JAIN VISHWA BHARTI vs SHRI CEMENT LTD

AGAINST the order dated 18.9.91 passed by the District Forum, Ajmer in Complaint Case No. 510/90 the unsuccessful complainant has filed this appeal under Section 15 of the Consumer Protection Act, 1986 ("the Act" herein), the District Forum dismissed the complaint. Facts leading to this appeal are these:-

A permit for supply of levy cement was issued by the State of Rajasthan on 5.12.1988 in favour of the complainant-appellant. 100 M.T. cement which is filled in 2000 bags was to be supplied at the rate of levy cement. The rate of levy cement is less than the rate for non-levy cement. The complainant-appellant deposited an amount of Rs. 1,04,100/- by D.D. on 28.12.88 as desired by the Opposite Parties and requested for minimum quantity of cement as the construction work in the Campus of the University situated in Ladnu was going on. The Opposite Parties supplied 45 M.T. levy cement which was contained in 900 bags at the rate applicable to levy cement. They failed to supply the rest of the levy cement. The Complainant gave several reminders. The Complainant has alleged that even the State Government through its Food & Civil Supplies Department issued directions on 17.4.1989 to supply 55 M.T. levy cement immediately to the complainant. The Opposite Parties supplied the cement but they charged at the rate applicable to non-levy cement. The Complainant has stated that the Central Government had fixed the rates for the levy cement. The Opposite Parties are liable to supply the full quantity of 100 M.T. at the rates fixed for levy cement for which full amount was deposited in advance with the Opposite Parties. The Complainant filed the complaint claiming Rs. 72,827.18 including Rs. 50,000/-asc ompensation for harassment. Interest @ 18% p.a. was claimed on the amount of Rs. 72,827.18. The following prayer was also made in the complaint:- Xx xx xx xx Opposite Parties Nos. 2, 3 and 4 filed the version of the case contesting the complaint. It was pleaded that the levy cement could be supplied by Opposite Party No. 2 to the complainant in accordance with the conditions and terms. Whatever quantity was available that was supplied in accordance with the terms of the contract. Remaining quantity was supplied to other persons and so the Opposite Parties could not send it to the complainant. Reference was made by the Opposite Parties to their letter No. 3824 dated 1.6.89 that for the refund of the balance of the amount the Opposite Parties are ready to supply non-levy cement as a special case. The Complainant in its letter dated 28.12.89 desired for the supply of non-levy cement and according to the novated contract cement was sent which was accepted by the complainant. It was said that 1020 bags of non-levy cement for Rs. 59,155.26 was sent to the complainant. It was pleaded that after the novation of contract, the old contract automatically came to an end and according to the novated contract both the parties complied with it and, therefore, the complainant is not entitled to any amount from the Opposite Parties. An objection was taken that Opposite Parties Nos. 1, 3 and 4 have wrongly been impleaded as no contract was entered by them. An objection was taken that the Opposite Parties Nos. 1, 3 and 4 have wrongly been impleaded, the complaint is not maintainable. An objection was also raised that the District Forum has no jurisdiction to hear the claim based on the contract.

The Complainant submitted a rejoinder to the version of the case filed on behalf of Opposite Parties Nos. 2,3 and 4. It was submitted that the work of construction was going on and the Opposite Parties took advantage and supplied non-levy cement at a higher rate. The Complainant, reserving his all rights, was compelled to accept the non-levy cement. It cannot be said to be a new contract. In the rejoinder it was reiterated that the complainant is a consumer and the Opposite Parties are traders and that after entering into a contract the Opposite Parties did not supply the goods and realised excess price and, therefore, the complainant is entitled to compensation as stated in para 9 of the complaint. Shri Pukh Raj, power of attorney holder of the complainant submitted his affidavit in support of the complaint. With the affidavit he submitted photo copies of the letters dated 19.12.89, 19.7.89, rules and regulations of the complainant and original muktiyarnamakhas dated 28.4.90.

