SALEX OFFICE SYSTEM P.LTD vs MAYANK PHOTO COPIER

AGAINST the order dated 21.6.93 passed by the District Forum, Jodhpur in Complaint Case No. 319/93 the Opposite Parties have filed this revision under Section 17(b) of the Consumer Protection Act, 1986 ("the Act" herein). The District Forum over-ruled the preliminary objection the photo copier machine was purchased for commercial purpose. The complainant non-petitioner filed a complaint against the Opposite Parties petitioners alleging that it purchased one automatic plain paper photocopier machine Model Selex 52 R.E. on 4.7.91 for Rs. 70,000/-. The drum of the copier machine was defective. A complaint was made to the Opposite Parties but no reply was given by them. The complainant inferred that the Opposite Parties had sold old machine to it. It, therefore, filed a complaint praying that the Opposite Parties may be directed to take back the copier machine and refund its price and also to pay Rs. 10,000/- as compensation. Interest @ 18% was also claimed on Rs. 70,000/-.

THE Opposite Parties submitted preliminary objections stating that the photo copier machine was purchased for commercial purpose. It was alleged that the complaint is not maintainable before the District Forum as the complainant cannot be said to be a consumer. THE complainant submitted a reply to the application raising preliminary objections stating that the machine was purchased for self employment and not for commercial purpose. THE District Forum heard the learned Counsel for the parties. The District Forum over ruled the preliminary objection observing that at that stage the complaint cannot be dismissed. It directed the Opposite Parties to file version of the case giving them liberty to argue the point of commercial purpose thereafter. Against that revision has been filed by the Opposite Partiespetitioners as stated above.

On 13.8.93 notice was ordered to be issued to the petitioners/Counsel that the revision petition will be taken up for admission on 15.6.93. Notices were sent to the petitioners for the purpose of admission on 25.8.93. They were not received after service and, therefore, they were awaited on 15.9.93. On 5.10.93 presumption of service was raised against petitioner No. 1 and its appearance was awaited. A fresh notice was ordered to be issued to petitioner No. 2 at Jaipur address. The notice was issued to petitioner "No. 2 at Jaipur address on 6.10.93 fixing today''s date of hearing. The notice was not received unserved. It is presumed that petitioner No. 2 has also been served. Nobody has appeared on behalf of the petitioners. We have carefully perused the order under revision.

IT may be stated that revision petition was received by post. No power was received alongwith the revision petition. Signatures of the petitioner are not at the proper place but on the margin. However, we thought proper to issue notice to the petitioners separately for the purpose of admission. The Opposite Parties have not filed the version of the case until the order dated 21.8.93 was passed by the District Forum. The Opposite Parties had raised preliminary objection that the copier machine was purchased for commercial purpose and, therefore, the complainant is not consumer. This was disputed by the complainant by filing a reply to the application. The definition of "consumer" is contained in Section 2(1)(d) of the Act. The relevant part for our purpose reads as follows:- "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 re-sale or for any commercial purpose; or

(ii) hires any services 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 beneficiary of such services other than the person who hires the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person;"

This definition was amended by Section 2(5) of the Consumer Protection Amendment Ordinance, 1993 which came into force on June 18,1993. (Now Consumer Protection (Amendment) Act, 1993) and explanation has been added to Section 2(1)(d) which is as follows:- "Explanation-For the purpose of Subclause (i), "commercial purpose" does not include use by a consumer of goods, bought and used by him exclusively for the purpose of earning his livelihood, by means of self employment."

PRIOR to amendment, the expression commercial purpose used in Section 2 (1)(d)(i) of the Act came up for consideration in I (1992) CPJ 140. After noticing the earlier decisions rendered by the National Commission it observed as follows:- "9. From the above statement of the legal position it is clear that a purchase of goods can be said to be for a commercial purpose only if the following conditions are satisfied:- (i) The goods must have been purchased for being used in some profit making activity engaged in on a large scale. (ii) There should be close and direct nexus between the purpose of goods and the profit making activity. 10. It has also been clearly indicated by us in the said judgment that the benefits of the Act would be available even in cases of purchase of goods by a person for use in some small venture such as for self employment etc. which he might embark upon in order to make a living, as distinct from a large scale manufacturing, processing or trading activity carried on for profit. Thus cases of persons who purchase goods or even machinery for self-employment purpose without engaging in any trading or manufacturing business on a large scale for purpose of profit making will not fall within the scope of the exclusion clause in the statutory definition in Section 2(1)(d)(i) and hence such person''s are consumer entitled to protection under the Act."

The National Commission in II (1993) CPJ 231 (NC) observed as under:- "7. In the present case, the petitioner-complainant was only running a type institute when he placed an order for Canon N.P. 150 photocopier with the Company. By no stretch of imagination it can be said that the said photocopier had any connection with any large scale profit making activity that the petitioner was carrying on. It also cannot be said that the said photocopier would have brought him large profits. According to the petitioner he was charging only 40 to 50 paise per copy. He had purchased the photocopier for Rs. 91,000/- after taking a loan from the Bank. He must be paying interest to the Bank. While preparing copies he must be using consumable material. Therefore, it cannot be said that the said photocopier would have enabled him to generate large profits. After considering all the materials on the record we are of the opinion that the petitioner had not purchased the photocopier Canon N.P. 150 for a "commercial purpose''. In other words, he must have to be held a ''consumer'' as defined in Clause (d) of Section 2(1) of the Act."

It is, therefore, clear that Section 2(1)(d)(i) of the Act as it stood prior to the amendment it was held that the persons who purchase goods or even machinery for self employment purpose without engaging in any trading or manufacturing business on a large scale for the purpose of profit making will not fall within the scope of the exclusion clause of Section 2(1)(d)(i) and such person is entitled to protection under the Act. LIS is still pending and even the Explanation added to Section 2(1)(d) by the Amendment Ordinance (Amendment Act) is attracted according to which commercial purpose does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood or self employment.

THE complainant non-petitioner in the reply to the application has stated that he has purchased the copier machine for earning his livelihood. In these circumstances the District Forum was right in holding that the complaint could not be dismissed at that stage and directed the Opposite Parties to file version of the case in reply to the complaint filed by the complainant. THE District Forum has left open that after the version of the case has been filed the question of commercial purpose will be determined on merits in accordance with law, as, the District Forum has observed that the Opposite Parties will be at liberty to argue the point of commercial purpose on merits. We do not find any illegality or jurisdictional error in the order passed by the District Forum. THE revision petition is dismissed. Revision Petition dismissed.