IMPORTANT POINT
The exclusionary clause in Section 2(1)(d)(i) of Consumer Protection Act, 1986 shows that the intention of the legislature appears to be that when the goods are exchanged between a buyer and the seller for commercial purpose or for re-sale, such a commercial transaction is excluded from the purview of the Act. Instead, the legislature intended to confine the redressal to the service contracted or undertaken between the seller and the consumer defined under the Act.

Headnote:Consusmer Protection Act, 1986 -Sections 2(1)(d), 21 and 23- Appellant, an industry, needed imported G.P. Sheets for manufacture of finished goods for resale-Res-pondents, a statutory authority to canalise its imports, entered into a contract for appellants with a foreign seller--Foreign seller not supplying full quantity--Thus respondent could not supply required quantity to appellant--Appellant filed a complaint in National Commission under Section 21--National Commission dismissed the complaint on ground as it is a case of sale of goods for commercial purpose, appellant is not a consumer under Section 2(1)(d)(i) of Act--Appeal against to Supreme Court under Section 23--Whether appellant--Firm is a consumer under Section 2(1)(d)(ii) of the Act for any service ? (No).
Held : Clause (ii) of Section 2(1)(d) does not apply. Considered from this perspective, we are not of the opinion that the appellants are not consumer under Section 2(1)(d)(ii) of the Act. Thereby the complaint would not lie under Section 21 of the Act. (Para 8)

ORDER

The apellant set up an industry at Unnao in Uttar Pradesh. We put up an application to the District Industry Centre, Unnao on 13.6.1986 for the supply of about 300 M.T. of G.P. Steel Sheets. The Government of India had constituted the respondent as statutory authority to canalise the procurement of the canalised items for imports and dfor onward delivery to the consumer industries. The General Manager of the District Industry Centre recommended to the respondent of the appellants requirement of 300 M.T. In furtherance thereof, on 24.8.1987, the respondent had written a letter to the appellants that they could arrange supply of 50 M.T. and directed the appellants to open letters of credit with them and to comply with the requirements mentioned in the letter referred to therein. Relevant terms are as under :

"3. Please note that Marine Insurance is to be arranged by us. For this purpose suppliers will send a cable advice to us immediately after the shipment. Suitable provision in this regard has been made in our Purchaser order.

4. On receipt of documents from the suppliers, our port offices will get in touch with your banker. Please note that the consignment(s) is/are to be cleared by you through customs on receipt of documents from our port office/your bankers to whom documents will be presented against Letter of Credit opened on us. In respect of LC established by you against our authority directly in favour of foreign supplier, you are advised to contract our Regional office immediately upon receipt of documents by your banker for arranging payment of our service charges and insurance etc. and also for getting the documents endorsed in your favour.

5. Please note that in the event of any complaint in regard to shortage damage and quality, you should report the matter to us immediately with all supporting documents to enable us to take up the matter with the foreign suppliers. Yours claim will be settled on us by foreign suppliers and to the extent settlements are received by us. In case of complaints or short receipts and damage, necessary claim should be lodged by you with the insurance company/steamer company while taking delivery of goods at the port. Any visual defect noticed on materials other than damage in handling should be reported immediately upon receipt. All other complaints should be reported within 30 days from the date of receipt of goods.

In the meanwhile, we request you to kindly go through the Purchase Order and confirm per return that the same is in order."

2. After pooling the requirements of various industries, the respondent had placed a consolidated indent wih a foreign seller for the supply of the total required quantity of the canalised items, in this case G.P. Sheets. The foreign seller appears to have expressed difficulty in supplying the entire quantity due to exigencies mentioned in their reply. In the meanwhile, the apellants admittedly had opened letters of credit with the respondent for 50 M.T. of G.P. Sheets. The respondent in turn had opened letters of credit with the foreign suppliers for bulk supply and the foreign suppliers were unable to supply required quantity. Consequently, the respondent had written a letter to the appellants to receive 20% of indented requirement but the appellants seem to have not complied with it. The respondent in the counter-affidavit filed in the Tribunal stated thus:

"The supplier i.e. M/s. Voest Alpine were not in a position to organise shipment against the subsequent LOI as there was delay in setting up of the galvanishing line. Due to these circumstances, the supplier wanted to invoke the Force Majeure clause on the plea that conditions prevailing at their end warranated invocation of Force Majeure and hence inabilty to fulfill contractual obligations qua the respondent.

The respondent keeping in mind the interest of complainant and other end users in the country persisted in their efforts to secur shipment and after great efforts succeeded in obtaini

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