State Consumer Disputes Redressal Commission
Pavan Nutra Ek Bhagidari Pethi vs Aidmak Farma Mashin Tek on 21 August, 2023
Details DD MM YY
Date of 21 08 2023
Judgment
Date of filing 13 12 2019
Duration 08 08 03
IN THE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
STATE OF GUJARAT
COURT NO.2
Complaint No. 291 of 19
Pavan Nyutra Partnership Firm
Add: 98,109, 109(A) (b) (C),
Sanskar Industrial Estate,
Near Ganesh Industrial Estate,
Amroli, Sayan Road,
Delad-394130,
Surat.
On Behalf of partners and
Power of attorney holders of partners
Jayeshkumar Suryakant Soni
Aged: 42, Occ: Business,
Add: 1-Vandana Raw-House,
L.P. Savani Road,
Pal-Surat. ...Complainant
V/s
1. Admac Farma Machine Tec.,
Add: Akshar Industrial Park,
Shed No.48, Besides Vinzol Circle,
G.I.D.C.- Vatva,
Ahmedabad-382445
2. Pooja Jayeshbhai Khambhatiya
CEO of Admac Farma Machine Tec.
Aged 32, Occ: Business
Add: A-1401, Orchid Pride,
Opp. Binori Soliter, Opp. Aarohi Homes,
Near Gala Gymkhana Road,
Bopal Ahmedabad-380058.
3. Ankit Jayeshbhai Khambhatiya
Owners of Admac Farma Machine Tec.
Aged: 27, Occ: Business,
Add: A-1401, Orchid Pride,
Opp. Binori Soliter, Opp. Aarohi Homes,
Akshay CC/291/19 Page 1 of 7
Near Gala Gymkhana Road,
Bopal Ahmedabad-380058.
4. Poonam Jayeshbhai Khambhatiya
Manager of Admac Farma Machine Tec.
Aged: 30, Occ: Business,
Add: A-1401, Orchid Pride,
Opp. Binori Soliter, Opp. Aarohi Homes,
Near Gala Gymkhana Road,
Bopal Ahmedabad-380058. ...opponents
Coram: Hon'ble Mr. M.J. Mehta, President (Acting)
Hon'ble Dr. J. G. Mecwan, Member
Appearance: Harshit Shah, Ld. Advocate for Appellant Rohit Patel, Ld. Advocate for Respondent ORDER By Hon'ble Dr. J. G. Mecwan, Member Judgment
1. The complainant has filed a complaint against the opponents alleging deficiency in service and unfair trade practice. The brief facts of the case:
2. The complainant has ordered five machine worth Rs.93,49,612/- from the opponent. On 11.01.2018, the complainant has paid Rs.10,00,000/- through RTGS to the opponent. Thereafter on 25.01.2018, the complainant has paid Rs.5,00,000/- and on 29.03.2018, paid the remaining amount Rs.78,49,612 through RTGS to the opponent. The machines were delivered between 16.03.2018 to 29.03.2018. During the trial, the item no.2 "aluminum blisted (alu alu) double track machine was not started as there was some fault. The complainant has time and again informed the opponent through mail, phone call and whatsapp to repair the machine but it was not repaired. The complainant has also filed complaint against the opponents under IPC Section 406 and 420. The complainant has also sent the notice to the opponents through advocate and thereafter the Akshay CC/291/19 Page 2 of 7 complainant has filed this consumer complaint before this Commission.
3. Today the matter came up for hearing. Ld. Adv. Mr. Harshit Shah for the complainant and Ld. Adv. Mr. Rohit Patel for the opponent is remained present.
Argument of the complainant
4. Ld. Adv. for the complainant has argued that the opponents have supplied the defective machine to the complainant from the start and has neither repaired the machine nor replaced the machine. Ld. Adv. has argued that the complainant has requested the opponents to repair the machine but the machine was not repaired. Ld. Adv. has submitted that the opponents have done unfair trade practice and deficiency in service by providing the defective machine. Further Ld. Adv. has argued that the complainant is entitled for the prayed which has been prayed in the complaint.
Argument of the opponent
5. Ld. Adv. for the opponent has argued that the complainant does not come within the purview of the consumer as the complainant is a partnership firm and doing the business for the purpose of benefit. Ld. Adv. has submitted that the Hon'ble State Commission does not have a jurisdiction to decide the present matter as the complainant is not a consumer under Consumer Protection Act. Ld. Adv. has further submitted that the present complaint is not maintainable and is required to be dismissed. In Support of his arguments, Ld. Adv. Rohit Patel has submitted following judgments:
(i) SCDRC, Gujarat; Appeal No.631/2010; Gujarat Rajya Nanakiya Nigam V/s Ms. Arihant Industries
(ii) III (2016) CPJ (NC); ICICI Bank Ltd & Ors. V/s J.C.M. Poultry Farm Akshay CC/291/19 Page 3 of 7
(iii) II (2015) CPJ 585 (NC); Union Bank of India V/s Ramayan Yadav & Anr.
