EBENEZER Vs. TOTICORIN PLASTIC PVT LTD

JUDGEMENT

(1.) MS . Sumola Khanna, argued this case very ably on behalf of the appellant. Equally able arguments were advanced before us by Mr. Lajpat Roy, Counsel appearing for the respondent. After hearing both sides, we have unhesitatingly come to the conclusion that the complainant in the present case is not a consumer and that the contrary conclusion recorded by the State Commission is erroneous and unsustainable. The transaction between the parties was a simple one of supply and installation of plastic strapping machinery in the factory of the complainant. The grievance with which the complainant approached the State Commission was that the machinery was defective and that on account of the defective functioning of the machinery all operations in the complainant's factory had to be closed down and the complainant has incurred very heavy loss by reason of the same. Though an objection was taken before the State Commission that the purchase of the machinery, in the present case, was for its being used in the production of plastic strapings on a large scale for the purpose of making profits, the State Commission, got over the said objection by stating that since there was a one year guarantee for the machinery in question as per the agreement entered into between the parties, it is a composite arrangement which was in part an arrangement for rendering service for consideration. We have gone through the relevant clause in the agreement which reads as follows:

(2.) ON a reading of the aforesaid clause, it is clear that the said clause evidences only an assurance to the purchaser that the goods sold are guaranteed to be free from any manufacturing defect or defective workmanship or material, such guarantee being for a period of 1 year. There was no undertaking at all to carry out any service of the machinery during the period of guarantee as had existed in the case decided by us in Viswa Jyoti Printers v. Mollins of India (1992) I CPJ (NC). The State Commission was in error in not noticing this vital distinction between the facts of the aforesaid case and those obtaining in the present case. In case where there is any undertaking to carry out any service during the period of guarantee then only the transaction can be regarded as a composite one, evidencing not merely one for supply and installation of machinery but also for rendering of service for consideration during the specified period In the present case, there is no agreement at all for rendering of any such service. It was only pure and simple guarantee against manufacturing defect or defective material. We accordingly set aside the finding entered into by the State Commission that the complainant before it was a consumer. We hold that the complainant company had purchased the machinery only for a commercial purpose and hence it is not entitled to seek relief under the provisions of the Consumer Protection Act. We, accordingly set aside the order passed by the State Commission, allow the appeal, and dismiss the complaint petition. The parties will bear their respective costs before this Commission as well as in the proceedings before the State Commission. We make it clear that the dismissal of the complaint petition will not in any way operate to the prejudice of the complainant in the matter of pursuing other remedies, if any, that the complainant may have in law.