Orissa

Cuttak

CC/334/2023

Jaga Kalia Poly Pack Enterprises - Complainant(s)

Versus

Shiva Poymers Pvt Ltd,Proprietor Amit Gupta - Opp.Party(s)

R K Pattanaik & associates

28 Jun 2024

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL COMMISSION,CUTTACK.

                                                            C.C no.334/2023

Jaga Kalia Polypack Enterprises,

Represented through it’s Proprietor Sudhir Das,

S/o: Sukadeb Das,Vill:Junjarpur,

                   P.O:Bhaipur,P.S: Jagatpur,Dist:Cuttack.                              ....Complainant

 

          Vrs.

 

Shiva Polymers Pvt. Ltd.,

Represented through its Proprietor Amit Gupta,

Sl. No.6, Mouza:Khalia,P.O:Charmrail,

Nera Kona, Dist: Howrah, West Bengal-711114.                      ….Opp. Party.

  

Present:         Sri Debasish Nayak,President.

                      Sri Sibananda Mohanty,Member.

 

Date of filing:    11.10.2023

Date of Order:   28.06.2024

 

For the complainant:            Ms. R.K.Pattnaik,Adv. & Associates.

For the O.Ps               :            Mr. P.Shaw,Adv. & Associates.

 

Sri Debasish Nayak,President                                           

Case of the complainant as made out from the complaint petition bereft unnecessary details in short is that in order to earn livelihood and for self-employment, it was thought to establish a factory for manufacturing P.P bags and sacks in the year 2018 at Jagatpur area of Cuttack.  Accordingly, negotiation was made with the O.P in order to purchase raw materials through the O.P.  But, due to defective/damaged raw materials the production of the complainant hampered as there was shortfall in the quality of the product and the customers started filing cases for the same.  The matter was intimated to the O.P by the complainant and it was requested to take back all the defective/damaged raw materials and to refund the payment as made in that aspect.  When no effective step was taken by the O.P, legal notice was issued to him by the complainant on 7.11.2022. The O.P has also replied to the legal notice of the complainant through his solicitor on 1.12.2022.  Having no other way out, the complainant has come up with the case before this Commission seeking refund of the cost of the purchased raw materials from the O.P to the tune of Rs.5,00,000/-, compensation towards his mental agony and harassment to the tune of Rs.5,00,000/-, a sum of Rs.50,000/- towards the cost of his litigation and also another sum of Rs.38,00,000/- towards the damage of the reputation of his farm.  He has further prayed for any other order as deemed to be fit and proper.

          Together with the complaint petition, the complainant has filed copies of several documents in order to prove his case.

2.       The O.P has contested this case and has filed his written version wherein the O.P has alleged contrary to the averments as made by the complainant by submitting therein that the complainant/company had not cleared the previous dues which he was to pay to the O.P for which the O.P had refused to supply goods to the complainant/company and in this aspect several reminders and mails were sent to the complainant.  The O.P also admits to have replied to the legal notice of the complainant.  The O.P has sent reminders to the complainant asking him to collect the remaining of the goods and to pay for the over dues.  The O.P has also filed a consumer case against the complainant before the Court of Rajarhat,West Bengal for recovery of dues to the tune of Rs.36,34,918/- from the complainant vide Consumer Suit number 26 of 2023 which is sub-judice.  Accordingly, it is prayed to dismiss the complaint petition with exemplary cost as filed before this Commission.

          Together with the written version, the O.P has filed copies of documents alongwith his written version and citation in the case of Rohit Choudhury and Another Vrs. M/s. Vipul Ltd. reported in Live Law (SC) 754: 2023 INSC 807.

3.       Keeping in mind the averments as made in the complaint petition and the contents of the written version of the O.P, this Commission thinks it proper to settle the following issues in order to arrive at a definite conclusion here in this case.

i.          Whether the case of the complainant is maintainable?

ii.         Whether there was any deficiency in service on the part of the O.P ?

iii.        Whether the complainant is entitled to the reliefs as claimed by him?

Issue no.i.

Out of the three issues, issue no.i  being the pertinent issue is taken up first for consideration here in this case.

After perusing the complaint petition, written version, written notes of submissions as filed from both the sides as well as the copies of documents available in the case record, it is noticed that the complainant in order to establish a factory for manufacturing P.P bags and sacks in the year 2018 at Jagatpur area of Cuttack had negotiated with the O.P in order to purchase raw materials through the O.P.  Due to defective/damaged raw materials the production of the complainant hampered as there was shortfall in the quality of the product and the customers started filing cases for the same.  The matter was intimated to the O.P by the complainant and it was requested to take back the defective/damaged raw materials and to refund the payment as made in that aspect. The O.P has vehemently objected to the same by submitting therein that the complainant/company had not cleared the previous dues those which he was liable to pay to the O.P for which the O.P had refused to supply further goods to the complainant/company and in this aspect several reminders and mails have been sent to the complainant by the O.P.  The complainant has not filed any scrap of document in order to apprise this Commission that he has cleared all the previous dues of the O.P.   The O.P has filed a decision of the Hon’ble Apex Court reported in Civil Appeal No.5858 of 2015 in the case of Rohit Choudhury and Another Vrs. M/s. Vipul Ltd. reported in LIveLaw (SC) 754: 2023 INSC 807 decided on 6.9.2023 wherein it is held that “A person buying goods either for resale or for use in large-scale profit-making activity, will not be a ‘consumer’ entitled to protection of the Act- If the dominant purpose of purchasing the goods or services is for a profit motive and the said fact is evident from the record, such purchaser would not fall under the ambit of ‘consumer’ as defined under Section 2(1)(d) of the Act.

          In view of the above discussions and especially since when the O.P has already filed a consumer complaint against the present complaint alleging that he is to get payment from the complainant of this case; this case as filed by the complainant appears to be only an afterthought process in order to counter the claim of the O.P as made before the Learned Commercial Court,Rajarhat,West Bengal for Rs.36,34,918/- which is still sub-judice and also taking into account the decision of the Hon’ble Apex Court, the case of the complainant as filed cannot be said to be maintainable before this Commission..  Accordingly, this issue is answered against the complainant.

Issue No.ii.

          When the case of the complainant is not maintainable before this Commission, the allegation as made by the complainant regarding deficiency of service on the part of the O.P do not require to be discussed.  Accordingly, this issue is answered.

Issue No.iii.

          When the complainant is not a consumer, he is not entitled to any of the reliefs as made by him.  Hence it is so ordered;

 

                                                          ORDER

The case is dismissed on contest against the O.P and as regards to the facts and circumstances of the case without any cost.

Order pronounced in the open court on the 28^th day of June,2024 under the seal and signature of this Commission.                     

                                                                                 

                                                                                        Sri Debasish Nayak

                                                                                              President

                                                                                                   

 

                                                                                  Sri Sibananda Mohanty

                                                                                                             Member