State Consumer Disputes Redressal CommissionA To Z Service Prop. Ranjan Arya vs Ajax Fiory Engineering India Pvt Ltd & ... on 7 May, 2018CHHATTISGARH STATE
             CONSUMER DISPUTES REDRESSAL COMMISSION,
                       PANDRI, RAIPUR (C.G.)

                                           Complaint Case No.CC/2017/82
                                                Instituted on : 22.12.2017

A to Z Service,
Through Proprietor - Ranjan Arya,
S/o Shri Kamraj Nahak Arya,
Address : B-109, Imlichaper Chowk,
Near Hanuman Mandir, Kusmunda,
Tahsil - Katghora, District Korba (C.G.)            ...    Complainant.

    Vs.

1. Ajax Fiory Engineering (India) Private Limited,
Through : Manager, Ajax Fiori Engineering (India) P. Ltd.,
Address : 302/2 & 303/1, Behind Ahmad G Bhai Petrol Pump,
G.E. Road, Tatibandh,
Raipur (C.G.)

2. H.D.F.C. Bank,
Through : Branch Manager,
H.D.F.C. Bank, Branch T.P. Nagar, Korba,
Tahsil and District Korba (Chhattisgarh)            .... Opposite Parties

PRESENT: -

HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
HON'BLE SMT. RUCHI GOEL, MEMBER


COUNSEL FOR THE PARTIES:

Shri Ajay Kumar Rajwade, Advocate for the complainant.
Shri Rakesh Puri, Advocate for the O.P. No.1.
Smt. Nupur Pal, Advocate for the O.P. No.2.


                              ORDERDATED : 7/MAY/2018
       PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT.

        The complainant has filed this consumer complaint underSection 17of the Consumer Protection Act, 1986 against the OPs seeking following

reliefs :-// 2 //


      (1)      The OPs be directed to pay a sum of Rs.31,86,035/- (Rupees

               Thirty One Lakhs Eighty Six Thousand and Thirty Five) which

               is the total value of the vehicle because due to act of the OPs

               the complainant was deprived from the above amount for last

               two years i.e. 05.04.2015 till today.(2) The complainant purchased the Mixture Machine for livelihood

            of himself and his family members, but the OPs did not deliver

            the above Mixture Machine, therefore, he is deprived from the

            amount of livelihood Rs.10,00,000/- (Rupees Ten Lakhs) for about

            two yuears and the OPs be directed to pay the same to the

            complainant.(3) The OPs be directed be directed to pay a sum of Rs.1,00,000/-(Rupees One Lakh) towards compensation for mental, physical

            agony and financial loss.(4) The OPs be directed to pay Rs.25,000/- (Rupees Twenty Five

            Thousand) towards cost of litigation.Thus, the      OPs be directed to pay total compensation of

            Rs.43,11,035/- (Rupees Fourty Three Lakhs Eleven Thousand and

            Thirty Five) along with interest to the complainant.


      (5) To grant any other relief, which this Commission deems fit.2.    Briefly stated the facts of the complaint of the complainant are that

the   complainant is a reputed Civil Contractor. The complainant was in

need of Concrete Mixture Machine Vehicle, therefore, he had gone to O.P.
                                   // 3 //


No.2 where the the complainant       talked with the O.P. No.1 regarding

purchasing Mixture Machine and the complainant also told that O.P. No.2

that after purchasing the purchase the finance facility be given for for the

machine.    On being assurance given by the O.P. No.2 for         providing

financial help to purchase the machine, the O.P. No.2 called the Sales

Engineer of O.P. No.1 in the branch of the bank and obtained signatures of

the complainant in various papers. The Sales Engineer of the O.P. No.1

informed the complainant that the cost of the machine is Rs.36,25,000/-and

asked the complainant to deposit a sum of Rs.7,76,810/- as advance and

assured the complainant that the remaining amount would be financed. The

complainant told the OPs that he will consider the above instruction.

