TAMIL NADU ELECTRICITY BOARD Vs. NOIDA CHEMICALS

JUDGEMENT

(1.) (Prayer: This appeal is filed under Section 96 of CPC against the Judgment and Decree dated 16.4.2001 made in O.S.No.271 of 1999 on the file of Sub Court, Mettur.) The appellant/plaintiff has preferred this appeal before this Court as against the Judgment and decree dated 16.4.2001 passed by the learned Subordinate Judge, Mettur in O.S.No.271 of 1999. 2.The short summation of facts of the case are as follows: The appellant/plaintiff had placed purchase order dated 29.1.1992 for supply of Hydrate 80% (2000 Kgs) at Rs.107 per Kg amounting to Rs.2,14,000/- with the respondent/defendant. The respondent/defendant sent sample along with test certificate on 12.2.1992. As the sample was as per the specification, the appellant/plaintiff sent approval for bulk supply through phonogram dated 20.2.1992. The respondent/defendant supplied 2,000 kgs of Hydrazine Hydrate on 27.6.1992 through A.R.C. Transport. The appellant/plaintiff made payment through Bank for a sum of Rs.2,03,300/- on 15.6.1992 towards 95% value of the order and the balance 5% amount was to be paid within thirty days, if the goods were in condition. The appellant/plaintiff Board tested the bulk supply by means of taking samples on 10.7.1992 and found only 31.01% purity instead of 80% under the purchase order. Therefore, there was a short fall of 42 Kg of materials and the plaintiff rejected the materials in entirety. The defects were informed to the respondent/defendant through the telex message on 16.7.1992. Further the shortage was informed by a letter dated 6.7.1992 to the respondent/defendant. Despite, several reminders, the respondent/ defendant failed to rectify the defects . In lieu of deficiency in service by the respondent/defendant, the appellant/plaintiff had incurred a loss for non utilising the said materials and loss occurred through other mode of purchase from outsiders. Reminders dated 21.7.1992, 31.7.1992, 3.9.1992, 22.9.1992 and 28.9.1992 were issued by the appellant/plaintiff. The respondent/defendant furnished a reply on 28.7.1992. The appellant/plaintiff issued a detailed reply for replacement on 3.9.1992. The respondent/defendant was not prepared either to replace the aforesaid defective items or to return the advance amount. The appellant/plaintiff issued a advocate's notice on 28.3.1993 to the respondent/defendant calling upon it, to repay the advance amount which was paid by the appellant/plaintiff with 22% interest per annum. Since the respondent/defendant had committed an act of deficiency of service, the appellant/plaintiff filed a complaint before the Salem District Consumer Dispute Redressal Forum in C.O.P.No.359 of 1994 complaining about the deficiency of service. The Consumer Forum passed an order on 2.9.1006 holding that the complaint was not maintainable in view of the fact that the appellant/plaintiff was not to be considered as a 'consumer' under the Consumer Protection Act 1986. Inasmuch as the appellant/ Plaintiff lodged a complaint before the Consumer Dispute Redressal Forum, Salem, the present suit has been filed in time and that the suit is not defective as per Section 14 of the Limitation Act. Hence the appellant/plaintiff filed a suit praying for a Judgment and Decree against the respondent/defendant for a sum of Rs.4.10.567/- with subsequent interest at the rate of 12% p.a with costs. 3.The respondent/defendant filed a written statement inter alia taking the pleas that the appellant/plaintiff did not produce any document to show that the defect in purity or the shortage in weight and no documents were filed by the appellant/plaintiff to show that it had incurred a loss for non using the materials and loss occurred through alternative purchases from outsiders and in view of the detailed letters dated 28.7.1992 and 21.12.1992, there was no necessity for issuance of separate reply notice for the legal notice and the contents of the letters dated 28.7.1992 and 21.12.1992 were valid and that there was no breach of any of the terms of the contract and that the Consumer Forum has rightly held that the appellant/plaintiff was not a consumer as per Section 2(d)(i) of the Consumer Protection Act, 1986 and that the claim is barred by Limitation and further that the appellant/plaintiff was not entitled to avail the benefit of Section 14 of the Act and a Consumer Dispute Redressal Forum especially under the Consumer Protection Act 1986 was not a Civil Court as per the decision reported in Union of India-v- Nilesh Agarwal, Jaipur (1991)CPR 348(350) (National Commission) and the present suit was only a continuation of dismissal of C.O.P.No.359 of 1994 etc. and there was no cause of action for filing of the suit and the calculation of interest was wrong and moreover the appellant/plaintiff took delivery of the goods on 27.6.1992 and the samples were taken on 10.7.1992 and during the intervening period of 13 days, there was possibility of unauthorised tampering with the packaging by the appellant/plaintiff's Board men which could not ruled out and therefore prayed for dismissal of the suit. 4. On the basis of the aforesaid pleadings, the trial Court framed six issues. On the side of the Appellant/plaintiff, P.W.1 was examined and Exs P1 to P14 were marked and on the side of the respondent/defendant, no witness was examined but documents Exs D1 to D5 were marked. 