EAGLE ULTRA-MARINE INDUSTRIES vs PARAMOUNT POLLUTION CONTROL (P) LTD.

THE complainant firm is manufacturing altra-marine blue at 137, GIDC, Odhav, Ahmedabad. THEy invited offer from the persons interested to supply air pollution consultancy services from their chemical unit. Under the advertisement, offers were invited for designing, installing and commissioning air pollution control measure on Turn-Key basis. In paragraph 5, the complainant has averred that the service consultant was required to measure pollution level independently and design the control measure, install at the complainant''s premises, commission the same to the satisfaction of G.C.P.B. and to train two operators for future operation, etc. THE advertisement has been annexed to the complaint at Annexure (1) to the complaint and it reads as under:- Wanted Air-Pollution consultancy survice for a Chemical Unit Offers are invited from the reputed and capable Air Pollution consultants for designing, installing and commissioning Air-Pollution consultancy measure on Turn-Key basis in our factory premises. A detailed note showing the present level of pollutant and rate of flow of omission desired standard, etc., will be available free of charge on application. Interested firms may please apply with experience and bio-data to. We have reproduced the whole advertisement so that the same may be useful to decide the preliminary issue raised by the Opposite Party as to whether this offer was for the purchase of ''goods'' or for ''service''.

THE Opposite Party accepted the offer and quoted the fees for their services, firstly Rs. 1,55,000/-. Subsequently, however, the same was increased by quarrying Rs. 56,000/- bringing the total at Rs. 2,11,000/-. THE offer was accepted and various payments were made by the complainant Again the fees were increased to the tune of Rs. 2,29,000/- in all. THE complainant then alleges that he has made 97% payment against the quotation of Rs. 2,29,000/-, that is to say, the firm has paid Rs. 2,23,246/- as per the particulars shown in para 12 of the complaint. It is then the case of the com- plainant that the opposite party has, however, not fulfilled its part of the contract even within the extended time limit and has still not completed its part of the contract and is refusing to comply with the same. THE Complainant has further averred that the Opposite Party has also adopted unfair trade practice of recovering money and not giving the services as required to be given by them under the agreement. It is also the complainant''s grievance, further, that the opposite party has failed in rendering the services required from them and, therefore, they have committed breach of the service contract and that it is because of their negligence in designing the Air Pollution control system that the same is not workable and is not as per the standard required by G.C.P.B. and, therefore, according to the complainant, the opposite party is liable to refund the amount of Rs. 2,23,246/- paid by the complainant alongwith 18 percent interest from the date of payments. In response to our summons, the opposite party has appeared and filed its version, raising the preliminary objection as to the maintainability of the complaint on the ground of our jurisdiction to entertain the same, contending inter-alia that the question that arises is a question of interpretation of the contract and that the same can be decided by the Civil Court only and not by this Consumer Disputes Redressal Commission. The Opposite Party has also contended that they are not adopting any unfair trade practice.

The preliminary objection raised by the Opposite Party is very vague and without full particulars. However, at the instance of the parties, we have heard the arguments on the preliminary issue as to the jurisdiction on this Commission to entertain the present dispute between the parties.

BOTH the parties took time from us for settlement of their disputes and we have adjourned the matter from time to time to enable them to settle the disputes. However, ultimately, they could not arrive at any settlement and hence we are required to decide the question of jurisdiction as preliminary issue. The learned Advocate Mr. P.B. Majumdar, appearing for the opposite party, has raised a contention through not specifically raised in the written statement to the effect that the present contract is not a contract of ''service'' but is a contract for sale of goods; and since the said sale is for ''commercial purpose'', the jurisdiction of the Commission is excluded under the provision of Section 2(1)(d)(i) of the Act

NOW, in order to appreciate the objection and to decide the controversy between the parties, it is necessary to refer to some of the averments made in the written statement. In para 4, the Opposite Party has admitted that the work was given for the purpose of designing, installing and commissioning the Air-Pollution Control measure on Turn-Key basis. The Opposite Party has also admitted that ultimately, the final amount was agreed to be Rs. 2,29,000/-. In para 8 of the reply, the opposite party has further averred that it was true that Mr. P.V. Patel visited the complainant''s factory and that during the meeting with the complainant, whatever things were suggested by the complainant, had been agreed to by the opposite party. Not only that, but the scope of the work was also agreed between the parties. Thus, the nature of the work which the opponent was required to do, was already arrived at in writing which is now the part of the contract between the complainant and the opposite party. Ultimately, on that basis, the final amount of Rs. 23.000/- was fixed between the parties for doing the work which was already prescribed between the parties under the head of "... Scope of work..". The dispute raised by the Opposite Party in para 11 wherein it is submitted that the quantity of gas was found much more higher, while, as per the understanding agreed between the parties, the system for gas flow for 5000 M3 and 60 C was constructed by the other side. Though the opposite party has not mentioned the actual flow of gas in its written statement, they have stated in para 13 of the Affidavit as under: "....After the system supplied by my company was commissioned, it was observed that the temperature of gas rose to 250 C, and as a result, the volume of gas rose to 16000 to 17000. This grave situation was immediately brought to the notice of the complainants by my Company, under its letter dated 23-1- 1989"

It is further stated in the said para that the opposite party again wrote to the complainant that unless and until the gas quantity and temperature were controlled and were brought within the operating range, it was not advisable to put the Vanturi-Scrubber into operation. This written statement, read with the Affidavit filed on behalf of the opposite party leaves no doubt that the system which was supplied and installed is inadequate, considering the gas flow and was not useful to the complainant, unless the same was modified or an additional unit may be installed. The question that arises for our consideration, therefore, is to examine and determine as to what are the rights and liabilities of the parties which can easily be decided, having regard to the adjustment and considering the correspondence produced on record. But the preliminary objection raised by Mr. Majumdar and modifying the argument is a point of greater importance and, therefore, we proceed to decide the same as preliminary issue.

IT is true that the Opposite Party is required to design, install and commission the whole plant suitable to the needs of the complainant factory on the turn-key basis, that is to say, the opposite party was under an obligation also to see that the system is complete and starts function on turning sweavering the key.

HOWEVER, the question here is, whether this is a ''service contract'' or a sale of particular equipment or system for controlling the pollution? In designing a machinery or an system suitable to the needs of the complainant consumer, contains both the elements, viz. the material as well as service. But the contract here cannot be said to be a ''service contract''. The contract is for sale of an equipment or a system to be tailored according to the needs of the complainant. In our opinion, this type of contract is mainly a contract for sale of equipment or system to control the pollution level of the factory, which is also an integral component of the manufacturing activities carried on by complainant. The law requires that the poisonous-gas discharged by the factory should be purified and controlled so as not to endanger or cause any harm to the living beings or pollute the air. We are unable to accept the argument of Mr. Vakharia that merely because the opposite party undertook to design and install the equipment by using their skill, and knowledge it can be said to be a contract of service. In our opinion, this is essentially a sale of equipment and or system at the agreed price and since this equipment or system is meant for the ''commercial activities'' of the complainant, the complaint will be not fall within the definition of the term Consumer as contained in Section 2(1)(d)(i) of the Consumer Protection Act

In the aforesaid view of the matter, the complainant cannot be held to be a ''consumer''. That being so, we have no jurisdiction to entertain and decide this complaint. The same is, therefore, liable to be rejected. We, therefore, dismiss the complaint. There will, however, be no order as to costs. Complaint dismissed.