G M VENKATESHWARA HATCHERIES LTD Vs. VANAPALLI SIMHACHALAM

JUDGEMENT

(1.) We find that the District Forum erred in allowing the complaint failing to notice that there was no consumer dispute involved. The complainant, who is the respondent in the appeal, approached the District Forum for refund of the amount paid by him to the opposite parties, who are the appellants before us, on the ground that they committed breach of contract as they did not supply the broiler chicks as agreed to by them. There is no dispute that the amount was received by the appellants for supply the chicks and that they did not supply the chicks. The question is whether the claim for refund of the amount for breach of contract of supply would lie before the Tribunals under the Consumer Protection Act, 1986 . The question is no longer res-integra because it is settled by two decisions of the National Commission which are on all fours with the facts of the present case General Co-operative Group Housing Society Ltd. V/s. J. K. Cement Works and Anr., 1991 1 CPJ 550, and Executive Engineer, Gosikhurd Dam Division V/s. Hariganga Cement Ltd., 1996 1 CPJ 299. In the earlier case the National Commission held as follows : "the contract was for sale of goods and in respect of any such contract a complaint can be filed under the Consumer Protection Act only if the goods supplied suffer from any defect. It was not a contract for the rendering of any service so as to attract the concept of deficiency in any service. The State Commission has rightly rejected the complaint though for a different reason. We are unable to uphold the argument advanced by the Counsel for the petitioner that the contract must be regarded as one for the rendering of a service and hence we should examine whether there was deficiency in the performance of such service. As already mentioned, it was a pure and simple contract for the supply of a specific quantity of cement for a settled price between the parties. No element of hiring of service for consideration was present in the said arrangement. The appeal accordingly fails and is dismissed. " In the case of Hariganga Cement Ltd. , the National Commission held that the complaint for refund of Rs.15,74,768/- paid towards the price of balance quantity of cement which was not supplied did not relate to any defect in the goods supplied but related "to a breach of contract of the sale of goods on the ground of failure of supply of the full quantity of goods agreed to be supplied" and that the claim was related to a civil liability for which the remedy lay elsewhere, and that it was not a consumer dispute as there were no allegations of defective goods or deficiency in service. Earlier in Suraj Steel, Hazaribagh V/s. R. P. Sharma,1991 2 CPJ 427, also the National Commission considering a complaint for failure on the part of the opposite party (appellant before the National Commission), to carry out its obligations under a contract for supply of iron rods at a stipulated rate to the complainant in pursuance of an agreement between the two parties, held that "the matter was purely in the realm of 'breach of contract' and it did not constitute a 'consumer dispute' as envisaged by the provisions of the Consumer Protection Act", and that the complainant should have been referred by the State Commission to pursue his ordinary remedy by way of instituting a civil suit and no relief should have been granted to him under the Act. The Haryana State Commission in Cantonment Board V/s. M/s. Air Tech Private Limited, 1992 3 CPJ 182 (Haryana State Commission), the Bihar State Commission in Principal, St. Robert s High School V/s. Sone Valley Portland Cement Company Ltd. and Ors.,1994 2 CPJ 88 (Bihar State Commission), the Karnataka State Commission in Executive Engineer, Z. P. E. Division V/s. South India Cement Ltd., 1995 3 CPJ 72 (Karnataka State Commission), and the Tamil Nadu State Commission in Vivek and Co. V/s. Ramesh Chand Luked,1996 2 CPJ 146 (Tamil Nadu State Commission), took the same view that no complaint would lie for non-delivery of goods as no defect in the goods or deficiency in service was involved in that, and that the remedy for that would lie in a Civil Court. In view of these decisions we have to set aside the order of the Visakhapatnam District Forum in C. D. No.477/1998 dated 19.6.1999 and dismiss the complaint.

(2.) The appeal is accordingly allowed. No costs.

(3.) The appellants shall be permitted to withdraw the sum of Rs.33,050/- deposited in this Commission on 27.9.1999 pursuant to our order in FA. IA. No.650/1999 dated 1.9.1999 by filing a cheque petition.