Mr. Justice S.A. Kader, President—This is a complaint under Section 17 read with Section 12 of the Consumer Protection Act.

2. The Opposite Party is manufacturer of Back Filling Machine, Calendering Machine and Damping Machine used for production of Binding Cloth. The Complainant placed an order with the Opposite Party for the supply of these machineries. The Opposite Party accepted the order and guaranteed performance for a period of one year from the date of commencement of the unit. The machineries were supplied on 31.3.199 0and erected on 12.4.1991. Some more parts were supplied on 5.8.1991. The machinery did not function properly even from the very beginning. According to the Complainant the Unit is a composite one and even if any one of the machineries is not working to its full capacity, the production of the finished fabrics will not be possible. On 17.8.1991, the Engineer of the Opposite Party found that there were defects in the machines and required rectification. On 7.9.1991 the Opposite Party promised to take all measures for speedy rectification and asked the Complainant to bear with them. But nothing was done as promised inspite of repeated requests. The Complainant borrowed from the Tamil Nadu Industrial Investment Corporation and as per the terms of the sale, 10% was payable to the Opposite Party only after working of the machine with full capacity for one year. The Complainant has so far paid Rs. 18,75,621.86. The Complainant has also purchased raw-materials for Rs. 4.00 lakhs, land and building costs of Rs. 3,40,000/-. In all, the Complainant invested Rs. 26,15,621.86. He is also paying Rs. 5,000/-per month by way of salary and Rs. 630/- as electric charges. The Complainant is put to loss because of the failure of the Opposite Party to rectify the defects and deficiencies. Notices were issued by the Complainant. He has therefore come forward with the claim for compensation which is restricted to Rs. 9,90,000/-.

3. The Opposite Party in its counter contented that the machineries have been purchased by the Complainant for commercial purpose and the Complainant is not a consumer. The value of the machineries is Rs. 21,28,469/- and beyond the pecuniary jurisdiction of this Commission. On merits, it is admitted that the Opposite Party offered to sell, install/erect the machineries at the Factory of the Complainant in 1987 itself. But due to the failure of the Opposite Party to make payment the delivery was delayed. The Complainant did not strictly adhere to the payment schedule. Even though the Opposite Party has furnished bank guarantee, the Complainant has not paid the lost 10% of the value. By letter dated 10.6.1991, the Complainant agreed that all the machineries are working properly except doctor blade on the Back Filling Unit. When the Complainant reported to the Opposite Party that the coating plant was not functioned properly, the Opposite Party informed the Complainant that necessary steps would be taken to set-right the plant provided the balance was paid. The Opposite Party states that it was already ready and willing to set-right the matter provided payments were made as agreed. It is the Opposite Party who had incurred loss therefore prayed for the dismissal of the Complaint.

4. Exhibits A1 to A38 have been marked. The Opposite Party did not file any document. Proof affidavits have been filed.

5. When the case was taken up for hearing, the Opposite Party wanted time to inspect the machineries and to rectify the manufacturing defects. The case was therefore adjourned from 26.3.1993 to 13.4.1993. But nothing was happened. Hence the hearing of the case was taken up. The Complainant has made an endorsement in the complaint that it was restricting its claim only to the Back Filling Machine valued at Rs. 7,50,000/-. We are therefore concerned only with Back Filling Machine.

6. The points that arise for consideration are (1) whether the complaint is maintainable? (2) whether there has been any deficiency of