Back
2010(4) CPR 415
MAHARASHTRA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, AURANGABAD
S.G. Deshmukh, Presiding Judicial Member and Uma S. Bora, Member
M/s Boolani Engineering
Corporation —Appellant
versus
Baliram Vithal Kadam —Respondent
F.A. No. 721 of 2001
Decided on 12.1.2010
Counsel for the Parties:
For the Appellant:Shri D.S. Kulkarni, Advocate.
For the Respondent: None.
IMPORTANT POINT
When matter is in respect of breach of contract it did not constitute consumer dispute as envisaged by provision of Consumer Protection Act.
Headnote:Consumer Protection Act, 1986—Section 2(i)(d)—Consumer dispute—Complainant placed order on appellant for supply of 50 mm Extruder machine—Cost of machine was Rs. 5,20,000 and complainant paid Rs. 1,00,000 as advance—Machine was promised to be delivered in 5-6 weeks—Machine was not delivered within stipulated period or in further period and amount paid as advance was not refunded—Claim for refund of Rs. 1,00,000 and compensation—Whether complaint could be said to be a consumer dispute? No.
Held: We perused the papers and gave our anxious thoughts to the argument advanced by learned counsel for appellant and citations relied by him. There is no dispute that complainant has come with the case that he placed an order of 50 mm extruder machine with equipment on 9.9.96. According to him as per agreement said machine was to be delivered within 5-6 weeks. It is also not disputed that he had paid advance of Rs.1,00,000 by demand draft. According to him, whenever he pursued for machine, as per agreement the machine was not ready for delivery. Complaint in question does not relate to the defect in the machine but it is in respect of breach of contract of sell of machine to be supplied. Consumer dispute arise due to supply of defective goods or deficiency in service.
In R.P. Sharma’s case (supra) cited by learned counsel for appellant, Hon’ble National Commission has held that when matter is in respect of breach of contract it did not constitute consumer dispute as envisaged by provision of Consumer Protection Act. In the instant case also as order placed was not complied within specified period complainant has approached to the Forum for refund of advance amount and compensation for non-supply of machine in time. Complaint should have been referred to pursue his ordinary remedy by way of institution of civil suit and no relief should have been granted. In view of the ratio of Hon’ble National Commission we are inclined to hold that dispute in question does not relate to consumer dispute as envisaged under Consumer Protection Act. Complainant will be at liberty to approach Civil Court. (Paras 7 & 8)
Result: Appeal allowed.
S.G. Deshmukh, Presiding Judicial Member—The present appeal is filed by original opponent against the judgment and order dated 16.4.2001 in complaint case No.37/97 passed by District Forum, Osmanabad.
2. Respondent/Org. Complainant’s case before the Forum is that he spent Rs.3,50,000 for construction of MIDC plot No.B-61. It, is contended that on 9.9.96 he placed an order for 50 mm extruder machine for manufacturing of PVC wires and other material with the respondent. It is contended that cost of machine was Rs.5,20,000 with including taxes etc. cost was fixed for Rs.6,30,269. It is contended that machine was to be delivered within 5-6 weeks. It is contended that after expiry of 5-6 weeks complainant enquired with the present appellant about completion of work. Appellant asked. additional 2-3 weeks for supply of machine. Complainant made enquiry on phone after 2-3 weeks. He was told that small work of machine was still left it will require 15 days more. It is contended that thereafter complainant visited the respondent. He was told that 1-1/2 months time would be required to make available machine. After expiry of said period complainant made enquiry but appellant did not reply properly. Appellant tried to avoid giving proper replies. It is contended that complainant issued notice dated 17.3.1997. Machine is not ready till today. It is contended that had complainant entered in the production he would have earned profit of Rs.l,50,000 till date. Thus complainant approached the Forum for refund of Rs.1,00,000 and amount of Rs.1,50,000 as compensation.
3. Present appellant appeared before the Forum and resisted the claim. It is contended that respondent/org. complainant is not consumer as per Section 2(1)(d) of Consumer Protection Act and Consumer Fora has no jurisdiction to entertain the complaint. It is contended that complaint does not relate to any defects in the goods. But it is in respect of alleged breach of contract of sell of goods to be supplied which is purely civil liability for which remedy lies in the Civil Court. Complaint is liable to be dismissed. It is contended that transaction had taken place at Mumbai order is placed at Mumbai. Confirmation and signing of the order alongwith remittance of advance took place at Mumbai. Forum has no jurisdiction to entertain the complaint. Appropriate Forum would have been Mumbai only. It is further contended that complainant had come to their office and placed an order for 50 mm extruder for manufacturing of PVC wires and cables on 9.9.96 for Rs.6,00,269 on the terms and conditions given in the order. He paid Rs.1,00,000 advance. It is contended that machine was completed within specified period. Accordingly, complainant was informed. However complainant informed due to some problem from bankers he would not be able to take the machine and requested for cancellation of order and for refund of the advance. It is contended that they had informed him machine is ready, it is not possible to cancel the order and advise him to pursue the matter with the bankers. It is contended that complainant had visited them on 11.3.1997. They had explained that the machine is ready. They had asked him when machine will be lifted against payment. Complainant told that after return to Osmanabad he will write them. It is contended that letter dated 11.3.1997 reminding complainant to lift the machine, confirm their visit. Instead of sending instructions for dispatch of machine complainant sent legal notice which was replied by them. They sent final reminder letter dated 7.4.1997 which was returned with remark not found.
4. The Forum below after going through the papers and hearing the parties allowed the complaint and directed appellant to pay Rs.1,00,000 with interest @ 18% p.a. from 9.9.96. Forum also directed appellant to pay Rs.10,000 as compensation for final loss.
5. Being aggrieved by the said judgment and order passed by the District Forum, Osmanabad, original opponent same in ap
