IMPORTANT POINT
Dominant purpose of import of high tech machine is to earn profit – Complainant is not consumer & Complaint not maintainable.

ORDER

This is a Consumer Complaint filed under Consumer Protection Act, 1986 (for short, Act) by M/s Moradabad Infrastructure Development Pvt. Ltd. (hereinafter referred to as Complainant) against M/s Novo Impex & Anr. (hereinafter referred to as Opposite Party Nos.1 and 2). The Complaint has been filed by Mr.Nitin Saxena, President, All India Consumer Education Society (Regd.), who got an authorization for filing the Complaint as Authorized Representative for Mr.Mohd. Iqbal Shamsi, an Authorized Person of the Complainant having its office at New Delhi. The Complainant purchased one Waterjet Cutting Machine from Opposite Party No.2 through Opposite Party No.1 for installation at factory site in Moradabad and the said machine after its import and installation failed to perform properly. The Complainant had purchased this machine with a view to fulfil a contractual obligation of Government of India and failure of machine led to breach of contract and financial and other losses.

2. The Complaint was objected to by the Opposite Parties on ground of maintainability citing the Orders of the Honble Supreme Court in its various judgments including those of:-

i. Laxmi Engineering Works Vs. P.S.G. Industrial Institute 1995 SCC (3) 583;

ii. Shrikant G. Mantri Vs. Punjab National Bank 2022 SCC OnLine SC 218.

3. Learned Counsel for both parties made submission on the maintainability of the Complaint. Learned Counsel for the Opposite Parties submitted that Section 2 (1) (d) of the Consumer Protection Act, 1986 specifically excludes person, who obtained goods for service for any commercial purpose. The explanation to the Section only excludes goods purchased by a person “used by him” or for “earning livelihood by self-employment”. Learned Counsel submitted that the Complainant does not qualify for the exemption provided under the Act and as such cannot be treated as a consumer for the purposes of filing of Complaint. The Complaint is liable to be dismissed on such ground.

4. Learned Authorized Representative of the Complainant submitted on affidavit that the Complaint is maintainable and that the Complainant is a consumer under the Act. He is submitted that since the machine had not worked even a single day, hence the question of Complainant using the said machine for commercial purpose does not arise. He cited following the Orders of the Hon’ble Supreme Court in support of his argument that the Complainant is a consumer:-

i. Sunil Kohli and Ors. Vs. Purearth Infrastructure Ltd., Civil Appeal No.9004-9005 of 2018 decided on 01.10.2019.

ii. Rohit Chaudhary & Anr. Vs. M/s Vipul Ltd., Civil Appeal No.5858 of 2015 decided on 06.09.2023.

5. The main issue to be decided in this Complaint is whether the Complainant is a consumer under the Act. It is fact that the Complainant had procured a high end Waterjet Cutting Machine required under a contractual obligation of the Complainant. The question is whether the import of such high end machine is for commercial purpose or for earning livelihood. In the Complaint or in the argument made, it is nowhere mentioned for what purpose this machine was imported. This could be for the purpose of cutting stone, metal, fibre glass, glass, composites and many more. The Complainant is a Private Incorporated Company. However, its status has not been discussed in the Complaint or by the Authorized Representative. If it is an Incorporated Company registered with the ROC, it also has Directors on Board, etc. Lack of information in the Complaint about the Company as well as in the arguments of the Authorized Representative does not inspire confidence to show that the Company has not been engaged in some activity, which could be made out for earning of livelihood. The fact remains that the purpose was to meeting contractual obligations. This being a very vague submission and averment once again creates doubt in the mind.

6. At the outset, I would like to first quote certain Orders of the Hon’ble Supreme Court of