SHIND ENGINEERING INDUSTRIES vs J.S.BIRDI And SONS.

THIS is a complaint under Section 17 read with Section 12 of the Consumer Protection Act, 1986(for short ''the Act'').

THE is running a factory known as M/s. Shind Engineering Industries, Goindwal Sahib (Punjab). THE ''s case was that to manufacture Cold Forged Hex, Nuts & Bolts, and cycle and automobile parts, it purchased a Cold Nut Former Machine (Cap. 5/ 16") for Rs. 3,41,000/- from M/s. J.S. Birdi & Sons, Ludhiana and on 15.1.1991, i.e. after about seven months of the first purchase, the second machine was purchased from the same firm for the same price. THE primal grievance of the complainant was that the machines supplied by the Opposite-party turned to be defective and that the stipulated performance parameter was not achieved and even though the complainant requested the to rectify the defects, its technicians were unable to remove the defects. THE thereupon preferred this complaint praying that the Opposite-party be directed to refund the price paid or replace the machines together with compensation of Rs. 15,09,571 /- for the loss and injury suffered by it due to the negligence of the Opposite-party. On notice being issued, the Opposite-party filed a detailed written statement wherein it has stoutly refuted the contention of the complainant that the machines supplied by it were defective. According to the Opposite-party, the first machine was supplied to the complainant on 23.6.1990 after due trial of the same to the satisfaction of the complainant in accordance with the agreement and the second machine was supplied to it on 15.1.1991, i.e. after about seven months of the supply of earlier machine. The firm plea taken by the Opposite-party was that if the first machine supplied to the complainant had developed defects from the very beginning then the latter would not have purchased the second machine and that the complainant had cooked up a story later on to avoid the balance payment of Rs. 1,22,300/-outstanding against it.

On a close perusal of the documents (Annexures CI to C5) and the affidavit filed by the complainant and its averments made in the complaint we feel doubtful as to whether the purchase of the two machines was not for commercial purpose. The complainant''s Counsel when asked by us submitted that the complainant for its business venture, had purchased two machines. This assertion of the learned Counsel finds further corroboration from the averments made in the complaint at paragraph 15 where the complainant has categorically stated that due to defective machines, it suffered financial loss to the tune of Rs. 15,09,571 /- and its professional reputation had also suffered. This is, therefore, a large profit making venture and by no stretch of imagination can it be called to be self employment purpose, as alleged by the complainant. The complainant is not, therefore, a ''consumer'' within the meaning of Section 2(1) (d)(i) of the Act as the machines were purchased for commercial purpose.

THE National Commission''s decision in Synco Textiles (Pvt) Ltd. v. Greaves Cotton & Co. Ltd., I (1991) CPJ 499 (NC) and Oswal Fine Arts v. H.M.T. Madras, I (1991) CPJ 330 (NC)=1991 (1) CPC 330., amply illustrate the above position. Applying the norms, laid down by the National Commission in the aforementioned decisions, we are constrained to declare that the complainant does not fit itself in the definition of ''consumer'' as envisaged in the Act. The learned Counsel for the complainant has argued that this case falls under Sub-clause (ii) of Section 2(1)(b) of the Act. He submitted that there was deficiency in service of the Opposite-party as it could not remove the defects in the machines. It is true that in the agreement Annexure C2 between the parties, it was provided that if the performance of the machines was not upto the mark within 12 months, then the same would be replaced or price paid would be refunded, but the machines were purchased on 23.6.1990 and 15.1.1991 and therefore, the warranty period had expired before the filing of the complaint. Under these circumstances, the complainant cannot take the benefit of the warranty clause.

ON going through Section 24-A of the Act, we find that the Forums cannot admit a complaint unless it is filed within two years from the date on which the cause of action has arisen. Thus, assuming at the very highest in favour of the complainant, his case cannot possibly come within the afore noticed prescribed period of limitation. In this context, it is instructive to refer to Annexure C8 to the complaint. This was a formal notice dated 3.7.1991 sent by the complainant to the Opposite-party expressly telling it that despite repeated requests, the defects in the machines had not been removed and requested it to reimburse the amount of Rs. 68,300/- spent by the complainant for repairing the machines. To this notice the complainant received no response from the Opposite-party. This communication is dated 3.7.1991 and clearly enough the limitation expired on 3.7.1993 and from this terminus, the complaint was barred by more than seven months 14 days. Not an iota of explanation worth the name is even suggested for this gross lache. For the foregoing reasons, we dismiss the present complaint with costs which we assess at Rs. 1,000/-. '' Complaint dismissed.