MONARCH PHOTOCOMP And PRINTERS vs SUPER ENGINEERING CORPORATION

A Notice of Enquiry (NOE) was issued to Super Engineering Corporation, Bombay and KDMR Services, Baroda on 2.8.1994 under Section 36-A of the Monopolies and Restrictive Trade Practices Act, 1969 (for brief the Act) on the basis of a complaint filed by Monarch Photocomp and Printers, Baroda that the respondents have indulged in unfair trade practices.

THE facts of the case as contained in the complaint may be briefly summed up as follows : Respondent No. 2 is a distributor and only agent in Gujarat for the machinery manufactured by respondent No. 1. In the year 1989, the respondents represented to the complainant that their off-set printing machine "Super Stallon-15" can print with maximum speed of 6,000 IPH with minimum paper size of 7" x 5". THE respondent No. 1 had issued a pamphlet indicating the salient features. THE complainant made a total payment of Rs. 1,74,275/- and took delivery of the machine at Baroda after inspecting the same at Bombay. Though the complainant pointed out that the performance of the machine was not satisfactory at the time of inspection at Bombay, it took delivery of the machine as it had reasons to believe that rectification in all respects might have been carried out. Since the performance of the machine was not satisfactory, the complainants approached the President of Baroda Master Printers Association and the President of the Gujarat Printers Association to use their good offices and intervene. As a result, a tripartite meeting was held at Bombay on 25th November, 1989. It was decided that the machine would be sent to Bombay by the complainant for repairs and respondent No. 1 should give satisfactory trial of the machine and the machine should give a printing speed of 3,000 IPH. THE respondent No. 1 thereafter asked for Rs. 6,660/- as a rectification charges and also stated that Rs. 500/- per month as occupancy charges for storage of the machine would be levied. THE complainant filed a complaint with the State Consumer Redressal Commission at Ahmedabad. During the proceedings in the State Consumer Redressal Commission, the respondent agreed for a satisfactory trial of the machine at Baroda at its own cost. Since respondent No. 1 wanted the complainant to pay the octroi charges at Baroda, the complainant did not accept delivery of the machine which was sent by respondent No. 1 from Bombay at Baroda. THE complaint of the complainant was dismissed by the State Commission for want of jurisdiction. THE complainant has alleged before the Commission that respondents have indulged in unfair trade practices. Respondent No. 1 filed a reply to the NOE in which the following main points have been made : (1) The State Consumer Redressal Commission at Ahmedabad dismissed the complaint, firstly, because the complaint was not a "consumer" under Consumer Protection Act and also because the nature of the dispute between the parties was such that it could be satisfactorily tried only by a Civil Court. The National Consumers Disputes Redressal Commission dismissed the appeal of the complainant. These facts were concealed by the complainant. (2) No representation/claim was made by the respondent to the complaint with regard, to the speed of the machine. The machine was demonstrated and the complainants approved it before purchase. The specification of the machine and the terms and conditions of the transactions was specifically mentioned in the purchase order dated 3.12.1989. (3) The respondent had not released any brochure, advertisement or pamphlet before the complainant ordered for the purchase of the machine. (4) There was no manufacturing defect in the machine. The complainant had installed the machine in open area exposed to wind and rain and adverse weather conditions and did not employ a trained printer and thus mismanaged the running of the machine. (5) In the tripartite meeting held on 25.11.1989 the complainant had voluntarily signed minutes of the meeting before witnesses agreeing to printing speed of 3,000 IPH. The present case of the complainant is only an after-thought. (6) The respondents rectified the machine and raised the bill as it was received in a damaged condition and many parts had to be replaced. The complainant did not take delivery of the machine although it was satisfactorily renovated as per the certificate of a chartered engineer. As per the direction of the State Consumer Redressal Commission, the machine was despatched to the complainant on perfect working condition on 30.4.1991. The. respondent filed the complaint without taking delivery. (7) The respondent has discontinued the manufacture of Off-set Printing Machine in 1990. No reply was filed on behalf of respondent No. 2 and the proceedings were set ex-parte against it.

The respondent also filed an affidavit dated 22.12.1994 in which it was stated that as per the direction of the State Consumer Redressal Commission it had despatched the machine to the complainant on 30.4.1991. On enquiry, Transport Corporation of India, the transporter, intimated the respondent on 12.7.1991 that the consignment of the machine was lying at Fertilizer Nagar, since 1.5.1991 as the consignee has refused to take delivery. The transporter had sent a notice to the consignee on 4.6.1991 that if the consignment was not taken delivery they would transfer the consignment to the unclaimed goods department. After the pleadings were complete, the following issues were framed : (1) Whether the NOE is maintainable for the preliminary objections taken by R-l in the reply from pages 1 to 5 ? (2) Whether the respondents have been or are indulging in unfair trade practices as indicated in the NOE ? (3) If the answer to the foregoing issue is in the affirmative, whether the unfair trade practices are prejudicial to the public interest or to the interest of the consumer or consumers generally ?