Thereafter, the OPs asked the complainant to deposit the margin money at

the earliest. Till date the complainant did not deposit the advance amount /

margin money even then the O.P. No.1 vide letter dated 05.03.2015 issued

receipt regarding    receiving margin money.      The O.P. No.2 without

obtaining consent of the complainant, provided financial assistance in the

name of the complainant for purchasing the Mixture Machine from O.P.

No.1. When the complainant came to know regarding the above letter of the

O.P. No.1, he contacted the OPs and informed that he does not want to

purchase the above machine and requested not to provide financial help. In

response thereto, the OPs told that complainant do not worry, it is primary

procedure, when you will give consent and deposit margine money, then

the finance of the vehicle would be done.    The OPs shown that the above

machine has been purchased with the financial help and the O.P. No.2 told

that complainant to pay a sum of Rs.1,04,964/- towards montly instalment
                                    // 4 //


of the Concrete Mixture Machine.     The complainant objected to the O.P.

No.2 and told that he has not purchased any Concrete Maxture Machine

with the financial help and till date delivery of the mixture machine has not

been given, therefore, in these circumstances it is not justify to make

averment regarding payment of the monthly instalment. The O.P. No.2

again told the complainat to    pay the      amount of first instalment, then

delivery of the   mixture machine would be given to the complainant

immediately. On the saying of the O.P. No.2, the complainant paid the first

instalment of the Miaxture Machine to the O.P. No.2 on 05.04.2015, but

inspite of making payment of instalment of five months, the OPs did not

give delivery of the Mixture Machine to the complainant. In the meantime,

the complainant contacted the OPs and requested to give delivery of the

Mixture Machine in response thereto the O.P. No.1 told the complainant that

the above machine has not come from the Company, whereas the insurance

of the above Mixture Machine was got done by the OPs without obtaining

consent of the complainant.    The complainant contacted the O.P. No.2 and

informed that the delivery of the mixture machine has not been given,

therefore, till the delivery of the mixture machine is given he will not make

payment of further instalment. The O.P. No.2 thretened the complainant

and told that you will have to make payment of instalment. We are not

concerned with the fact whether you have received the mxture machine or

not.   If you will not make payment of the instalment then your CIBIL

would be damaged and by declaring you default, the same will be published

in the newpaper due to which you will not received any tender for any work

and any bank will not provide you finance, due to which your business
                                     // 5 //


would be closed. Due to threat given by the O.P. No.2, the complainant

became afraid and in compulsion he was paying the instalment. Thus, till

05.01.2017 the OPs got deposited amount of 22 instalments Rs.23,09,209/-

and other charges Rs.8,76,827/- total Rs.31,86,035/- by making fraud and

pressuring on the complainan and till date the OPs did not give delivery of

the mixture machine to the complainant. The OPs committed deficiency in

service . The complainant made written complaint before Superintendent of

Police, Korba (C.G.) regarding the fraud done by the OPs with him. The

O.P. No.2 sent demand notice to the complainant on 28.01.2017 in response

to which the complainant sent notice on 16.03.2017 and thereafter the OPs

sent the reply of the notice dated 16.03.2017 through its advocate to the

complainant, but the complainant being not satisfied with the reply, filed

the instant complaint.3.    The O.P. No.1 filed its written statement and denied the allegations

made by the complainant agains it. The O.P. No.1 averred that the O.P.

No.1 never told that it will not provide financial help but the complainant

himself inspite of completing formalities regarding the finance, did not pay

the margin money.        The O.P.   No.1 did not   make any frau with the

complainat and it is not a matter relating to deficiency in service. The above

vehicle was not means of livelihood of the complainant and his family and

the complainant has not suffered any loss. The complainant has paid the

instalment voluntary and as per his wishes to the O.P. No.2, who is financer.

