ENGINEERING WORKS vs DINEX (INDIA) PRIVATE LTD.

THIS is an appeal filed by the opposite party against the order dated 14.5.93 passed by the State Consumer Disputes Redressal Commission, Uttar Pradesh, Lucknow. By the impugned order the State Commission has directed the opposite party to refund Rs. 2,00,000/- alongwith interest @ 12% p.a to the complainant-respondent herein. The parties will be referred to by their nomenclature.

THE brief facts as gathered from the records are that the complainant decided to purchase a Dissolved Acetylene (DA) Plant from the opposite party who is a manufacturer of the above referred plants. On 21.5.85 a written agreement was entered into between the parties wherein the opposite party had undertaken to supply complete D.A. Plant to the complainant after erection, commissioning and trial run etc. in the premises of the complainant in Distt. Dehradun on turn-key basis. THE price of the plant was agreed at Rs. 8 lakhs (inclusive of all taxes and expenses upto the site). THE complainant paid Rs. 2 lakhs in advance to the opposite party. As per the agreement the opposite party was to complete the installation of the plant at the site within 5/6 months, but it was after 22 months that the opposite party supplied partial equipment and sent a bill for Rs. 2,10,000/- dated 23.3.87. THE opposite party failed to supply the balance equipment and has not started the erection etc. of the D.A. Plant at the site of the complainant. On failure of the opposite party to supply the complete machinery, the complainant asked the opposite party to take back the parts of the machinery already supplied as it was of no use to the complainant unless the complete plant was erected and to refund the sum of Rs. 2 lakhs already paid as advance. It is the further allegation of the complainant that the opposite party had agreed to refund the said amount but have not refunded so far. Now several D.A. Plants have come up in the vicinity of the complainant''s site and they have captured the market and the complainant has been deprived of the advantage of being the pioneer in the market in this field. The complainant has thus been financially hard hit due to the act of the opposite party which according to the complainant amounts to unfair trade practice. The complainant has already invested a sum of Rs. 3 lakhs in the purchase of land, its development and construction etc. for erection of the D.A. Plant at the site. The complainant has obtained water connection, electricity connection, telephone connection and also procured "No Objection Certificate" from the Pollution Control Board and approval of the Development Authority. Hence, the complainant has claimed for the refund of Rs. 2 lakhs from the opposite party alongwith interest @ 18% per annum from the date of payment till the date of refund plus Rs. 3,00,000/- spent by the complainant on the construction etc. and in obtaining necessary connections and certificate from the Pollution Control Board. The complainant also claimed Rs. 600/- p.m. as expenses for taking care at the site.

The opposite party on being noticed filed their version and inter-alia pleaded that the complainant is not a consumer within the definition of Section 2(1)(d)(i) of Consumer Protection Act, 1986 (for short the Act) as they had contracted to purchase the goods from the opposite party for a commercial purpose and therefore the complainant is hit by Section 2(1)(d)(i) of the said Act. The opposite party also denied other allegations of the complainant and made counter averments. We do not intend to go into those allegations as we are of the opinion that the preliminary objection taken by the opposite party has force.

ADMITTEDLY, the complainant which is a Company had contracted to purchase the D.A. Plant for commercial purpose. u/Section 2(1)(d)(i) of the Act defines "Consumer" 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;"

Thus the complainant which is a private limited company does not fall within the definition of ''Consumer'' as given in the Act. It was urged on behalf of the complainant-respondent herein that the opposite party had undertaken to supply the goods and render the services and the services have fallen below the standard as represented by them. We are of the opinion that it cannot be said that the opposite party had contracted to perform and service. They had agreed to supply the plant in question on turn-key basis at the site. The agreement/ contract entered into between the parties cannot be said to be a work contract as cost of erection etc. had to be borne by the seller according to the agreement. A copy of the agreement has been filed on the record which provides that "the buyer (i.e., complainant) has accepted to procure one plant for producing acetylene gas from the seller (i.e., opposite party) on turn-key basis." The other relevant portion of the clause of the agreement is reproduced under : "(I) Scope of Supply : This shall include comprehensive and detailed design, engineering, technical know- how, manufacture / supply transport, octroi etc., including sales tax, excise and all other taxes, erection, commissioning, putting the plant into commercial production of Dissolved Acetylene Gas at the site of the buyer. The Plant shall include all equipments, components, meters, instruments, safety and control devices, valves, piping, electrical motors with suitable switches and control board etc. starters, cables, distribution panels required for the process from charging of carbide to the pigtails of acetylene charging racks, weighment of cylinders and charging of acetone into cylinders. Besides, other components and spares essentially needed for smooth running of the plant for at least 18 months from the date of supply. The seller shall also provide adequate arrangements and other such equipment required for treatment of affluent and pollution control, if needed."

THUS, this Agreement clearly shows that the price of the plant included the price of its erection at the site. In our opinion, such a contract cannot be said to be a contract for hiring the services of the seller. In view of the above observations, we hold that the complainant is not a consumer as defined in the Act and therefore, he has no locus standi to file the complaint under the above Act. Accordingly, we accept the present appeal, set aside the impugned order and dismiss the complaint. In the circumstances of the case, we leave the parties to bear their own costs of the proceedings throughout. Appeal accepted. _______________