State Consumer Disputes Redressal Commission
Raghav Buildcon Pvt. Ltd. vs Schindler India Pvt. Ltd. on 27 September, 2012
IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b)of the Consumer Protection Act, 1986 ) Date of Decision: 27.09.2012 Case No. C-264/11 M/S RAGHAV BUILDCON PVT. LTD. - COMPLAINANT Khasra No. 759, 760, 761 & 762, Main Road, chattarpur, New Delhi. Through its authorized signatory Mr. N.K. Bhardwaj Versus SCHINDLER INDIA PVT. LTD. - RESPONDENT (Kind Attn. Mr. Amjad Sayyed), 6/7, B.K. Roy Court, 4th Floor, Peerless Building, Asaf Ali Road, New Delhi 110002. CORAM : SALMA NOOR - Presiding Member V.K. GUPTA - Member (Judicial) 1. Whether reporters of local newspapers be allowed to see the judgment? 2. To be referred to the Reporter or not? V.K. GUPTA (ORAL) ORDER
1. This is a complaint under Section 17 of the Consumer Protection Act, 1986.
2. In the nutshell, facts are that in pursuance of letter dated 25.6.2009 of OP, an agreement dated 25.6.2009 was executed between the complainant and the OP and in pursuance thereof, the complainant placed order for the installation and commissioning of the 2 nos of elevators/lift. The installation charges of both the elevators/lift were agreed for Rs. 7 Lac at the premises bearing Khasra No. 759 to 762, Main Road, Chattarpur, New Delhi. The order for the purchased of said elevators/lift was also placed to the OP for consideration of Rs.15,81,340/-. For the payment of the installation, an amount of Rs. 2,80,000/- was paid through cheque on 6.8.2009 and Rs. 3,36,000/- through cheque on24.6.2010 to the OP. The complainant has paid according to the contract terms almost 90% toward the installation and commissioning of the two elevators/lift and the balance 10% was to be payable after the completion of the installation of the said elevators/lift. The terms and conditions of the said agreement are mentioned in Para 8 of the complaint. The complainant has to pay 10% of the installation charges, which comes to Rs. 70,000/- after completion of the installation and commission. The installation and commissioning of the said elevators/lift have not been completed but demanded the balance amount of 10% being Rs. 70,000/-. Obviously, there is a deficiency in the work. The complainant claims a direction to the OP for installation and commissioning of the 2 elevators/lifts as per agreement dated 25.6.09 and also to refund Rs. 22,81,340/- along with interest @ 18% p.a., and Rs. 75 Lac for loss and damages.
3. The OP has filed the written statement and denied the allegations. It is admitted that the agreement dated 25.6.09 was executed. The total consideration amount of Rs. 7 Lac was to be paid as the OP was engaged by the complainant in installation, testing, commissioning and maintenance of elevators/lift. The machinery was brought by the complainant from SU ZHOU SCHINDLER ELEVATOR CO. LTD ( China) and the cost of the two elevators/lifts were directly paid to the SU ZHOU SCHINDLER ELEVATOR CO. LTD ( China). The complainant had a separate agreement for buying and bringing/importing the purchase of the 2 lifts from SU ZHOU SCHINDLER ELEVATOR CO. LTD ( China). In April 2010, the OP started work on the site and in July 2010, the complainant took back the possession of the site for flooring of the pits/shaft and the same was provided to the OP after 5 months. In November, 2010, OP completed his work and a completion certificate was issued by the OP to the complainant but the utter surprise it was not received by the complainant with a malafide intention. The OP requested the complainant to take the handling over of the elevators but the complainant on one pretext or the other had not complied the same. OP demanded Rs. 3,85,000/- on 4.7.2011 as per terms and conditions of the agreement but it has not been paid. OP was responsible for installation, testing ad maintenance of the same. It is agreed that as per agreement dated 25.6.09, the complainant was to pay Rs. 7 Lac being the cost of installation and commissioning of the two elevators. OP has nothing to do with importing of the said lifts from China. It is admitted in Para 6 that the complainant paid Rs. 2,80,000/- and Rs. 3,36,000/- on 6.8.09 and 24.6.2010.
Despite the completion of the work, 10%amount has not been paid by the complainant.
4. The complainant has also filed rejoinder narrating the same averment as that of the complaint and denied the averment made by the OP in the written statement.
5. Both the parties have filed the evidence in their support.
6. We have heard Ld. Counsels for the parties and perused the material on record.
7. At the outset, Ld. Counsel for the OP has raised preliminary objection that the entire transaction as complainant set out in the complaint is a commercial transaction and the complainant cannot be said to a consumer with the meaning of Consumer Protection Act 1986. On the other hand, Ld. Counsel for the complainant argued that the complainant is a consumer.
8. The material on record goes to show that the complainant as well as the OP are the Private Ltd. Companies. Both the companies are carrying on its business, may be having the separate office at different places. There is no averment in the complaint nor at any stage of the proceedings it has been pleaded by the complainant that the transaction is for earning the livelihood. It is a settled position of the Law if the person is carrying on the business for the earning of livelihood, it can be termed as Consumer within the Consumer Protection Act 1986. This is not a case of the complainant nor any evidence has been filed that the transaction of installation and commissioning of the two elevators in the premises bearing Khasra No. 759 to 762, Main Road, Chattarpur, New Delhi is for the livelihood. Under these circumstances, the complainant cannot be said to a Consumer.
9. On merits too, we do not find that the complainant has established its case with regard to the deficiency of service. It is an admitted case of both the parties that an agreement was executed between the two Private Ltd. Companies who are the complainant and the OP in this case on 25.6.09, in pursuance of which, the OP was required to install and commissioning two lifts in the premises as herein above mentioned for the total consideration of Rs. 7 Lac. It is admitted case of both the parties that the complainant has paid 90% of this amount and the remaining 10% is to be paid at the time of the completion of the work for installation and the commissioning of the two lifts. The commercial terms and conditions have been filed which is paper No. 23. The condition No. 1 of the commercial terms and condition goes to show that 10% payment shall be made on installation and commissioning of the two lifts. It would be relevant to mention here that the terms and conditions between both the parties are in respect of a commercial Transaction. The complainant as well the OP has filed various documents. Paper No. 30 which is a letter of the OP to the complainant indicates that difficulty that the place requires replacing the damaged drives of both the elevators and reconditioning of both the machines. The documents submitted by the OP further go to show that the work of installation and completion has been made as per terms and conditions of the agreement but it is not in operation on account of some problem in the original machines, which have been imported by the complainant from China. It is not worthy to mention that the complainant has paid the price of the machines i.e. the elevators directly to the company from China wherefrom it is imported. Therefore, in no way, the OP is responsible in any manner and there is no deficiency in service.
10. Under these circumstances, complaint is dismissed.
11. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to Record Room.
(SALMA NOOR) PRESIDING MEMBER (V.K. GUPTA) MEMBER(JUDICIAL) rn