The complainant is not consumer underSection 2(1)(d)of the Consumer

Protection Act, 1986.    The complainant is a Civil Contractor, who is doing

business   of taking contracts of    construction work at large scale.    The
                                   // 6 //


machine purchased by the complainant is used at large scale for obtaining

profit. The complainant himself is doing business of contractor at a large

scale and he was having some other vehicle / machine which are similar to

the vehicle in question.   The complainant is having manyu commercial

vehicle/ machine, which are used for construction work. The complainant

has engaged various employees like . technician and driver through whom

the complainant is doing contract business at a large scale. The complainant

does not come in the category of      consumer. The complainant himself

contacted the O.P. No.1 for financial assistance and to purchase         one

Concrete Mixture Argo 4000 valuing Rs.38,06,250/-.         The complainant

completed all the formalities regarding finance with the O.P. No.2. H.D.F.C.

Bank vide letter dated 28.02.2015 gave intimation to the O.P. No.1 regarding

sanctioning loan to the complainant and on 06.03.2015 the fiannce amount

of Rs.30,15,800/- was paid to the complainant and the remaining amount

was required to be paid by the complainant towards margin money, directly

to the O.P. No.1. The complainant provided a cheque of Rs.7,76,810/- of

Axis Bank for margin money, but the complainant took back the above

cheque and assured that he will make payment through R.T.G.S., but till

date the complainant did not      make payment of margin money.          The

Concrete Mixture Machine Argo 4000 Serial No.A F 2703, Engine No.4 H

3306/1420408 is kept by the O.P. No.1 safely at present by the O.P. No.1.

The O.P. No.1 contacted the complainant personally and also through

movile and requested the complainant to pay the margine money and take

delivery of the machine, but the complainant was always avoiding to take

delivery of the machine. The O.P. No.1 did not refuse to give delivery of the
                                    // 7 //


machine Since beginning, the machine was available and the complainant

and O.P.No.2 were having knowledge regarding the same. With the mutual

consent, the above machine was got insured by the complainant and O.P., in

which there is no role of the O.P. No.1.     The advocate of the complainant,

Shri Ajay Kumar Rajwade sent notice to the O.P. No.1 on 16.03.2017 in which

false and baseless allegations were made against O.P. No.1. The reply of the

above notice was sent by the O.P. No.1 through its advocate on 04.05.2017.

The complainant was expected that he will deposit the remaining amount /

margine money and take delivery of the machine. Without making payment

of the margin money, the complainant cannot             receive the machine.

Whatever amount paid by the complainant, was paid             to the financer

H.D.F.C. Bank.    The complainant did not give any amount till date to the

complainant. After receiving the finance amount from the H.D.F.C. Bank,

the machine is parked safely. The complaint has not been filed by the

complainant within prescribed time, therefore, complaint is liable to be

dismissed. The complainant got finance from the O.P. No.2 in the month of

February - March, 2015, whereas the instant complaint has been filed in the

month of November, 2017.The complaint is liable to be dismissed.4.    The O.P. No.2 has filed its written statement and averred that the

O.P. No.2 is a financial institution which is providing finance facility to the

the customer, under the terms and conditions.         The complainant after

understanding the terms and conditions, obtained loan for          purchasing

Mixture Machine for commercial purpose. After making down payment to

O.P. No.1 for above Mixture Machine, the complainant appeared before the

O.P. No.2 and executed an agreement.       The payment of loan amount was
                                   // 8 //


made by the O.P. No.2 to the complainant as per terms and conditions of

the agreement. If the O.P. No.1 did not give delivery of the machine to the

complainant, then the entire responsibility is of O.P. No.1. The O.P. No.2

did not commit any deficiency in service or unfair trade practice.    On being

default made by the complainant in making payment of instalment, the O.P.

as per terms and condtions of the agreement sent notice according to theArbitration and Conciliation Act. The complainant did not appear before the

Arbitrator and the award was passed by the Arbitrator for recovery of the

amount.    The complainant has unnecessarily made the O.P. No.2 Banki as

party in the complaint. The complaint is not maintainable against the O.P.

