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RAJASTHAN STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, JAIPUR
Hon’ble Mr. justice S.K.M. Lodha,
President & Mr. Damodar Thanvi, Member
JAIN VISHWA BHARTI—Appellant
versus
SHRI CEMENT LTD. & ORS.—Respondents
Appeal No. 29 of 1992—Decided on 16.8.1993
Non-supply of the full quantity of levy cement, even if it amounts to a breach of contract, does not constitute deficiency in service under the Consumer Protection Act, 1986.
Headnote:
CONSUMER PROTECTION ACT, 1986 - SECTION 2(1)(C), 2(1)(D), 2(1)(E), 2(1)(F), 2(1)(G), 2(1)(O), 2(1)(R), 3, 12 - DEFICIENCY IN SERVICE - NON-SUPPLY OF FULL QUANTITY OF LEVY CEMENT - BREACH OF CONTRACT - NOVATION OF CONTRACT - CONSUMER DISPUTE - JURISDICTION OF DISTRICT FORUM - CONSUMER PROTECTION ACT, 1986 - SECTION 2(1)(C), 2(1)(D), 2(1)(E), 2(1)(F), 2(1)(G), 2(1)(O), 2(1)(R), 3, 12 - DEFICIENCY IN SERVICE - NON-SUPPLY OF FULL QUANTITY OF LEVY CEMENT - BREACH OF CONTRACT - NOVATION OF CONTRACT - CONSUMER DISPUTE - JURISDICTION OF DISTRICT FORUM.
Fact of the Case:
The complainant, a university, was issued a permit for the supply of 100 MT of levy cement at a rate lower than the non-levy cement. The complainant deposited an amount of Rs. 1,04,100/- with the opposite parties, who supplied only 45 MT of levy cement and failed to supply the rest despite reminders. The complainant alleged that the opposite parties charged a higher rate for the non-levy cement supplied later.
Finding of the Court:
The District Forum dismissed the complaint, holding that the non-supply of the levy cement did not amount to deficiency in service but was a breach of contract, and that the relief sought by the complainant was beyond its jurisdiction.
Issues: 1. Whether the non-supply of the full quantity of levy cement amounted to deficiency in service? 2. Whether the subsequent supply of non-levy cement at a higher rate constituted a new contract, thereby novating the original contract? 3. Whether the District Forum had jurisdiction to entertain the complaint.
Ratio Decidendi: 1. The court held that the non-supply of the full quantity of levy cement did not amount to deficiency in service, as the complainant had accepted the non-levy cement supplied later. 2. The court held that the subsequent supply of non-levy cement at a higher rate constituted a new contract, thereby novating the original contract. 3. The court held that the District Forum did not have jurisdiction to entertain the complaint, as the matter was purely a breach of contract.
Final Decision: The appeal was dismissed, and the order of the District Forum was affirmed.
Mr. Justice S.K.M. Lodha, President— Against the order dated 18.9.91 passed by the District Forum, Ajmer in Complaint Case No. 510/90 the unsuccessful complainant has filed this appeal under Section 15 of the Consumer Protection Act, 1986 (“the Act” herein), the District Forum dismissed the complaint. Facts leading to this appeal are these:—
2. A permit for supply of levy cement was issued by the State of Rajasthan on 5.12.1988 in favour of the complainant-appellant. 100 M.T. cement which is filled in 2000 bags was to be supplied at the rate of levy cement. The rate of levy cement is less than the rate for non-levy cement. The complainant-appellant deposited an amount of Rs. 1,04,100/- by D.D. on 28.12.88 as desired by the Opposite Parties and requested for minimum quantity of cement as the construction work in the Campus of the University situated in Ladnu was going on. The Opposite Parties supplied 45 M.T. levy cement which was contained in 900 bags at the rate applicable to levy cement. They failed to supply the rest of the levy cement. The Complainant gave several reminders. The Complainant has alleged that even the State Government through its Food & Civil Supplies Department issued directions on 17.4.1989 to supply 55 M.T. levy cement immediately to the complainant. The Opposite Parties supplied the cement but they charged at the rate applicable to non-levy cement. The Complainant has stated that the Central Government had fixed the rates for the levy cement. The Opposite Parties are liable to supply the full quantity of 100 M.T. at the rates fixed for levy cement for which full amount was deposited in advance with the Opposite Parties. The Complainant filed the complaint claiming Rs. 72,827.18 including Rs. 50,000/-asc ompensation for harassment. Interest @ 18% p.a. was claimed on the amount of Rs. 72,827.18. The following prayer was also made in the complaint:—
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3. Opposite Parties Nos. 2, 3 and 4 filed the version of the case contesting the complaint. It was pleaded that the levy cement could be supplied by Opposite Party No. 2 to the complainant in accordance with the conditions and terms. Whatever quantity was available that was supplied in accordance with the terms of the contract. Remaining quantity was supplied to other persons and so the Opposite Parties could not send it to the complainant. Reference was made by the Opposite Parties to their letter No. 3824 dated 1.6.89 that for the refund of the balance of the amount the Opposite Parties are ready to supply non-levy cement as a special case. The Complainant in its letter dated 28.12.89 desired for the supply of non-levy cement and according to the novated contract cement was sent which was accepted by the complainant. It was said that 1020 bags of non-levy cement for Rs. 59,155.26 was sent to the complainant. It was pleaded that after the novation of contract, the old contract automatically came to an end and according to the novated contract both the parties complied with it and, therefore, the complainant is not entitled to any amount from the Opposite Parties. An objection was taken that Opposite Parties Nos. 1, 3 and 4 have wrongly been impleaded as no contract was entered by them. An objection was taken that the Opposite Parties Nos. 1, 3 and 4 have wrongly been impleaded, the complaint is not maintainable. An objection was also raised that the District Forum has no jurisdiction to hear the claim based on the contract.
4. The Complainant submitted a rejoinder to the version of the case filed on behalf of Opposite Parties Nos. 2,3 and 4. It was submitted that the work of construction was going on and the Opposite Parties took advantage and supplied non-levy cement at a higher rate. The Complainant, reserving his all rights, was compelled to accept the non-levy cement. It cannot be said to be a new contract. In the rejoinder it was reiterated that the complainant is a consumer and the Opposite Parties are traders and that after entering into a
