The judgment establishes that in the case of a pure and simple contract for the supply of goods, the Consumer Forum has no jurisdiction to entertain a complaint unless there is a defect in the goods supplied or a deficiency in the rendering of any service.

ORDER

D. Appa Rao, President (Oral)- Having heard the learned Counsel for the complainant and having perused the record, we are of the opinion that this complaint can be disposed of at the stage of admission.

2. The complainant filed this complaint for a direction to R1 M/s. Telco Construction Equipment Company Ltd. to deliver the excavator or refund the entire sale consideration of Rs. 50 lakh paid together with interest, compensation and costs.

3. The case of the complainant in brief is that he placed an order for purchase of Hydraulic excavator with R1 for Rs. 48,22,272 for his personal use. R2 the Magma Fincorp Ltd. agreed to finance the transaction. He paid Rs. 5 lakhs as an advance towards margin money. R3 is a loan processing agent. Since he was pre-occupied with his contract works, he availed the services of R3 and issued 38 signed blank post-dated cheques. Though he instructed him to consult before finalizing each transaction, R3 colluded with R1 and R2 and handed over the cheques to R2. Despite his request R2 had paid the entire sale consideration amount to R1 without his consent and knowledge. When contacted R1 informed that it has delivered the machine to R3, R2 filed a false claim before the sole Arbitrator claiming Rs. 43,43,214 against him, besides complaints under Section 138 of the Negotiable Instruments Act for dishonour of the cheques. In the light of above transaction he becomes a consumer for non-delivery of machine. It did not supply machinery despite receiving the entire sale consideration. It amounts to deficiency of service. Therefore, he filed the complaint seeking possession of the machine in the alternative for refund of sale consideration besides compensation and costs.

4. The maintainability of the complaint under the Consumer Protection Act is raised and consequently the jurisdiction of this Commission to entertain the dispute as the contract was for sale of goods and the complaint is in regard to alleged breach of contract in relation to supply of machine that was allegedly agreed upon between the parties.

5. The learned Counsel for the complainant contended that non-supply of material, having received the consideration, would amount to deficiency in service, and in support of his contention relied a decision of Supreme Court in Bangalore Development Authority v. Syndicate Bank, reported in 2007 (4) SCJ 701. That was a case where a Development Authority formed layouts and allotted plots/flats or houses by inviting applications. In that context Their Lordships opined that the above activity amounted to rendering of service covering expression "service made available to potential users" occurring in Section 2(o) of the Act.

6. He also relied on a decision in Singh Engineering Works v. S.K. Blue Metal Works, reported in 2007 (2) ALT 1 (CPA) (NC). The National Commission was considering a case pertaining to supply and installation of machinery at the premises of the complainant and availed the services of the appellant for self-employment. There the complainant entered into an agreement to supply, erect and instal the entire machinery in order to start a quarry business. The moot question that was raised was that it was for commercial purpose, and therefore was not amenable to the jurisdiction of Consumer Protection Act. Considering the scope and ambit of Section 2(1)(d)(ii) and explanation as stood prior and after modification in 2003, it was held that if the machine is purchased besides availment of services for self-employment, it would not be a commercial purpose debarring complainant, from seeking relief in a Consumer Forum. It was categorically held that service of installation of machine was also availed and therefore it would come under the purview of the Consumer Protection Act.

7. Coming to the facts, the contract was for purchase of machinery viz., goods. We clarify that in case of contract for sale of goods a complaint can be filed under the C.P. Act, only if the goods supplied suffer from any