No.2. The complainant was in need of Mixture Machine for his business

civil work for which he appeared before the O.P. N.2 Bank and requested for

providing loan. The complainant is a literate person and a businessman.

The O.P. No.2      informed the complainant regarding the terms and

conditions of the loan and thereafter understanding the              terms and

conditions regarding loan, he executed the agreement and signed therein,

according to which the loan was sanctioned to him. The complainant paid a

sum of Rs.7,76,810/- towards down payment to the O.P. No.1 thereafter the

complainant executed an agreement with the O.P. No.2 and obtained loan

and payment thereof made to the O.P. No.2 to the O.P. No.1. The O.P. No.1

issued Invoice. The complainant is a literate person and is a businessman.

The complainant himself appeared before the O.P. No.2 Bank and gave his

consent   for purchasing the vehicle and after providing documents and

after understanding the terms and conditions, he signed in the loan

agreement and provided the same to the Bank After making down payment
                                    // 9 //


for the machine to the .P. No.1, the O.P. No.2 sanctioned the loan and paid

the loan amount to O.P. No.1 The complainant has not come before this

Commission with clean hands. The O.P. No.2 did not commit any fraud

with the complainant. After consent of the complainant, the loan has been

given. The O.P. No.2 discharged its duty and provided loan facility to the

complainant.   If the delivery of the machine has not been given to the

complainant by the O.P. No.1, then all responsibility is of O.P. No.1.   The

O.P. No.2 has been unnecessarily impleased as party in the case. The O.P.

No.2 did not commit any deficiency in service or unfair trade practice. The

complaint is liable to be dismissed against O.P. No.2.5.    The complainant has filed documents. The documents are money

receipt dated 05.03.2015 issued by Ajax Fiori, Bank Statement,   letter dated

28.01.2017 sent by   Shri B. Gopa Kumar, Advocate to the complainant,

postal receipt, registered notice dated 16.03.2017 sent by Shri Ajay Kumar

Rajwade, Advocate to the OPs,6.    The O.P. No.1 has filed documents. Annexure R(1)-1 to 6 are photos

of Argo 4000 Machine stand at Raipur Depot, Annexure R(1)-7 is Letter by

HDFC Bank, Annexure R(1)-8 is reply of notice.7.    The O.P. No.2 has filed documents. Annexure 1 is Power of Attorney

dated 11.02.2016, Annexure 2 is Agreement for loan and guarantee,

Annexure 3 is money receipt dated 05.03.2015, Annexure 4 is invoice,

Annexure 5 is Bank Statement, Annexure 6 is letter dated 28.01.2017 sent by

Shri B. Gopa Kumar to the complainant, Annexure 7 is reply dated

10.04.2017 sent by Shri Subhankar Mandal, Advocate to Shri Ajay Kumar
                                   // 10 //


Rajwade, Annexure 8 is Award dated 25.08.2017 passed by Shri K.Gopal

Yadaw, Sole Arbitrator in Arbitration Case NO.53 of 2017.8.      Shri Ajay Kumar Rajwade, learned counsel appearing for the

complainant has argued that the complainant is a reputed Civil Contractor.

The complainant was in need of Concrete Mixture Machine Vehicle,

therefore, he contacted the O.P. No.1 for it. The O.P. No.2 had also agree to

give financial facility to the complainant for purchasing above machine. On

being assurance given by the O.P. No.2 for providing financial help to the

complainant for purchasing Concrete Mixture Machine, the O.P. No.2 called

the Sales Engineer of O.P. No.1 in the branch of the Bank and obtained

signatures of the complainant in various papers. The Sales Engineer of O.P.

