Dx 500 Pressurized with auxiliary 100 Ltr from the Opposite Parties vide Invoice No. 15 dated 16.09.2017 for Rs.2,22,390/- and in this regard, the complainant issued two cheques bearing No. 057363 and 057365 in favour of the Opposite Parties. But since the date of its purchase, the equipment installed by the Opposite Parties is not working properly and is defective one, hence the complainant has made request to the Opposite Parties to lift back the equipment and also return the cheques in question, but to no affect and hence, there is deficiency and Unfair Trade Practice on the part of the Opposite Parties. On the other hand, ld.counsel for the Opposite Parties has repelled the aforesaid contention of the complainant on the ground that first of all, the complainant is not covered with the definition of Consumer as defined under the Act. The complainant company is a Limited company and the complainant company does not come within the definition of the complainant and the solar system in question is purchased by the complainant company as depicted in the bill itself. Moreover, equipment is working properly on the spot and after complete installation the Opposite Parties got checked the proper working of the said equipment to the satisfaction of the complainant. However, the complainant issued two cheques i.e. one cheque worth Rs.1, lakh and other cheque worth Rs.1,11,000/- total amounting to Rs.2,11,000/- excluding GST and the said GST amount was agreed to be paid by the complainant in cash. After that, the Opposite Parties presented the cheques for its payment, but the cheques in question were dishonoured and returned back unpaid due to the reason ‘payment stopped by the drawer’ and thereafter, the Opposite Parties lodged proceedings under section 138 of Negotiable Instrument Act and the case is pending in the court of JMIC, Ludhiana. In one of the cheque case, bailable warrants and in other cheque case, the non-bailable warrants have already been issued against the complainant, but all these facts have been concealed by the complainant in this complaint. Moreover, the complainant had got done the entire sanitary fitting work from outside and the alleged defect, if any, is in the sanitary fitting and not in the solar system installed by the Opposite Parties and hence, there is no fault or Unfair Trade Practice on the part of the Opposite Parties and the complaint is liable to be dismissed.
6. Perusal of the Invoice No.15 dated 16.09.2017 vide which the complainant company has purchased the Solar Water Heater Dx 500 Pressurised with Auxiliary 100 Ltr from the Opposite Parties shows that the equipment has been purchased by the complainant company in the name of Shri Ganga Das Textile Industries Limited, Ludhiana, but the complainant company has nowhere mentioned that said equipment has been used by them for earning the livelihood. On the other hand, the main contention of the Opposite Parties is that it is installed by the Opposite Parties in the premises of complainant company which is a limited company and as per settled law when the equipment is purchased for a commercial/ business by the complainant company, is for a commercial purpose within the meaning of section 2(1)(d) of the Consumer Protection Act, the complainant is not a consumer under the Consumer Protection Act (as amended upto date). As per the Memorandum of Association of complainant company i.e. Shri Gangadas Textile Industries Limited, the main objects to be pursued by the complainant company on its Incorporation are to carry on the business as manufactures, processors, finishers, dyers, exporters, importers, traders, buyers, sellers, design, product sourcing agency for overseas importers/ exports, developers, wholesalers and retail dealers, distributors, principals, representation all kinds of readymade garments, hosiery items and accessories etc. which works exclusively for commercial purposes. Section 7 of the Consumer Protection Act, 2019 provides that (7) "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, but in the instant case, the complainant has nowhere denied that that complaint firm Shri Gangadas Textile Industries Limited, does its business of selling clothes for resale or for any commercial purpose. On this score, the complainant does not come within the ambit of consumer under the Act. Furthermore, with regard to stoppage of payment of the cheques issued by the complainant company to the Opposite Parties to clear their liability against purchase of the equipment in question, the Opposite Parties lodged proceedings under section 138 of Negotiable Instrument Act and the case is pending in the court of JMIC, Ludhiana. In one of the cheque case, bailable warrants and in other cheque case, the non-bailable warrants have already been issued against the complainant, and this averment has nowhere denied by the complainant by filing any cogent evidence on record.
7. In view of the aforesaid facts and circumstances of the case, the instant complaint stands dismissed. All applications pending before this District Consumer Disputes Redressal Commission, if any, stand disposed off accordingly. Keeping in view the peculiar circumstances of the case, the parties are left to bear their own costs. Copies of the order be furnished to the parties free of cost by District Consumer Disputes Redressal Commission, Ludhiana and thereafter, the file be consigned to record room after compliance.
8. Reason for delay in deciding the complaint.
This Consumer Complaint was originally filed at District Consumer Disputes Redressal Forum (Now Commission) at Ludhiana and it keep pending over there until Hon’ble State Consumer Disputes Redressal Commission, Punjab vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2022 has transferred the instant Consumer Complaint alongwith Other Complaints to District Consumer Disputes Redressal Commission, Moga with directions to work on this file onward from 14th March, 2022 and accordingly District Consumer Disputes Redressal Commission, Moga has decided the present complaint today at Camp Court, Ludhiana, as early as possible.
Announced in Open Commission at Camp Court, Ludhiana.
