ABBEY CHEMICALS P LTD Vs. KANTIBHAI D PATEL

JUDGEMENT

(1.) THE Complainant-Company wanted to install some machineries for the manufacture of Dietho Dibenzoic Acid in District Vadodara (Gujarat State). The Complainant-Company made enquiries from the Respondent, who posed himself as the manufacturer of the machineries required by the Complainant-Company. Relying upon the assurance given by the Respondent as manufacturer, the Complainant booked the order for machineries. The Respondent had assured delivery of some of the machineries within 30 days and for the remaining within 60 days. The Complainant paid an advance of Rs. 4,25,000/- to the Respondent. The Respondent did not deliver the machineries in time and the delay in the supply caused a lot of inconvenience and loss to the Complainant-Company. The grievance of the Complainant is that though the Respondent had assured and took the order as a manufacturer of the required machines but instead of supplying the same as manufacturer, he purchased them from some other party and then resold them to the Complainant. Moreover, the machines manufactured for the Complainant were manufactured by a manufacturer who was neither skilled nor qualified to manufacture such machines and was also not a manufacturer approved by any competent authority in India. Further, the machines supplied by the Respondent after the prescribed period were neither complete nor were they as per the requirements of the Complainant. When the Complainant found some irregularities in the machines they asked a Chartered Engineer to give his comments on the machineries supplied by the Respondent. The report of the Chartered Engineer points out many defects in those machineries. The Complainant brought to the notice of the Respondent the defects in the machineries. The Respondent sent his mechanic-employees for effecting the repairs to the machineries but they could not repair them properly as there were lots of manufacturing defects which were beyond repairing capacity of those machines. The Complainant again brought to the notice of the Respondent, the defects in the machineries. Instead of replacing the machineries, the Respondent concocted some dispute. The Complainant, therefore, filed this complaint in which he has prayed that the Respondent be directed to replace the machineries. The Complainant had also claimed compensation exceeding over Rs. 1.00 crore on various grounds.

(2.) IT is necessary to give in detail the counter version of the Respondent. Suffice it to say that he has taken a formidable objection to the maintainability of this claim-petition. It has been pleaded that the Complainant-Company does not fall within the definition of 'consumer' as defined in Section 2(1)(d) of the Consumer Protection Act, 1986 (for short the Act), as they purchased the various products (machineries) such as reactors, process tanks, vacuum pumps, etc. to be used for commercial purpose. On merits it was pleaded that the machineries supplied were to the full satisfaction of the Complainant-Company which did not make full payment as agreed upon. In fact, one of the cheques issued by the Complainant for an amount of Rs. 3.00 lakhs had bounced in respect of which a notice under Section 138 of the Negotiable Instruments Act was issued to the Complainant on 18.12.1991. Another notice dated 12th March, 1992 was also issued to the Complainant to make payment of the amount of Rs. 10,22,457/- with interest @ 24% per annum. Thereafter, the Complainant is said to have obtained the alleged report of the Chartered Engineer and filed the present complaint.

(3.) AFTER hearing to parties, we are of the opinion that in the present case the machineries were purchased for commercial purpose. According to the allegation in the Complaint, the Complainant-Company was formed as Non-Resident of India unit, the share contribution of which was made in foreign exchange. The Company wanted to install the machineries for manufacturing of Dietho Dibenzoic Acid. The machinery purchased from the respondent was worth much more than Rs. 10.00 lakhs. Therefore, it is clear that the machineries were purchased for starting manufacturing activity on a large scale. 'Consumer' has been defined in Section 2(1)(d)(i) of the Act as follows :