No.1 informed to the complainant that the cost of the Concrete Mixture

Machine is Rs.36,25,000/- and asked the complainant to deposit a sum of

Rs.7,76,810/- as advance and he assured the complainant that remaining

amount would be financed. The complainant did not deposit the margin

money, even then the O.P. No.1 vide letter dated 05.03.2015 issued receipt

regarding receiving margin money.       The O.P. No.2 without obtaining

consent of the complainant, provided financial assistance in the name of the

complainant for purchasing the Concrete Mixture Machine from the O.P.

No.1.     When the complainant came to know regarding above letter of the

O.P. No.1,, he contacted the OPs and informed that he does not want to

purchase the above machine and requested not to provide financial help to

him. The OPs told the complainant do not worry, it is primary procedure,

when the complainant will give consent and deposit margin money, then

the     finance of the vehicle would be done.      The O.P. No.2 told the
                                  // 11 //


complainant to pay a sum of Rs.1,09,964/- towards monthly instalment of

the Concrete Mixture Machine. The complainant objected to the O.P. No.2

and told that he has not purchased any Concrete Mixture Machine with the

financial help and till the Concrete Mixture Machine was not delivered to

him, therefore, the complainant is not responsible to make payment of

monthly installments.. The Concrete Mixture Machine was not delivered by

the O.P. No.1 to the complainant, even the the O.P. No.2 Ban is demanding

money from the complainant and threatened the complainant for depositing

the amount of instalment and if the complainant will not make payment of

the instalment, then his name will be entered in CIBIL. The OPs have

committed fraud with the complainant. The complainant is entitled to get

the compensation, as prayed by him in the prayer clause of the complaint.

The complaint filed by the complainant be allowed.9.    Shri Rakesh Puri, learned counsel appearing for the O.P. No.1 has

argued that the complainant is not a consumer underSection 2(1)(d)of the

Consumer Protection Act, 1986. The complainant is a Civil Contractor, who

is doing business of taking contracts for construction work at large scale.

The Concrete     The Concrete Mixture Machine          purchased by the

complainant is used    at large scale for obtaining profit, therefore, the

Concrete Mixture Machine was purchased by the complainant for the his

business purpose.     The complainant is having         many commercial

vehicle/machine which are used for his contracts of construction work. The

complainant engaged varius employees        like Technicians and driver,

therefore, the complainant is not consumer and dispute between the parties

is not a consumer dispute. So far as merits of the case is concerned, the
                                    // 12 //


complainant himself contacted the O.P. No.1 for obtaining financial help to

purchase the Concrete Mixture Machin Argo 4000 valuing Rs.38,06,250/-.

The complainant completed all the formalities regarding the finane with the

O.P. No.2. The O.P. No.2 vide letter dated 28.02.2015 gave intimation to the

O.P. No.1 regarding sanctioning loan to the complainant and on 06.03.2015

the finance amount of Rs.30,15,800/- was paid to complainant and the

remaining amount was required to be paid by the complainant towards

margin money directly to the O.P. No.1, The complainant provided           a

cheque of Rs.7,76,810/- of Axis Bank for margin money, but the complainant

took back the same and assured that he will make payment through RTGS,

but till date the complainant did not make payment of margin money to the

O.P. No. 1. The Concrete Mixture Machine is safely kept in the possession

of the O.P. No.1. The O.P. No.1 requested the complainant several times for

depositing the margin money but the complainant did not deposit the

margin money. The instant complaint is barred by time, and is liable to be

dismissed against the O.P. No.1.10.   Smt. Nupur Pal, learned counsel appearing for the O.P. No.2 has

argued that the complainant after understanding the terms and conditions

of the agreement, obtained loan for purchasing Concrete Mixture Machine.

The complainant appeared before the O.P. No.2 and executed an agreement.

