Saroj Agarwal vs BATLIBOI AND CO.LTD.

SMT. Saroj Agarwal has filed this complaint under Section 12 of the Consumer Protection Act, 1986 against the opposite parties M/s. Batliboi & Co. and others to claim an approximate amount exceeding Rs. 9.00 lakhs including a refund of Rs. 50,000/- charged as excess payment with an interest of 18% per annum; and interest @ 24% per annum on Rs. 9.06 lakhs paid as cost of the machine in question; Rs. 3.00 lakhs on account of compensation as losses to her business; Rs. 5.00 lakhs as compensation for physical discomfort and mental agony, etc. including Rs. 11,000/- as cost of litigation.

FACTS relevant for disposal of this complaint in brief and as alleged by the complainant are that in order to earn her livelihood she had entered into an agreement to purchase one Solitaire Centre Less Grinding Machine Model OMV-8" for a total amount of Rs. 9.10 lakhs and paid an amount of Rs. 2.25 lakhs as advance being 25% cost of the machine. It is the grievance of the complainant that though the opposite parties had assured that the aforesaid machine would be delivered to her by the end of the year 1995; it could not be supplied and that on account of it, she was deprived of the amount of 20% subsidy which was available through the agency of District Industries Centre. It is further grievance of the complainant that not only the opposite parties did not supply the said machine in time but that they also increased its cost firstly from Rs. 9.10 lakhs to Rs. 9.60 lakhs and thereafter to Rs. 10.35 lakhs to which she had to concede; besides extending the period of delivery of the aforesaid machine from February, 1996 to March, 1996. That though she had to pay to the opposite parties an amount of Rs. 7.35 lakhs also vide cheque dated 22.3.1996 yet the machine in question was not delivered to her even in the extended time. She has accordingly approached this Commission to claim the aforesaid amounts complaining not only a deficiency of rendering the services on the part of the opposite parties but also alleging huge financial loss besides undergoing mental agonly and physical dis-comfort etc. The opposite party Nos. 1 and 2 M/s. Batliboi & Co. Ltd. have filed joint reply whereas M/s. Solitaire Machines Tools Ltd. (opp. party No. 3) has filed a separate reply. The stand of the opposite parties has been that firstly the complainant is not a consumer and secondly that whatever cost of the machine was increased it was due to delay in the production of the machine by the original manufacturer. That the complainant did agree and gave consent to the increased costs of the machine as well. The opposite parties, therefore, have contended that the complaint is not tenable and whatever delay in the supply of machine has been, it has been due to reasons beyond control and force majeure. It has also been urged that the machine in question is completely a commercial machine which is used by large industries to fetch money from the market and to earn profits and is not operateable single handed and without assistance of technical persons and cannot be operated by the complainant herself as alleged by her for earning her livelihood.

Both the parties have filed documents and evidence in support of their respective stands.

WE heard the learned Counsel for the complainant at great length and have carefully gone through the material placed on the record. Though the complainant has tried to assert that she had to purchase the machine in question to earn her livelihood but the facts are otherwise as is evident from the documents placed on record. The plea of the complainant that she had suffered a loss on account of non-receipt of a comparable subsidy by the District Industries Centre of the State and for not fulfilling an order received by her through one Marmecha Mfg. & Trading Co., Hyderabad to supply 20,000 pieces of Ball Bearings per month besides another order from Shanker Bearing Co., Delhi to supply 15,000 bearings as per letters at Annexures 15 and 16 exhibit that the complainant has tried to circumvent the provisions of the Consumer Protection Act to obtain a relief which cannot be awarded by a Consumer Forum established under the Consumer Protection Act. From a perusal of certain communications dated 31.7.1997, 3.10.1997 and the correspondence received by the opposite parties from the Development Commissioner, Kandla Free Trade Zone etc. which is an undertaking of the Govt. of India, Ministry of Commerce; it is made out that the complainant is not a new enterpreneur but is a manufacturer of SLV Brand Bearing and running a commercial business at a large scale. The correspondence entered into by the complainant is signed by one Mr. Chauhan and Mr. V. Agarwal indicating themselves as Manager and Proprietors of the Complainant''s establishment whereas the complainant Smt. Saroj Agarwal has filed this complaint as a Proprietor of National Engineers. Moreover, her allegations in the complaint that in absence of non-receipt of the machine in question; the other ancilliary machines purchased by her could not be made operative in time; which was the main machine in order to carry forward a large scale commercial business of manufacturing ball bearings; exhibit an entirely new case against what she has projected. It all goes to show that the complainant is not a consumer within the defition of Section 2(1)(d) of the Consumer Protection Act, 1986 nor the dispute a consumer dispute but is a patent commercial dispute. The complainant has tried to seek the redressal of her grievances based mainly on a dispute of a commercial nature and a breach of agreement to supply the article in question through the agency of a Consumer Fora. To check such a tendency on the part of big business houses, Hon''ble the National Commission has in the case of Bombay Dyeing and Manufacturing Co. Ltd. v. Union Bank of India, has held as under : "The Consumer Protection Act was passed to provide quick justice without any Court-fee to the Consumers. It was an additional remedy to all other remedies provided by various other Acts. The Company may come within the meaning of ''consumer'' under the Consumer Protection Act [Section 2 (1)(d)]. Service may also include banking [Section 2 (1)(o)]. But that does not mean all commercial disputes between a Bank and a large Company must be decided by the Consumer Courts. No Court-fee is payable in a Consumer Court so that people of modest means can seek expeditious justice in the Consumer Court. The entire purpose behind setting up of the Consumer Court was to provide quick, easy and affordable justice to common people who could not otherwise enforce their rights before a Court of Law. A large number of complaints have been filed in Consumer Courts at all levels all over India and the arrears of the cases pending disposal are mounting every day. One of the reasons of such mounting arrears is that large commercial organisations like the complainant is invoking the jurisdiction of the Consumer Courts to settle their commercial disputes. There is no reason why the big companies should abandon the remedy provided by the Civil Court and seek justice from the Consumer Court by passing the Civil Courts altogether. This will have the effect of clogging the wheels of justice in the Consumer Courts and common people are subjected to unreasonable delay in getting their cases heard."

FURTHER also it has been held by Hon''ble the National Commission in the case of Sakthi Engineering Works and Another v. Sri Krishna Coir Rope Industry, III (2000) CPJ 13 (NC)=2000 CTJ 751 (NC) that : "Bearing this principle in mind, the Supreme Court examined the meaning of the ''consumer'' as provided in Section 2(1)(d) of the Act in which it was specifically laid that a consumer will not include person who buys goods for resale or for any commercial purpose. When amendment was made in 1993 an Explanation to the definition of the consumer was added. The effect of this Explanation is that even though a person who purchases goods for commercial purpose will not be a consumer within the meaning of the Act yet he will be treated as a consumer if the goods bought by him are used by him exclusively for the purpose of his earning livelihood by means of self-employment. The important words used in this Explanation are "used by him exclusively," i.e. for the purpose of earning his livelihood and ''by means of self-employment''. If a person is not exclusively using the goods for the purpose of earning his livelihood he will not be able to get benefit of this Explanation......."

The principles laid down above apply with full force here. In view of foregoing analysis of the material on record, we are of the firm opinion that the complaint filed by the complainant is not tenable before this Commission and is hereby dismissed with costs of Rs. 6,000/- to the opposite parties. Complaint dismissed.