State Consumer Disputes Redressal Commission
M/S Cheap Silk Store Pvt. Ltd. vs Komal Metal Pvt. Ltd. on 11 December, 2015
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 504 of 2015
Date of institution: 12.5.2015
Date of Decision: 11.12.2015
M/s Cheap Silk Store Pvt. Ltd., having its Registered Office at Mall Road,
Ludhiana, through its Director Sh. Inder Paul son of Sh. Narinder Lal.
Appellant/Complainant
Versus
M/s Komal Metal Pvt. Ltd. having its registered office at E-582, Phase-VII,
Focal Point, Ludhiana, through its Managing Director Sh. Amarjit Singh
IInd Address:-
13-XXI-6706, Daba Road, Shimlapuri, Ludhiana.
Respondent/Op
First Appeal against the order dated 27.2.2015
passed by the District Consumer Disputes
Redressal Forum, Ludhiana.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Jasbir Singh Gill, Member
Present:-
For the appellant : Sh. Sanjay Tangri, Advocate
For the respondent : Sh. Rakesh Bhatia, Advocate
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
The appellant/complainant(hereinafter referred as complainant) has filed the present appeal against the order dated First Appeal No. 504 of 2015 2 27.2.2015 passed by the District Consumer Disputes Redressal Forum, Ludhiana(hereinafter referred as the District Forum) in consumer complaint No. 641 dated 29.8.2013 vide which the complaint filed by complainant(hereinafter referred as complainant) was disposed off with the observation that in view of the pendency of proceedings before the Hon'ble Punjab & Haryana High Court at Chandigarh between the parties, the complaint was dismissed with the liberty to the complainant to approach the competent authority to seek the redressal of their grievance.
2. Complaint was filed by the complainant under Section 12 of the Consumer Protection Act, 1986 (in short 'the Act') against the respondent/Op(hereinafter referred as Op) on the averments that the complainant is Company and the complaint was being filed through one of his Director Mr. Inder Paul as Board of Directors had passed a resolution dated 23.8.2013 authorising him to file this complaint. The Company was created by the Narinder Lal and Gian Chand on 1.6.2009 to earn their livelihood by means of self employment. Complainant applied for extension of the loan for which PSPCL agreed to arrange and install a transformer for the same. They offered to supply a transformer of 215 KVA alongwith BT55 transformer oil 300 Litres to be installed in their own premises at their own cost. Complainant paid Rs. 50,000/- as advance vide cheque No. 025918 dated 16.11.2011 drawn on Bank of India, Bharat Nagar Chowk Branch, Ludhiana. Rs. 50,000/- more was paid to Op on 29.11.2011 vide cheque No. 025974 of the same bank but Ops failed to deliver the transformer. He paid another sum of Rs. 50,000/- on First Appeal No. 504 of 2015 3 19.1.2011 vide cheque No. 026235 drawn on the same bank referred above. Op after having received Rs. 1,50,000/- had failed to deliver the transformer. When Op was again asked to supply the transformer, he demanded Rs. 70,000/- more, which was paid vide cheque No. 117354 dated 16.4.2012 drawn on Axis Bank Ltd., Mall Road Branch, Ludhiana. Since the complainant was suffering for non- supply and installation of the transformer, respondent delivered one old repaired transformer vide challan No. 57 dated 17.7.2012. On the challan, it was specifically mentioned that the same was not for sale. The complainant again approached Op in the month of December, 2012 and Op undertook to deliver the new transformer for a sum of Rs. 2,20,000/- but Op failed to deliver the said transformer and supplied an old and repaired transformer vide challan No. 204 and took back the previous one. On 16.2.2013 on account of installation of indoor unit, the CTPT unit blasted and electricity meter burnt on account of blast, for which the