The payment of loan amount was made by the O.P. No.2 to the complainant

as per terms and conditions of the agreement. The O.P. No.2 discharged its

duty to provide loan facility. The O.P. No.2 did not commit any deficiency

in service and unfair trade practice. The complaint is liable to be dismissed

against O.P. No.2.// 13 //11.   We have heard learned counsels appearing for both the parties and

have also perused the documents filed by the parties in the complaint case.12.   Now we shall examined whether the complaint of the complainant is

time barred ?13.   According to the O.P. No.1,      the complaint of the complainant is

barred by limitation. The complainant pleaded that the O.P. No.1 sent a

letter dated 05.03.2015 to him in which it is mentioned that margine money

was received by the O.P. No.1. The complainant also pleaded that the O.P.

No.2 without obtaining consent of the complainant provided financial

assistance in th name of complainant for purchasing the Concrete Mixture

Machine. The complainant further pleaded that the complainant deposited

the value of the Machine, even then the Concrete Mixture Machine was not

delivered to him.14.    According to the complainant,      he     deposited 22nd instalment on

05.01.2017 even then the mixture machine was not delivered to him. The

O.P. No.2 filed Statement of account for the period from 20.02.2015 to

02.02.2018   Looking to the    Statement of Account, it appears that      the

complainant paid the installments upto 06.09.2017 and last instalment was

paid on 05.01.2018, which was returned, therefore, the cause of action was

accrued when the cheque was bounced. The complainant filed the instant

complaint on 22.12.2017. Even after filing this complaint, the complainant

deposited installments with the O.P. No.2, therefore, the complaint is not

barred by limitation. Hence the objection raised by the O.P. No.1 that the

complaint is barred by time is not acceptable.// 14 //15.    Now we shall examine whether the complainant is a consumer ?16.    In the title of the complaint, the complainant mentioned that "A to Z

Service, Through Proprietor - Ranjan Arya, S/o Shri Kamraj Nahak Arya,

Address B-109, Imlichhapar Chowk, Near Hanuman Mandir, Kusmunda,

Tahsil Katghora, District Korba (Chhattisgarh)." The complainant has

pleaded that he is a reputed CivilContractor and the complainant was in

need of Concrete Mixture Machine vehicle. The above fact are also noted in

the legal notice sent by the complainant to the OPs. The complainant has

filed copy of Money Receipt dated 05.03.2015 issued by Ajax Fiori to the

complainant in which it is mentioned that "WE acknowledge with thanks

receipt followed against the order for Ajax Fiori SLMCM Argo 4000 Concrete

Mixture....."17.    Looking to the above documents and pleadings of the complainant, it

appears that the complainant is a Government Contractor and he is taking

contracts work from the Government           and he purchased the Concrete

Mixture Machine for his business purpose.18.    Definition of 'consumer' underSection 2(1)(d)of the Consumer

Protection Act, 1986, is as under:-"(d) "consumer" means any person who,-(i) buys any goods for a consideration which has been paid or
           promised or partly paid and partly promised, or under any system
           of deferred payment and includes any user of such goods other
           than the person who buys such goods for consideration paid or
           promised or partly paid or partly promised, or under any system
           of deferred payment, when such use is made with the approval of
                                        // 15 //


             such person, but does not include a person who obtains such goods
             for resale or for any commercial purpose; or(ii) [hires or avails of] any services for a consideration which has
             been paid or promised or partly paid and partly promised, or
             under any system of deferred payment and includes any
             beneficiary of such services other than the person who [hires or
             avails of] the services for consideration paid or promised, or partly
             paid and partly promised, or under any system of deferred
             payment, when such services are availed of with the approval of
             the first mentioned person [but does not include a person who
             avails of such services for any commercial purpose];"Explanation:- For the purposes of this clause, "commercial
             purpose" does not include use by a person of goods bought and
             used by him and services availed by him exclusively for the
             purposes of earning his livelihood by means of self-employment;"19.       Being a Contractor, certainly the Complainant takes contracts from