5. On an appreciation of the oral and documentary evidence and taking note of the available material evidence on record, the trial Court has dismissed the suit without costs holding that the same was not maintainable and hit by the period of limitation. 6. Though respondent/defendant has been served, none appeared before this Court today on its behalf. 7. Dissatisfied with the Judgment and decree made in O.S.No.271 of 1999 passed by the trial Court viz., the Subordinate Court, Mettur, the appellant/plaintiff has preferred this appeal. 8.The points that arise for determination are (i) Whether the appellant/plaintiff is entitled to claim the suit amount of Rs.4,10,567/- with subsequent interest at the rate of 12% with costs from the respondent/defendant" (ii)Whether the appellant/plaintiff is a Consumer" coming within the purview of Consumer Protection Act 1986" (iii)Whether the appellant/plaintiff is entitled to avail benefits under Section 14 of Limitation Act" 9. Findings: Point Nos.1 to 3: The learned counsel appearing for the appellant/plaintiff urges before this Court that the trial Court has misdirected itself while considering the attitude of the appellant/plaintiff Board in prosecuting the proceedings before the Consumer Forum and that the trial Court should have come to the conclusion that the time taken by the appellant/plaintiff in prosecuting the proceedings before the Consumer Forum will have to be excluded in computing the period of limitation and moreover the appellant/plaintiff was having sufficient grounds to invoke the benefits of Article 14 of the Limitation Act and that the Consumer Form dismisses the issue on the basis that the appellant/plaintiff was not a "consumer" and it had not dealt with the merits of the matters in issue between the parties and these facts have not been taken a note of by the trial Court in a proper perspective and therefore prays for allowing the appeal in furtherance of substantial cause of justice. 10. The appellant/plaintiff before the trial Court has filed the suit on 4.10.1996. As per Article 14 of the Limitation Act 'for price of goods sold and delivered, where no fixed period of credit is agreed upon is three years from the date of the delivery of the goods'. In the instant case on hand, the appellant/plaintiff's specific case is that it had placed purchase order dated 29.1.1992 towards supply of Hydrozine Hydrate 80%(2000 Kgs)at Rs. 107 per Kg amounting to Rs.2,14,000/- with the respondent/defendant and that since the sample was as per specification, it gave approval for bulk supply through phonogram dated 20.2.1992 and further that the respondent/defendant supplied 2000Kgs of Hydrazine Hydrate on 27.6.1992 through A.R.C. Transport and payment of Rs.2,03,300/-being 95% value order placed by the appellant was made through Bank on 15.6.1992 and the balance of 5% was to be paid within thirty days ,if the goods were in good condition. 11. The stand taken by the respondent/defendant before the trial Court is that the appellant/plaintiff is not a 'consumer' coming with the definition of Consumer Protection Act 1986 and that it cannot avail the benefits of Section 14 of the Limitation Act and further the Salem District Consumer Disputes Redressal Forum, has held that the appellant is not a consumer and that the suit is a barred one. 12. At this juncture, it is useful to advert to Ex P14 order dated 2.9.1996 of the Salem District Consumer Dispute Redressal Forum wherein the appellant/Board has figured as a Complainant and the respondent/defendant has been shown as an opposite party and in the said order of the Forum, it is among other things held as follows: "It is admitted that the complainant cannot come within the explanation of Section 2(d)(i) of Consumer Protection Act . It cannot be stated that the said goods purchased by the complainant exclusive for the purpose of earning his livelihood by self employment. So, the complainant cannot take shelter under Explanation clause. The following decisions reported in 1995 II) CPJ page -1 Supreme Court of India-Laxmi Engineering Works Versus P.S.G. Industrial Institute, 1991 (III) CPR page 389-National Consumer Disputes Redressal Commission - M/s Lohia Starlinger Ltd -versus- Zenith Computers Ltd., 1995(1)CPJ Page 51-National Consumer Disputes Redressal Commission-Raba Contel Pvt.Ltd versus Printek and others,1994 (1) CPJ 208 - National Consumer Disputes Redressal Commission- Ebenezer Versus M/s Tuticorin Plastic Pvt.Ltd.,1994(1) CPJ page-78 National Commission-Eagle Ultra Marine Industries versus Paramont Pollution Control (P)Ltd., support the case of the opposite party. Having regard to the nature and character of the goods purchased and the nature of use the said goods were put into, we find that the said goods were purchased for commercial purpose. In these circumstances, we find that the complainant is not a consumer as defined in Section 2(d)(i) of Consumer Protection Act. In these