complainant had paid Rs. 34,080/-. Despite all these efforts, Op failed to supply the transformer. On 4.8.2012, Op supplied an invoice bearing No. 000025 dated 30.11.2011 of a sum of Rs. 3,37,600/-. The complainant again asked Op to deliver the transformer, which was ordered and to remove the old transformer but to no effect. Complainant had to hire transformer from Mr. Gopal Bhatia from 20.2.2013 to 14.3.2013 for which he had to pay Rs. 9,500/- as hire charges and ultimately, the complainant had to purchase a transformer from Nucon Power Controls Pvt. Ltd., Focal Point, Ludhiana vide invoice No. 374 dated 13.3.2013 for a sum of Rs. 2,85,979/-. The act on the part of Op is a case of unfair First Appeal No. 504 of 2015 4 trade practice and deficiency in service. Hence, the complaint with a direction to Op to return Rs. 2,20,000/-, pay Rs. 25,000/- paid to the mechanic, who inspected the spot, Rs. 34,080/- for installmation of the new meter, Rs. 20,000/- as generator diesel charges, Rs. 9,500/- as hire amount of transformer, Rs. 4,500/- as crane charges; in all Rs. 3,13,080/-. Op be also directed to pay Rs. 2,00,000/- on account of unfair trade practice and deficiency in service. The complainant was entitled compensation of Rs. 1,00,000/- as cost of the complaint alongwith interest @ 24% p.a.
3. The complaint was contested by Op, who filed written version taking preliminary objections that the complaint was not maintainable as Company Winding Up petition is pending against the complainant having failed to pay Rs. 1,67,600/- to Op, being balance amount of sale of transformer vide bill No. 25 dated 30.11.2011 before the Hon'ble Punjab & Haryana High Court at Chandigarh vide Company Petition No. 15 of 2013. Further legal notice was addressed to M/s Komal Metal Works which is a firm whereas the complaint was filed against Komal Metal Pvt. Ltd.. In the legal notice dated 16.3.2013, allegations of fraud, cheating etc. were mentioned and to adjudicate those allegations, this Forum had no jurisdiction, therefore, the matter was required to be relegated to the Civil Court; the complaint was false, frivolous and vexatious, therefore, liable to be dismissed under Section 26 of the Act. The transformer having capacity of 215 KVA 11/0.433 BT55 oil 300 Litres. A bill No. 000025 dated 30.11.2011 was issued for a total sale consideration of Rs. 3,37,600/- and the complainant Company had failed to pay the First Appeal No. 504 of 2015 5 balance amount of Rs. 1,67,600/- after calculating a sum of Rs. 2,20,000/- already paid by the complainant. The Company is commercial insolvent, therefore, the consumer complaint on behalf of the Company is not maintainable. On merits, the averments taken in the legal objections were reiterated. It was again reiterated that transformer with capacity of 215 KVA alongwith BT55 transformer oil 300 Litres was sold to the complainant Company for a sum of Rs. 3,37,600/- vide bill No. 000025 dated 30.11.2011 and a sum of Rs. 1,67,600/- was still outstanding. Complaint filed by the complainant was without merit and it be dismissed.
4. The parties were allowed by the learned District Forum to lead their evidence.
5. In support of his allegations, the complainant had tendered into evidence affidavit of Inder Paul Ex. C-A, Distinctive Designer Wear Ex. C-1, memorandum of articles of Association Ex. C-2, invoice Ex. C-3, bills Exs. C-4 & 5, receipt Ex. C-6, invoice Ex. C-7, legal notice Ex. C-8, ledger account statement Ex. C-9, bank statement Exs. C-10 to 13, Distinctive Designer Wear Ex. C-14, payment of rent of transformer Ex. C-15. On the other hand, Op had tendered into evidence affidavit of Amarjit Singh, Director Ex. R-A, resolution Ex. R-1, company petition copy Ex. R-2, written statement of respondent Ex. R-3, invoice Ex. R-4, statutory notice Ex. R-5, postal receipt Ex. R-6.
