Shree M.B. Industries vs Sushil Bhatar , Mangaldeep Industries Through Sushil Bhatar

SH . Sushil Bhatar, complainant No.1 is the Proprietor of Mangaldeep Industries, Jodhpur, OP2. Complainant No.2 is a Small Scale Industry registered with Industries Department since 24.12.1996 and is engaged in manufacture of chalk powder by grinding stone in pololazer machine. Sh. Sushil Bhatar purchased a 3-roller grinding machine from M.B.Industry, OP, for a sum of Rs.5,40,000/-. The said transaction was finalized on 26.03.2005 and the complainant had paid a sum of Rs.1,01,000/- to OP, vide cheque dated 26.03.2005, Rs.20,000/- were paid on 22.05.2005 and Rs.3,33,000/- were paid vide draft dated 16.07.2005. The complainant had also paid a post-dated cheque (03.10.2005) amounting to Rs.50,000/-. It was agreed between the parties that the said post-dated cheque was to be presented before the Bank only if it transpired that the machine was functioning satisfactorily.

THE complainant wrote a letter to the OP alleging that machine in question was not working properly and as such, post-dated cheque in the sum of Rs.50,000/- dated 03.10.2005 should not be presented. The OP replied that, that was a false allegation sent with ulterior motive for withholding Rs.50,000/- belonging to the OP. Ultimately, a complaint was filed with the District Forum. The District Forum concluded that some parts of the machine supplied to the complainant were defective which were to be repaired and replaced by new parts. The District Forum based its finding on the Inspection Report of Mr.O.P.Sharda who is Bachelor of Engineering in Mechanical Branch. He had inspected the machine on 22.08.2005. Aggrieved by that order, the OP approached the State Commission. The State Commission passed the following order:- "From Exhibit 8, it is clear that the Non-applicant Mukesh Choudhary had assured the complainant that cheque for Rs.50,000/- would be presented before the Bank after 45 days only when the machine gave satisfactory results. The complainant went on approaching the Non-applicant who sent his Mechanic and Operator to the complainant. It also appears that the complainant had to spend money on repairing and replacement of parts. He had to spend amount for going to Udaipur from time to time and it also appears that the machine after its installation could not run satisfactorily till 7.11.2005. Keeping in view all facts, a sum of Rs.31,357/- has been awarded to the complainant for the replacement and repairing of the parts, Rs.19,000/- were awarded paid by the complainant to Sh.Hanuman, Mistry, Meghnath and Shanker. As the machine remained non-operational for more than two and half months, compensation of Rs.20,000/- was also awarded. As we find that some parts of the machine were defective which needed repairing and replacement and under such circumstances, if impugned order has been passed, it cannot be said to be erroneous ".

IT is not out of place to mention here that vide order dated 08.01.2007, the District Forum refused to hear this matter and directed the parties to appear before the Civil Court as it involved contentious issues which can be heard and adjudicated by the Civil Court only. Thereafter, the State Commission remanded this case back to the District Forum with the direction to decide the case. The District Forum again settled the case on 08.05.2008.

THE principal issue raised by the counsel for the petitioner was that the petitioner had obtained the machine for commercial purposes and not for self-employment. He contended that his case is clearly supported by the Apex court ''s view in Laxmi Engineering Works VS. P.S.G. Industrial Institute, (1995) 3 SCC 583. In that particular case, the Supreme Court came to the conclusion that the machine was purchased for commercial purpose and the appellant in that case was not a ''consumer ''. We are unable to locate substance in these arguments. We have perused the affidavit of Sh.Sushil Bhatar. He has stated on oath the following facts. He is the owner of Mangaldeep Industries. This is a Small Scale Industry. He earns Rs.9,000/- p.m. He is earning the amount for his family members and for himself, for livelihood. He contended that he does not have any other source of income. There is no evidence in rebuttal. The complainant is working there with the help of his operator. His affidavit puts his case in an impregnable position and makes his version to be guileless one. It appears that this was a half-hearted plea raised by the OP. This question was never raised before the State Commission. Counsel for the petitioner failed to point out that this point was raised in the revision petition. He further argued that so many workers are working in the factory, but there is no such proof.

MR .O.P.Sharad, in his report, in para No.2, has given/shown a number of defects in the machine. All those defects were discussed by the State Commission. The same hardly needs any reiteration. The revision petition is devoid of merit and, therefore, the same is dismissed.