various Government and other concerns for earning profit, therefore, it can

safely be presumed that the complainant has engaged labours for doing

contract works.20        InRamesh Kumar Rohila Vs. Gseven Computer Business (P) Ltd &
Anr. II(2017) CPJ 358 (NC), Hon'ble National Commission has observed
thus :-"15.    The state Commission correctly concluded
                that reading of the 'explanation' makes it clear that
                benefit of explanation     is only   available to the
                person who avails the services exclusively for the
                purpose of earning his livelihood by way of self-
                employment. The onus of proving that the appellant
                / complainant is covered by the explanation is upon
                him". Moreover, the Petitioner himself has admitted
                in Para 1 of his Complaint filed before the District
                                    // 16 //


            Forum    that   he   is owner or   proprietor of the
            firm, namely, M/s Carewell Pipes having office at
            201-202, 2nd floor, Bhanot Bhavan, Commercial
            Complex, Azadpur, Delhi. It is also admitted fact
            that about 10-15 employees are working in firm of
            the Petitioner / Complainant."21.   In Raja Vishindas Ramchandani Vs. Tata Motors Ltd. II (2017) CPJ
523 (NC); Hon'ble National Commission has observed thus :-"3.     Both the Fora     below    have returned a
            concurrent finding of fact that the petitioner /
            complainant had defaulted in payment of the EMIs
            and there was no deficiency on the part of the
            respondent in rendering services to him. That apart,
            the vehicle in question being a commercial passenger
            vehicle, the complainant/ petitioner would have
            purchased it for a commercial purpose. There is no
            averment in the complaint that the vehicle was
            purchased by the complainant for the purpose of
            earning his livelihood by way of self-employement.
            In any case, the petitioner / complainant was
            working as a bank employee at the relevant time. It
            is, therefore, obvious that vehicle in question was
            purchased by him for a commercial purpose. For
            this reason also, the consumer forum would have no
            jurisdiction to entertain the complaint."22.     In Poonam Chambers "B" Wing Commercial Premises Cooperative

Society Limited Vs. M/s Aluplex India Private Limited and Anr. 2017 (4)

CPR 889, Hon'ble National Commission has observed thus :-// 17 //


            "Consumer Protection Act, 1986-Section 2(1)(d)-
            Complaint - Maintainability - Building before its
            demolition     consisted of commercial units -
            Complaint society was formed much after building
            had been demolished and consists of buyers of
            commercial unit in the building - Work awarded by
            complainant to respondent envisaged construction
            related work in a bulding comprising of commercial
            units - Subject matter of contract between parties
            was a proposed commercial building - A person
            hiring or availing services of a contractor / builder
            for contruction of    a commercial building would
            not be a consumer since construction of building
            would be for a commercial purpose - Hiring or
            availing the services of a builder / contractor for
            construction related work in such a building would
            ipso-facto become a commercial purpose - Owners /
            occupiers of commercial units cannot be allowed to
            circumvent provisions ofConsumer Protection Actand confer a jurisdiction which lawfully does not
            vest in Consumer Forum. Order passed by State
            Commisison does not call for interference - Appeal
            dismissed."23.   In Ranbaxy Laboratories Ltd. Smt. Mamta Sarkar and Others, 1986-

99 Consumer 4937 (NS), Hon'ble National Commission has observed thus :-"(B) Consumer - commercial purpose - the onus
            was entirely on the complainant to make out that
            she is a 'consumer' as defined in the Act and since
            the complaint in this case was filed in July, 1994
            long after coming into force of the Amendment
            introduced in theConsumer Protection Actby theAmending Actof 1993 (Act 50 of 1993), the
            complainant was under a duty to establish by
                        // 18 //