THE District Forum heard the arguments on 29.8.91 and dismissed the complaint. Hence this appeal by the complainant as aforesaid. We heard Mr. S.C. Mittal and Mr. N.K. Maloo, learned Counsel for the complainant-appellant and Mr. N.K. Bhargava, learned Counsel for the respondents and have considered the record and the order under appeal in the light of the submissions made by them. The finding of the District Forum is that for non-supply of the levy cement, it cannot be said that the service rendered by the Opposite Parties suffered from deficiency as this merely amounts to a breach of contract. It therefore, recorded the finding that in any case the relief sought by the complainant is outside the jurisdiction of the District Forum and the complaint is not maintainable. It, therefore, dismissed the complaint. Learned Counsel for the appellant argued that the approach made by the District Forum is wrong and it has misconstrued Clauses 1 and 4 of the definition of the complaint contained in Section 2(1)(c) of the Act, for, the Opposite Parties-respondents did not supply the goods in time though received money in advance and also despite reminders and government''s order. This amounts to unfair trade practice and compelled by the circumstances the complainant-appellant took non-levy cement because its work was suffering. He, therefore, submitted that the dismissal of the complaint by the District Forum was bad in law. The District Forum was of the opinion that the complaint under Section 12 of the Act lies either for the defective goods or for deficiency in service. Mr. N.K. Maloo, learned Counsel for the complainant submitted that it was a case of deficiency in service and he relied on I (1992) CPJ 432 (MP). He invited our attention to paras 9, 10 & 11 of the report. He also referred to I (1991) CPJ 447 (Cuttack). In this connection, he also referred to para 2 of the rejoinder. On the other hand Mr. N.K. Bhargava, learned Counsel for the respondents supported the order under appeal and referred to 1991 C.P. Cases 579 and also pressed that if it was a case of non-supply of goods, then after breach a new contract came into existence. In this connection, reference was made to I (1992) CPJ 30. We have bestowed our most thoughtful and anxious consideration to the rival contentions of the parties. Complaint has been defined in Section 2(1)(c) is as follows:- "Complaint" means any allegation in writing made by a complainant that:- (i) as a result of any unfair trade practice adopted by any trader, the complainant has suffered loss or damage; (ii) the goods mentioned in the complaint suffer from one or more defects; (iii) the services mentioned in the complaint suffer from deficiency in any respect; (iv) a trader has charged for the goods mentioned in the complaint a price in excess of the price fixed by or under any law for the time being in force or displayed on the goods or any package containing such goods, with a view to obtaining any relief provided by or under this Act;"

COMPLAINANT has been defined in Section 2(1)(b) which reads as under:- "COMPLAINANT" means:- (i) a consumer; or (ii) any voluntary consumer association registered under the Companies Act, 1956 (1 of 1956), or under any other law for the time being in force; or (iii) the Central Government or any State Government, who or which makes a complaint." "Consumer", "Consumer Dispute", "Defect" and "Deficiency" have been defined in Section 2(1)(d), (e), (f) and (g) of the Act. It will be relevant to read the definition of "Service" which is contained in Section 2(1)(o) of the Act. It is as follows:- "Service" means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service."

Having considered the averments made in the complaint it is clear that the case of the complainant is not in respect of the defective cement. There is no justification for the argument of the learned Counsel for the appellant that the Opposite Parties-respondents have charged for the cement from the complainant a price in excess of the price fixed by or under any law for the time being in force. Non-levy cement was supplied to the complainant on the price fixed by the Government for the amount which was with the Opposite Parties as desired by the Complainant as is evident from the Bill. It is not the case of the complainant that for non-levy cement, excess price has been charged for, it was in excess of the price fixed by an order or under any law in force. The case of the complainant which was made out at the appellate stage is that it was a case of unfair trade practice for which the foundation was laid in para 2 of the complaint. Unfair trade practice has been defined in Section 2(1)(r) of the Act which adopts the defintion mentioned in Section 36-A of the M.R.T.P.C. Act. A permit for 100 M.T. of levy cement was issued in favour of the complainant. The opposite parties did not supply 100 MT of cement. This cannot be the case of unfair trade practice. But, at the best it is a breach of contract. Refund of the price that was in deposit with the Opposite Parties does not constitute unfair trade practice. As a matter of fact the contract of supply of 100 M.T. of levy cement, no more existed for the reason that the Opposite Parties made an offer to supply non-levy cement to the complainant in lieu of the balance of the amount that was with them. The Complainant expressed desire for non-levy cement which was supplied and it was accepted. Therefore, the District Forum was right in holding that it was not a case of defective goods. It is also not a case of unfair trade practice. Permit dated 5.12.1988 issued by the Food and Civil Supplies Department, Jaipur was produced by the Complainant for showing that the Sales Manager of Shree Cement Ltd. was required to sell 100 M.T. of cement at levy rate to the complainant. The conditions for the supply are printed on the reverse of the permit. Order confirmation dated 5.12.88 has also been produced by the complainant. Terms and conditions are printed on its reverse. Condition No. 5 printed on the reverse of the order is as follows:- "5. In case it is not possible to supply the whole or part of your above orders, the amount or your advance or balance if any, as the case may be will be refunded without any interest on application."