ON behalf of the complainant Mr. Sarvadaman Jani was produced as a witness who was cross-examined by the Advocate for the respondent. ON behalf of the respondent Mr. R.P. Aggarwal was produced as a witness, who was cross-examined by Mr. Rajiv Mehta, attorney for the complainant. I gave hearing to Shri Rajiv Mehta, attorney for the complainant and Mr. M.L. Sachdev, Advocate for the respondent. I have carefully gone through the records of the case, evaluated the evidence adduced and also given due consideration to the arguments advanced at the time of final hearing. The charges of indulgence in unfair trade practices against the respondents levelled by the complainant revolves around two points. Firstly, the respondents represented that the capacity of the machine was 6,000 IPH and secondly, the performance of the machine was not satisfactory resulting in deficiency in service. It is the case of the respondent that when the machine was sold to the complainant there was no representation to the effect that its capacity was 6,000 IPH. The purchase order dated 3.12.1988 which is the basis for the supply of the machine did not make any reference to such a capacity. The pamphlet produced by the complainant showing 6,000 IPH was brought out by the respondent later and was never issued to the complainant. The respondent never produced or sold any machine on the basis of the pamphlet as the manufacturing of the machine was discontinued after supply of the machine in question to the complainant. The respondent also stated that the complainant was given a demonstration of the machine at Bombay before the machine was sold. The respondent wrote a letter dated 31st May, 1989 to the complainant in which it mentioned "We showed you the demonstration of the machine on 22nd and 23rd May, 1989 that all type of paper stock, viz., the manifold, card ...of different sizes. You had informed that you are satisfied with the machine and that you are sending the D/D for Rs. 1,49,275/- before 30.5.1989 so that we may despatch the machine to you for door delivery". The respondent has also produced a letter of the complainant dated 23rd July, 1989 which was a reply to the letter dated 31st May, 1989 with which the D/D for the amount was sent. The respondent also pointed out that the minutes of the tripartite meeting which was held on 25.11.1989 clearly stated that the respondent "will rectify the machine within 60 days and give satisfactory, trial of the machine before the Secretary or other knowledgeable observer of the federation at an average printing speed of 3,000 IPH". This, according to the respondent will show that the stand of the complainant that the machine was of the capacity of 6,000 IPH is an after-thought. The complainant had not denied the documents produced by the respondents as evidence except to state that the minutes of the meeting dated 25.11.1989 was signed as otherwise it "will have to incur further loss and will have to wait for unlimited period for reparation". On the basis of the facts and circumstances, I have no alternative but to come to the conclusion that the representation that the capacity of the machine was 6,000 IPH by the respondent before the machine was sold to the complainant has not been established.

ON the question whether there has been deficiency in service on the part of the Respondent No. 1, the facts of the case ought to be looked into in proper perspective in order to prove the allegation of indulgence in unfair trade practice. The complainant had filed a complaint with the State Consumer Disputes Redressal Commission, Ahmedabad. During the pendency of the complaint the parties agreed before the State Commission that the complainant would visit the site in the presence of an expert and verify the working of the machine and the respondent in this case would deliver the machine if the same was found to be satisfactory or if there were defects the same would be got repaired as per the terms of the agreement between the parties. ON a complaint from the complainant in this case that the respondent had disobeyed the orders of the State Commission, the matter was further examined and the respondent in this case had agreed to despatch the machine to the complainant at Baroda and give a demonstration. The machine was sent but the same was not taken delivery of by the complainant in this case due to a dispute as to who will pay the octroi duty. Under the circumstances, the State Commission in its final order had stated "we have tried our level best to bring the parties together so that some solution can be obtained in the matter. But somehow or other solution could not be reached and we have heard the matter on merit". It is, therefore, clear that no conclusion as to whether the machine was repaired satisfactorily or not can be reached at this stage. I am afraid, the complainant himself should assume the responsibility for bringing the matter to this state of affairs. What has been discussed above will clearly indicate that the charges of deficiency in service levelled against the respondent have not been established in order to hold them guilty of indulgence in unfair trade practices. In the reply to the NOE the respondent No. 1 has taken the stand that since the State Consumer''s Disputes Redressal Commission dismissed the complaint of the complainant and the National Consumer Disputes Redressal Commission also dismissed the appeal filed by the complainant against the orders of the Commission the present complaint is not maintainable. Based on this, an issue was framed in this whether the NOE was maintainable on account of preliminary objections taken by the Respondent No. 1. I find that the State Commission examined the question whether the complainant, who was the same in the case before it as in this case, was a "consumer" within the meaning of Section 2(1)(d)(i) of the Consumer Protection Act. The Commission came to the conclusion that the machine in question was purchased by the complainant for commercial purposes and as such it was not a consumer for the purpose of the Act. The National Commission also dismissed the appeal on this ground. The NOE in this case was issued under Section 36B(a) of the Act. By virtue of the ruling of the High Court of Delhi in the case of Ballarpur Industries Limited v. The Director General (Investigation and Registration), reported in 1988 (64) Company Cases at p. 884, it has been held that, since the definition of "consumer" is not found in the MRTP Act, the definition thereof contained in the Consumer Protection Act, 1986 (the CP Act for brief) will have to be adopted for the purpose. In this case both the State Consumer''s Disputes Redressal Commission and the National Consumer Disputes Redressal Commission have held that the complainant was not a "consumer" under the Consumer Protection Act. It is, therefore, not necessary for me to examine this aspect further. It follows that the complainant is not a "consumer" for the purpose of the MRTP Act also and therefore, he cannot move the Commission under Section 36B(a) of the Act. In view of this I have to answer the preliminary issue in the affirmative and hold that the NOE is not maintainable. Even if the complaint is maintainable, I have already dwelt at some length with the matter to come to the conclusion that the/ answer to Issue No. 2 is in the negative and the question of examining issue No. 3 will not arise. In the premises, I direct that the NOE issued against the respondents in this case be dischargejd. There is no order as to costs. NOE discharged.