circumstances, we find that the complainant cannot seek any remedy from this Forum under Consumer Protection Act. In these circumstances, there is no necessity to consider the other objections raised by the opposite party. So, we find that the complainant is not a consumer under Consumer Protection Act and that he is not entitled to any relief in this complaint from this Forum under Consumer Protection Act. Point is answered in the above said manner." Besides this, the complaint projected by the appellant/plaintiff before the Consumer Forum has also involved intricate complicated highly mixed question of fact and law, which requires lengthy trial, examination of witnesses and documents to be appreciated. As a matter of fact, the order dated 2.9.1996 Ex P14 passed by the Salem District Consumer Disputes Redressal Forum has become final and it binds the parties. Moreover, initially, the appellant/plaintiff ought to have filed the present suit within three years from the date of delivery of goods as per Article 14 of the Limitation Act. 13. As far as the present case is concerned, the appellant/plaintiff has placed the purchase order dated 29.1.1992 towards supply of Hydrazine Hydrate 80%(2000Kgs) at Rs.107/- per Kg amounting Rs.2,14,000/- with the respondent/defendant and the appellant/plaintiff has also admitted in the plaint that the respondent/defendant supplied 2000Kgs of Hydrazine Hydrate on 27.6.1992 through ARC Transport. It is also not in dispute that 95% of the value of the order amounting to Rs.2,03,300/- was made through Bank on 15.6.1992. This Court is informed by the learned counsel for the appellant/plaintiff that the appellant/plaintiff has not paid the remaining 5% of balance amount. 14. Inasmuch as the respondent/defendant supplied 2000Kgs of Hydrazine Hydrate on 27.6.1992, the suit should have been filed by the appellant/plaintiff before a Civil Court within three years ie., 26.6.1995. But the appellant/plaintiff has not filed the suit on 26.6.1995. Instead the appellant/plaintiff filed the suit only on 4.10.1996 before the trial Court. 15. It is to be borne in mind that Section 14 of the Limitation Act provides for Extension of Limitation. A party can take recourse to the exclusion period spent in an infructuous proceedings when he impresses upon the Court that he has prosecuted the suit with due diligence. Significantly, it is to be noted that Section 14 of the Limitation Act speaks of . . . . . . . . in a Court of first instance or by appeal or revision etc. No wonder the Consumer Redressal Forum is not a Court and that the appellant/plaintiff is not a consumer coming within the scope and ambit of Section 2(d)(i) of the Consumer Protection Act. Inasmuch as the appellant/plaintiff has initiated the complaint in COP NO.359 of 1994 against the respondent/defendant before the Salem District Consumer Disputes Redressal Forum and because of the fact, Section 14 of the Limitation Act enjoins specifically about the Court of first instance and taking note of the fact that Consumer Forum is not a Court, this Court is of the considered view that the word" Court" under Section 14 of the Limitation Act will not apply squarely to the appellant/plaintiff and as such the appellant/plaintiff cannot avail benefits provided under the Section. To put it differently, the appellant/plaintiff has initiated proceedings against the respondent/defendant before the Salem District Consumer Disputes Redressal Forum. Salem, on a wrong premise and the initiation of the said proceeding cannot by any stretch of imagination be described as appellant/plaintiff bonafide litigating for its right in a Court of justice. Section 14 of the Limitation Act contains a general principle based on justice, equity and good conscience. Added further, it is true that Section 14 ought to be liberally construed. But inasmuch as the appellant/plaintiff is not a consumer coming within the purview of the definition as per Section 2(d)(i) of the Consumer Protection Act 1986 and since it has prosecuted the proceedings before the said Consumer Forum which is not admittedly a Court of Justice, even though it may have the trapping of a Civil Court and further since the suit has been filed only on 4.10.1996 and not before 26.6.1995 viz before the expiry of three years from 27.6.1992 being the date for supply of Hydrazine Hydrate 80%(2000Kgs) etc, this Court comes to the conclusion that the appellant/plaintiff is not entitled to the claim of Rs.4,10,567/- with subsequent interest at the rate of 12% per annum from the respondent/defendant and further that it cannot avail benefits under Section 14 of the Limitation Act and moreover, the suit filed by the appellant/plaintiff is clearly barred by limitation and that the points 1 to 3 are answered against the appellant/plaintiff accordingly. 16. In fine, in the light of the detailed discussions narrated supra, the appeal fails and the same is dismissed. Consequently, the Judgment and decree passed by the learned Subordinate Judge, Mettur are affirmed for the reasons assigned by this Court in this appeal. Considering the facts and circumstances of the case, there shall be no order as to costs.