Condition No. 10 reads as follows:- "10. Supplies are effected in accordance with provisions of cement control order and will be subject to be governed by State and Local Government Authorities."

PHOTOSTAT copies of the reminders and the letter of the Dy. Secretary, Food and Civil Supplies Department were placed on record by the Complainant. On behalf of the Opposite Parties letter dated 1.6.89 was written to the complainant on the subject non-levy cement supply. Material part of that letter has follows:- "Our book of A/c shows credit balance of Rs. 59,169.02 in your Levy A/c as on 31st May, 89. In case, you are interested to take our Shree Brand Non-levy OPC/PPC Cement we can supply you as a special case at the following CSPO Rate excluding Sales Tax and Transportation charges: OPC PPC Ex-factory Rate (including Excise Duty & Packing charges) 999.92 PMT 960.92 PMT The credit balance lying with us can be confirmed only after reconciliation of Account with your Statement of Account and receipt of CPC as well as Octroi, receipts against the supplies already made to you in the past under Levy. However, if any Sales Tax Form is due to be collected from you in connection to the supplies already made in the past against the levy category, we will keep amount with us equivalent to the involvement of Sales Tax. Thanking you and assuring our best services till we remain."

IN reply to this letter, letter dated 9.9.89 was sent by the complainant relating to the refund of excess amount in which the balance amount refundable to the complainant mentioned was Rs.62,152.02. Non-levy cement was sent to the complainant vide bill dated 31.12.89, 1.1.90 and 10.1.90 and the complainant accepted the cement. The case of the Opposite Parties is that by letter dated 28.12.89 the complainant desired to purchase non-levy cement and in pursuance of that it was sent for the balance of the amount that was with the Opposite Parties. Letter dated 1.6.89 was sent for that the amount that was in deposit with the opposite parties. The Opposite parries were ready to supply nonlevy cement which was supplied and as such a new contract came into existence. The District Forum has stated in the impugned order that the relief which the complainant had prayed for was beyond the jurisdiction of the District Forum and, therefore, it dismissed the complaint as not maintainable. Non supply of full quantity of levy cement, the Opposite Parties are said to have rendered deficient service. Order confirmation dated 5.12.88 condition No. 5 clearly lays down that if the full quantity of the levy cement is not supplied, the amount or advance or balance if any as the case may be will be refunded without any interest on application and further that condition No. 10 lays down that supplies are effected in accordance with provisions of cement control order and will be subject to be governed by State and Local Government Authorities. At the most it is a case of breach of contract of supplying 100 M.T. of levy cement to the complainant. The Opposite Parries committed a breach thereof. In the circumstances of the case, the breach of contract does not tantamount to deficiency in service. The matter does not rest at that. Even if, the Opposite Parties committed alleged breach of contract by not supplying full quantity of the levy cement, still thereafter as the balance of the price was in deposit with the Opposite Parties, they offered to supply nonlevy cement against it. This was accepted and the complainant agreed to take non-levy cement and in fact non-levy cement was supplied as stated above vide the three bills referred to above. Thus, the old contract of supplying full quantify of 100 M.T. of levy cement for which a breach was committed was substituted by another subsequent contract which on account of the offer and acceptance came into existence and it stood novated. In these circumstances, no plea of deficiency in service on account of non-supply of full quantity of levy cement can be raised by the complainant. The plea of deficiency of service is not open to the complainant as in the complaint the complainant has stated that on account of compelling circumstances, the complainant accepted 1020 bags of non-levy cement under duress and protect and, therefore, the complainant wanted the difference of price of non-levy cement back from the Opposite Parties. The authorities relied on by the learned Counsel for the appellant are distinguishable. There is no question of any deficiency in the performance of service as contended by the learned Counsel for the appellant.

The District Forum was of the opinion that Section 3 of the Act lays down that the provisions of the Act are in addition to and not in derrogation of the provisions of any other law for the time being in force and, therefore, the rights of the parties are to be governed by the Contract Act of 1872 and Sale of Goods Act, 1930. In that view also as the matter was purely a matter of breach of contract, this cannot give rise to a consumer dispute.

HAVING considered the reasons given by the District Forum, Ajmer, we find ourselves unable to accept the arguments raised on behalf of the complainant-appellant. No illegality has been committed by the District Forum in dismissing the complaint of the complainant-appellant. The order dated 18.9.91 dismissing the complaint, is therefore, affirmed. The appeal fails and it is hereby dismissed. In the circumstances of the case the parties are left to bear their own costs of the appeal. Appeal dismissed.