DREAM WORKS ENTERTAINMENT AND SOFTWARE LTD. vs B.S.E.S. LIMITED

WE are proceeding to dispose of this appeal at the stage of its admission itself on perusal of the material available in the appeal paper book and on hearing the learned Advocate for appellants. (For brevity''s sake appellants who is original complainant is referred to as "complainant" and respondent who are original O.P. is referred to as "Electricity Board").

THE complainant has filed this appeal against the order of the District Forum dated 24.2.2004 dismissing the complaint of the complainant as it appears at the threshold. It is noticed that the complainant approached the District Forum alleging deficiency on the part of the Electricity Board in demanding exorbitant consumption charges for supply made available to the complainant.

It appears that the complainant also moved interim application before the District Forum as it was threatened by the Electricity Board of disconnection of his electric supply.

IT is noticed that at the stage of entertainment of the interim application itself, the District Forum has proceeded to dismiss the complaint. On perusal of the impugned order, it is noticed that the District Forum was persuaded to dismiss the complaint with a view that the issue raised by the complainant in their complaint pertains to fixation of Tariff by the Electricity Board and referring to the judgments of the National Commission mentioned in paragraph 4 of the impugned judgment in the case of U.P.S.E.B. and Others v. M/s. Anand Cane Crushers and Fulchand Aggarwal v. Bihar S.E.B and Others, proceeded to dismiss the complaint as being not amenable to its jurisdiction.

WE have reservation as far as reasonings which persuaded the District Forum to take view as it is done. However, as will be pointed out herein, for that matter, even otherwise the complaint of the complainant will not be amenable as consumer dispute. The complaint herein has been filed on 15.10.2003 i.e., after the amendment of Consumer Protection Act, 1986, were brought into force with effect from 15.3.2003 in which various amendments came to be introduced in Consumer Protection Act, 1986 Section 2(1)(d)(ii) has also been amended. We reproduce the said Sub-clause (ii) here in below- "Hires or avails of any services for a consideration which has been paid or promised or partly promised, or under any system of deferred payment and include 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 payments, 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 purpose."

THE explanation "but does not include persons who avails of such services for any Commercial purposes" was introduced which was not there prior to amendment of Consumer Protection Act, 1986.

THE amendment if one reads, it makes clear that the hirer of services happens to be a Commercial Entity/Organisation, then it cannot avail of remedy under Consumer Protection Act, 1986-before Consumer Fora. Coming to the case in hand, it is noticed that the complainant is a Corporate Entity registered under Companies Act and if one reads the averments as such appearing in the complaint, the same clearly spell out the same is a Commercial Entity.

It, therefore, emerges that that complainant is a Commercial Entity have hired the services from the Electricity Board and in view of the amendment noticed hereinabove, the dispute as filed as Consumer dispute before the Consumer Fora will not be maintainable and as such entertainable.

THEREFORE, for different reasoning than assigned by the District Fora, we proceed to confirm the order of the District Forum dismissing the complaint. ORDER 1. Appeal stands dismissed. 2. No order as to cost. 3. At this stage Mr. Naidu after obtaining instruction from Mr. Rajesh Chaudhari, Director of the appellant who is present before us requests that some breathing time be given to the complainant as otherwise there is eminent threat held out by the Electricity Board of disconnection of the supply which would adversely affect the business of the complainant. It is stated that some time is needed for the complainant to approach appropriate Forum.

O.P./Electricity Board are not before us. We have also held that the dispute is filed before Consumer Fora as a Consumer dispute is also not maintainable. However, considering the predicament of the complainant and the imminent threat expressed above, as a matter of indulgence, on certain terms indicated below, we are inclined to grant some breathing time to the complainant/appellant. We ascertained from the learned Counsel for the appellant the extent of dues towards consumption charges payable to the respondents and it was stated that the complainants have already paid some amount to the Electricity Board/respondent and a sum of around Rs. 3 lakhs is due and payable according to calculation of the complainant. THEREFORE, in fairness, we direct the complainant/appellant to directly pay a sum of Rs. 3 lakhs to the O.P./Electricity Board, which payment will be without prejudice to the rights and contentions of both the parties and subject to the outcome in the proceedings which the complainant may adopt before appropriate Forum. The complainant shall directly pay accordingly a sum of Rs. 3 lakhs forthwith and on such payment being made, the respondents/O.Ps. shall withhold their action being the subject matter of the dispute herein as held out in their notice dated 26.2.2004 for a period of two weeks from today i.e., 12.3.2004. It is clarified that the said period is granted with the expectation that the complainant would approach appropriate Court. Office to furnish copies of the order to the parties. Appeal dismissed.