(iv) SCDRC, Gujarat; Complaint No.102/2013; Naynaben Bharatbhai Goti V/s Kotak Mahindra Old Mutual Life and Ors.
(v) SCDRC, Gujarat; Complaint No.113/2016; Maheshkumar Natvarlal Shah V/s Star Health and Allied Insurance Co. Ltd.
(vi) Supreme Court; Civil Application No.11397/2016; Shrikant G. Mantri V/s Punjab National Bank.
Merits of the case
6. In this matter, Ld. Adv. for the opponent Mr. Patel has raisd preliminary objection that complainant is not consumer as per Consumer Protection Act as it is partnership firm and doing commercial activity. Ld. Adv. Mr. Patel has submitted to decide this preliminary issue first before entering into merits to adjudicate this matter.
7. We have gone through the record of this case, as per record complainant is a partnership firm.
Hon'ble National Commission in Anil Dutt V/s Business Park Town Planners Ltd. (CC No. 159 of 2012) held as under:
"The Opposite party contested the complaint. It has called into question the jurisdiction of this Commission. Consequently, we are bound to decide this point, first of all, as per law laid down by the Hon'ble Apex Court in the case of "K.Sagar Vs. Managing Director, Kiran Chit Fund, Mushridabad Vs. A. Bal. Reddy, (2008) 7 Supreme Court Cases, 166."
Considering observation of Hon'ble NCDRC, we are of the view that the issue relating to jurisdiction has to be decided by State Commission first.
8. We have gone through the record of this matter. Coming to the question whether the complainant is consumer for the Akshay CC/291/19 Page 4 of 7 purpose of the Act? The term "consumer" has been defined in Section 2 (1) (d) of the Act which reads as under:
(d) "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
(ii) hires or avails of any services 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 beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;
Explanation.-- For the purposes of this clause, "commercial purpose"
does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;
On reading of the above, it is very clear that a consumer means a person who hired or avails of service for consideration whether paid or promised or party paid or partly promised but does not include a person who avails such service for any commercial purpose.
9. In the instant case, complainant is a partnership firm and such partnership firm or its partners cannot be termed as consumers as envisaged under Section 2 (1) (d) (ii) of the act. Further on perusal of complaint, it appears that relationship of the complaint and opponent is business relationship and hence it is for a commercial purpose.
Akshay CC/291/19 Page 5 of 710. Hon'ble National Commission in III (2016) CPJ 562 (NC);
ICICI Bank Ltd & Ors. V/s J.C.M. Poultry Farm held as under:
"9. We have considered the rival contentions and perused the record. On perusal contentions and perused the record. On perusal of the complaint, we find that in para 1, the complainant has categorically alleged that it is a partnership firm and it approached the opposite party for loan as the firm was interested in developing the poultry farm. From the above, it is clear that the complainant firm had approached the appellant/opposite party to raise a loan for establishing the poultry farm business. There is no allegation in the complaint that the loan was raised with the intention of exclusively earning the livelihood by way of self-employment. Nor any evidence in this regard has been adduced by the respondent/complainant. Thus, it is clear that the services of the appellant Bank were availed for the commercial purpose."
Looking to the above, in the instant case, when complainant is a partnership firm and there is not any evidence in this regard has been submitted by complainant that purpose of earning is for livelihood and therefore it is a crystal clear that complainant does not falls under the definition of consumer under the Consumer Protection Act.
11. Further we have gone through the prayer clause of complaint wherein complainant has prayed for Rs.57,93,800/- with 18% interest and further Rs.35,00,000/- for economical loss and Rs.5,00,000/- for mental torture and Rs.50,000/- for cost of the complaint and hence by adding 18% interest on Rs.57,93,800/-, the prayer amount will be more than one crore and hence, looking to this fact as per provision of Consumer Protection Act, 1986 this State Commission has no pecuniary jurisdiction to adjudicate this complaint.
12. In view of the above discussion in the considered opinion of this commission, this complaint is not maintainable under Consumer Protection Act as complainant does not fall under the definition of consumer as well as State Commission does not have pecuniary jurisdiction to adjudicate this matter and therefore following final order is passed.
Akshay CC/291/19 Page 6 of 7ORDER
1. The Complaint no.291/19 is dismissed.
2. No order as to costs.
3. Complainant is at liberty to approach the competent court for further proceedings and time spent before the State Commission is excluded under Section 14 of the Limitation Act for filing appropriate proceedings.
4. Registry is directed to send certified copy of this judgment to the parties.
Pronounced in open Court today on 21/08/2023.
[Dr. J. G. Mecwan] [M. J. Mehta]
Member President (Acting)
Akshay CC/291/19 Page 7 of 7