CANTONMENT BOARD vs AIR TECH PRIVATE LIMITED

FOR the limited purpose of disposing of the threshold issue of the maintainability of this complaint, it is unnecessary to delve deeply into the facts. It suffices to mention that on the complainant''s own showing they placed an order for the supply of 170 covered garbage containers on the opposite party. The primal grievance raised on their behalf is that despite the payment of Rs. 6,66,500/- to the opposite party they have not delivered the material aforesaid according to the terms and conditions and therefore, the complainant is entitled to sue them for non-delivery. It is suggested that the opposite party attempted to deliver some part of the order of the said garbage containers in an unassembled condition through some unauthorised official of the Board and by this subterfuge obtained a substantial amount of payment against the same.

THE express relief claimed in the prayer clause is that the opposite party be directed to deliver 170 garbage containers for which it has secured payment to the tune of 90% of their value, and also claimed interest on the said amount at the rate of 18 per cent. As the averments in the complaint did not in the least indicate as to how the dispute could be raised within the consumer jurisdiction, the complaint had been listed for preliminary hearing. We have heard the learned Counsel in support thereof.

Mr. V.K. Vashishta had somewhat halfheartedly contended that the complainant come within the ambit of the definition of a ''consumer'' under Section 2(1)(d)(i). Somewhat curiously it was argued that there was a deficiency in the goods supplied by the manufacturer or in the alternative he had resorted to an unfair trade practice.

WE are afraid that the learned Counsel is on a wholly untenable ground and the submissions are somewhat of the mark. On the complainant''s own allegations it is manifest that as yet the contracted goods have not been delivered to them. This being so, there can be no question of holding that these are defective and consequently no cause of action with regard to the purchase of the goods can arise within the consumer jurisdiction. On the learned counsel''s own submissions it was the case that because of non-delivery, the property in the goods have not yet passed to the complainant board and inevitably the sale would yet be incomplete. In such a situation, even putting the complainant''s case at the highest, they would not come within even the wide-ranging definition of a ''consumer'' as regards the sale or purchase of goods. What next calls for notice is the fact that Mr. Vashishta had primarily rested himself on the ground that there was a deficiency in the goods as the same were sought to be supplied in so far as the same were in an unassembled state. This submission has only to be noticed and rejected. It is somewhat elementary that under the Act, the concept of deficiency can possibly arise only in the context of the hiring of any service. The very definition of the word and the relevant definition of the ''consumer'' would leave no manner of doubt on that score and it would be wasteful to elaborate the issue. Herein, on the complainant''s own allegations the case being one of the purchase of goods, there can arise no question of any deficiency in the services contracted for.

ALMOST as an argument of desperation it was then submitted that the opposite party had 2 been guilty of unfair trade practice and therefore, a consumer dispute arises. When confronted with the complaint which does not even give a hint or employ the phrase of ''unfair trade practice'' the learned counsel had little or no answer to the question. Equally it has to be recalled that the phrase ''unfair trade practice'' is a term of art which has the same meaning as defined in the exhaustive definition thereof under the Monopolies and Restrictive Trade Practice, 1969. Counsel did not even make an attempt to show that the allegation herein comes under the said definition. On an overall appraisal of the matter it is somewhat manifest that herein the complainants are either seeking a specific performance of the contract with the opposite party or damages for the breach thereof and the non-delivery of goods. The relief in terms sought is for a direction to deliver 170 garbage containers is plainly beyond the scope of Section 14 of the Act. To conclude it is somewhat plain that the complainant neither comes within the definition of a ''consumer'' nor does it disclose a cause of action which can be adjudicated within this jurisdiction and equally the relief sought is beyond the parameters prescribed under Section 14. Inevitably the complaint is not maintainable and has to be dismissed on that score. This however, would not preclude the complainant in any way to resort to their ordinary remedy under the civil law. Complaint dismissed.