6. After going through the allegations in the complaint, written version filed by the OP, evidence and documents brought on the record, the learned District Forum keeping into consideration that First Appeal No. 504 of 2015 6 there are allegations of fraud and fabrication, find it appropriate to refer the matter before an appropriate Forum.
7. Aggrieved with the order passed by the learned District Forum, the appellant/complainant has filed the present appeal.
8. We have heard the learned counsel for the parties.
9. Although the appeal has been filed by the complainant Company that order so passed by the District Forum is incorrect because relief under Section 3 of the CP Act is an additional remedy. Winding up proceedings under the Company Act are different proceedings whereas the proceedings before the CP Act is to determine the deficiency in service or unfair trade practice on the part of Op, therefore, the order passed by the District Forum is incorrect and liable to be set-aside.
10. However, the counsel for Op before going to the merits of the case stated that the complainant is not a consumer as defined under Section 2(1)(d)(i) of the Act. It has been stated that as is clear from title of the complaint and averments in the complaint, the complainant is a Company. The complaint was filed through its one of the Director Mr. Inder Paul. Counsel for the Op has referred to the judgment of the Hon'ble Supreme Court 2012(2) RCR (Civil) 1011 "GMMCO Limited versus Ecovinal International Private Limited". In that case, 250 KVA Cat Diesel Generator Set was purchased by the complainant Company, which was being used in the factory and keeping in view the pleadings in the complaint, it was observed that the engine was purchased for commercial purposes, therefore, the dispute with regard to the generator set does not come within the First Appeal No. 504 of 2015 7 domain of the Consumer Fora. Reliance was also placed upon the judgment "Laxmi Engineering Works v. P.S.G. Industrial Institute", (1995) 3 SCC 583 that engine was purchased for commercial purposes of the Company, therefore, it cannot be to earn livelihood or self employment of any individual.
11. It has been argued by the counsel for the appellant/complainant that this plea was not taken by Op before the District Forum. No doubt that specific plea with regard to the jurisdiction has not been taken but it has been averred in the written version/reply that the transformer was purchased for commercial purpose to run the business of the Company. Even if no specific plea was taken, it is the duty of the Forum/Commission to see whether the complainant comes within the definition of the consumer and in case he is not a consumer then Consumer Fora does not have any right to entertain such type of complaint.
12. The Company is not an individual. It has three Directors as pleaded in the complaint itself. It has not been stated that the generator (transformer) set was purchased for to earn livelihood and self employment of all the three Directors. In fact they were running the company to sell and purchase of cloth and the transformer was required in connection with the business of the Company. To support this point, there is latest judgment of the Hon'ble National Commission I (2015) CPJ 326 (NC) "Oriental Bank of Commerce Vs. Sushil Gulati". In that case, the complainant used the bank transactions for commercial purpose and obtained the cash credit facility for running his business. Complainant nowhere mentioned in First Appeal No. 504 of 2015 8 the complaint that he was carrying on business by means of self employment for earning livelihood, as such, the complainant is not 'consumer' under the CP Act. Counsel for the appellant/complainant was unable to rebut these judgments, therefore, in view of these judgments and keeping in view the pleadings of the complainant in the complaint, the complainant being a Company does not come within the definition of the consumer as defined under Section 2(1)(d)(i) of the Act, therefore, this Forum does not have any jurisdiction to entertain the complaint. Therefore, we are of the opinion that the findings so recorded by the District Forum are correct, although, on a different point to refer the matter before an appropriate Forum. We affirm the findings so recorded by the District Forum and also of the opinion that the complainant being not a consumer, we cannot entertain it, the same is hereby dismissed being not maintainable without prejudice to the rights of the complainant to seek his remedy before any other appropriate Forum.
13. The arguments in this appeal were heard on 9.12.2015 and the order was reserved. Now the order be communicated to the parties as per rules.
14. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran)
Presiding Judicial Member
December 11, 2015. (Jasbir Singh Gill)
as Member
First Appeal No. 504 of 2015 9