STYLE PACK(ELECTRONIC)COMPANY vs D.CHAIRMAN

THIS appeal is directed against the order dated 15.7.1997 in O.P. No. 55/94 on the file of the District Consumer Disputes Redressal Forum, Sivagangai.

THE opposite party is the appellant while the respondents are the complainants. Short and succinct facts of the case may be related in order to understand the crux of the issue arising for consideration in this action.

The complainants, it appears, had been running a departmental stores dealing in groceries at Karaikkudi. In order to facilitate their business, they placed an order with the opposite party for the manufacture of a packing machine to pack articles in small quantities of 50 gms., 100 gms. and 1000 gms. The order so placed by the complainants after negotiation was accepted by the opposite party. The price of the packing machine ordered was fixed at Rs. 2,95,000/- exclusively of taxes Rs. 1,20,000/-, it is said, was paid by the complainants as an advance for the manufacture of the machine on 7.8.1993. It was agreed by the opposite party to manufacture and deliver the machine within 6 to 8 weeks from the date of placement of an order.

THERE is, of course, a little bit of a controversy between the parties with regard to time of delivery. According to the opposite party, the original purchase order was modified subsequently on 11.3.1994 and delivery was to be effected only from 6 to 8 weeks from the date of purchase order. The controversy with regard to the time and delivery need not at all be adverted to, inasmuch as a finding on such question is not likely to arise, on the facts and in the circumstances of the case, when especially the positive case of the opposite party is that the complainants cannot at all be construed as consumers qua the opposite parties.

THE fact remains that the opposite party manufactured the machine in a deliverable stage only in the month of April, 1994 and when the machine was ready for delivery, the complainants did not take delivery of the machine after paying the balance of the sale consideration to the opposite party. Dispute arose between the parties and it even went to the extent of exchanging legal notices. It is only in such backdrop and setting the complainants located at the doors of the Forum below complaining deficiency in service on the part of the opposite party and for certain reliefs as prayed for in the complaint. The opposite party, as already indicated, took a positive stand that since the complainants were engaged in a commercial activity of selling groceries and the placement of order for the manufacture of machine for the packing of groceries in small packs of 50 gms., 100 gms. and 1000 gms., was only for a commercial purpose and, therefore, it is that the complainants cannot at all be construed as consumers qua the opposite party.

THE Forum below after taking into consideration the materials placed on record, however, recorded a finding that there was deficiency in service on the part of the opposite party and consequently directed the opposite party to pay the advance amount of Rs. 1,20,000/- with interest @ 12% p.a. on and from 9.8.1993 till realisation and cost of Rs. 1,000/-. THE Forum below issued a further direction that if the amount as awarded is not paid within a period of 45 days from the date of its order, the amount so awarded will carry interest @ 18% p.a.

AGGRIEVED by the order as above the opposite party resorted to the present action by engaging a Counsel of their choice namely learned Counsel Mr. V. Ramasubramaniam. On service of process, the respondents/ complainants entered appearance through a Counsel of their choice namely learned Counsel Mr. V. Raghavachari and V. Srimathi.

We heard the arguments of respective learned Counsel appearing for the parties.

EVEN at the outset, we may point out that the Forum below had not sifted or scanned the factual matrix of the case in the proper prospective and that perhaps was the reason for it to have rendered a finding that there was deficiency in service on the part of the opposite party and consequently mulcted liability upon them as stated above. There is no pale of controversy that the complainants had been running a departmental stores dealing with provisions. It is also not in dispute that they placed an order for the manufacture of packing machine with the opposite party in order to facilitate their business of packing provisions sold in small quantity of 50 gms., 100 gms. and 1000 gms. It is thus crystal clear that the packing machine so ordered was definitely for the commercial purpose of selling provisions in their departmental stores. Such being the case, to say that the complainants could be construed as consumers falling under the salient provisions adumbrated under Section 2(1)(d) of the Consumer Protection Act, 1986 [for short, "the Act"] cannot at all be acceded to. No doubt true it is that even if the placement of an order for the manufacturer of a machine by the complainants was for a commercial purpose, there is plausibility or possibility of their being construed as consumers qua the opposite party if there was any warranty period during which the services rendered by the opposite party were deficient, then the complainants could be construed as consumers qua the opposite party falling under Section 2(1)(d)(ii) of the Act. In the case on hand, there was only a placement of an order for the manufacture of machine, that is to say, the machine is in the embryo, that is yet to be manufactured. Only after the manufacture and effecting delivery of the machine warranty for the efficient function of the machine could ever be granted by the manufacturer of the machines namely the opposite party. The machine itself not being produced the question of giving of any warranty will never arise for consideration. Even assuming but not admitting that there was some inordinate delay in the manufacture and effecting delivery of the machine by the opposite party, that sort of a delay can if at all be construed as a breach of contract giving raise to damages in civil action before a competent Court. If the Forum below had applied its mind to the factual matrix of the case with a little bit of care, caution and circumspection, it would not have rendered a lengthy order running to 23 pages. The order of the Forum below, as such, deserves to be set aside and we accordingly do so.

IN fine, the appeal is allowed; the order of the Forum below is set aside and the complaint itself is dismissed. We however, make it crystal clear that this order of ours is not to prejudice the complainants in resorting to action being taken before competent Court of jurisdiction for the realisation of the amount due from the opposite party, if he is so advised. We make no order as to costs on the facts and in the circumstances of the case. Appeal allowed.