acceptable evidence that the article in question was
purchased by her for being used by herself for the
purpose of earning her livelihood by means of self-employment. The diagnostic kit had been purchased
for use in a clinical laboratory owned by the
complainant.    There is absolutely no material on
record to show that the complainant is a technically
qualified person competent to perform any work in
the laboratory by making use of the kit. No attempt
has been made by the complainant to prove that the
goods purchased are to be used by herself - it is also
to be established by the complainant that the goods
purchased are used exclusively for the purpose of
earning her livelihood by means of self-employment.
In this case, there is no evidence at all on record to
prove that Santimoyee Clinical Laboratory         was
being conducted by the complainant by way of self-employment as a means of earning her livelihood -the fact that the complainant sought to recover a
sum of Rs.18,75,000/- from the opposite party
company by way of compensation for the supply of
the kit which was allegedly defective, whose cost
was only about Rs.2,000/- assumes significance as it
goes to indicate that the business carried on in the
clinical laboratory must have been of a considerable
magnitude and could not have been a small venture
started by the complainant for employing herself for
earning her livelihood - the purchase of the kit made
by the complainant was for a "commercial purpose"and the complainant cannot be therefore regarded as
a "consumer" entitled to maintain a complaint
under the Act."// 19 //24.    In Amanchi Rajendra Prasad & Ors. v. Dabur Ayurvet Ltd. (Aqua),

II (2009) CPJ 388 (NC); Hon'ble National Commission has observed thus :-"9.    We do not want to reiterate the detailed
              reasons given by the State Commission while
              allowing the appeal of M/s. Dabur Ayurvet Ltd.
              Suffice to say that we concur fully with the findings
              of the State Commission, that these are not
              consumer disputes.      These are pure and simple
              commercial transactions wherein cheques issued by
              the purchaser had bounced. As a counter-blast the
              purchaser     and his     close relatives have filed
              consumer complaints to camouflage the commercial
              transactions. Therefore, these revision petitions are
              dismissed."25.    In SVM Engineers Pvt. Ltd. Vs. Royal Palms (I) Pvt. Ltd. & Ors. I

(2015) CPJ 392 (NC), Hon'ble National Commission has observed that "inter

se dispute   between two      business persons - Sservice was to be provided by

complainant itself -Flat was to be given as 'barter'for services rendered by the

complainant - The complainant not consumer."26.InAlpolic Industries Vs. Tiger Steel Engineering (I) Pvt. Ltd. III(2011) CPJ 369, Delhi State Consumer Disputes Redressal Commission, New
Delhi, has observed thus :-"Consumer Protection Act, 1986-Sections
              2(1)(d),2 (1)(g),14 (1)(d),17- Construction -
              Erecting a shed - Commercial purpose -Consumer - Design changed without approval- More money taken         - Return of amount -Contention,     complainant     is   a   commercial
              company and shed being erected for business
                                     // 20 //


              purpose of company - Accepted - It is not a
              deal of individual for earning livelihood and
              therefore to be classified as commercial deal."27.    In the instant case, the      complainant nowhere pleaded that the

Concrete Mixture Machine was purchased by the complainant for his

livelihood by means of self employment. Looking to the pledings and facts

of the case, it appears       that the complainant is a Contractor and takes

contracts from     Government Department and other private concerns.       It

shows that the complainant is involved in commercial activities for earning

profit.. The Concrete Mixture Machine was purchased by the complainant

for commercial purpose, therefore, the complainant is not a consumer underSection 2(1)(d)of the Consumer Protection Act, 1986 and the dispute between

the parties is not a consumer dispute.27.    The complainant is a Contractor and he purchased the Concrete

Mixture Machine for commercial purpose. The complainant did not plead

that he purchased the Concrete Mxiture Machine for his livelihood by means

of self employment, therefore, the complainant is not consumer and

complaint is not maintainable before this Commission and complaint is liable

to be dismissed.28.    Hence the complaint filed by the complainant is dismissed. Parties

shall bear their own costs.(Justice R.S. Sharma)     (D.K. Poddar)        (Narendra Gupta) (Smt. Ruchi Goel)
     President                Member                Member          Member
   07/05/2018               07/05/2018          07/05/2018         07 /05/2018