Non-supply of goods or delay in supply of goods is not a defect in the goods in respect of which alone a grievance can be agitated under the Consumer Protection Act.

Mr. Justice B.N. Sinha, President—The complainant has filed this case for refund of Rs. 40,462.44 of which the complainant had paid to the opposite parties for supply of cement to the complainant and has claimed 18% interest per annum.

2. The case of the complainant may be briefly stated. The complainant got a permit dated 18.5.85 issued by the Government of Bihar for the supply of 60 M.T. of cement with the Sone Valley Portland Cement Company Private Limited (the opposite Party No. 1 to 4) through O.P. No. 5 and a sum of Rs. 63,282/- was paid towards the same by the complainant, vide order of registration- cum-receipt dated 3.6.85 as modified by order dated 3.8.85. The delivery was to be taken by the complainant at the factory according to the schedule given below : —

Two trucks on 17.6.85

Two trucks on 19.6.85 and

One truck on 22.6.85

The complainant sent two trucks as per schedule on 17.6.85 but no cement was supplied to him and the complainant was informed that the date of dispatch of cement was indefinite. After considerable delay the complainant was supplied only two trucks of cement one on 3.8.85 and the other on 4.8.85 and thus only 24 M.T. of cement was supplied to the complainant and no further supply was made thereafter to the complainant. Nor was the balance of the amount paid by the complainant was returned to the complainant. The complainant made repeated requests to settle the accounts but the opposite party informed the complainant that the factory of the opposite party is under lockout and the account can be settled only after the factory opens. To the information of the complainant the factory of the opposite party reopened sometime in 1990 but the opposite party did not take any steps to settle the accounts of the complainant though such assurance had been given by the opposite party and the complainant made several requests even thereafter but the opposite party paid no heed and hence the complainant was forced to file the case before this Commission, with the relief’s mentioned above.

3. On being noticed the opposite party appeared and the opposite party Nos. 1 to 4 have filed a joint written statement. The opposite party has inter-alia challenged the maintainability of the case, stating that the Consumer Court cannot be utilized for a breach of contract.

4. The learned Counsel for the complainant and the opposite party were heard in detail. The main objection taken on behalf of the opposite party is that the case is not maintainable under the Consumer Protection Act (hereinafter called the Act).

5. There is substance in this submission being made on behalf of the opposite party. Non-supply of goods or the delay in supply of goods is not a defect in the goods in respect of which alone a grievance can be agitated under the Act. Recently in the case of Bricks Manufacturers Association and Others v. Coal India Limited and Others (1993) I CTJ 99 (NCDRC) it has been held by the National Commission that the Commission has repeatedly held that non-supply of goods or delay in supply of goods is not a defect in the goods in respect of which alone a grievance can be agitated before the various For a constituted under the Act. Of course the case before the National Commission was in respect of supply of the permitted coal quantity, but the principle decided in the case is applicable to the facts of the present case also.

6. The present case cannot be brought under the category of deficiency in service. We are fortified in our view by the principle laid down by the National Commission in the case of M/s. Maruti Udyog Limited v. Mrs. Bhuvana Vishwanathan & Others, II (1993) CPJ 172 (NC)=II (1993) CPC 163 (NC).

7. Lastly, the O.Ps. have also averred in their written version that there was default on the part of the complainant in taking delivery of cement. The complainant has filed the present case for recovery of the amount alleging breach of contract by the O.Ps. which is disputed by the O.Ps. The facts being in dispute, i