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M/s. MCS Computer Services (P) Ltd. v/s M/s. Allena Auto Industries Pvt. Ltd.

    REVISION PETITION NO. 3517 of 2007
    Decided On, 14 March 2012
    At, National Consumer Disputes Redressal Commission NCDRC
    By, THE HONOURABLE MR. JUSTICE ASHOK BHAN
    By, PRESIDENT & THE HONOURABLE MRS. VINEETA RAI
    By, MEMBER
    For the Petitioner : Rajiv K. Nanda, Advocate. For the Respondent : Rajesh Luthra, Advocate.


Judgment Text
ASHOK BHAN, J., PRESIDENT

Petitioner which was the Opposite Party before the District Forum has filed this Revision Petition against the order dated 13.08.07 passed by the State Consumer Disputes Redressal Commission, Delhi (in short, ‘the State Commission’) in appeal No. 632/2003 whereby the State Commission reversing the order of the District Forum, has directed the Petitioner to refund Rs.65,000/- to the Respondent within a period of one month along with Rs.5,000/- towards costs.

FACTS

In response to the quotation given by the Petitioner for supply of computers and accessories, Respondent/Complainant, a private limited company placed an order on the Petitioner on 21.4.97 to supply computer, printer and its accessories vide purchase order No. APL/DE/11/01/97-98. As per averments made in the complaint, Respondent made advance payment of Rs.20,000/- by cheque No.547913 dated 7.8.97 and Rs.45,000/- by cheque No.548525 dated 18.09.97 to the Petitioner. Respondent was assured that the goods as ordered would be delivered shortly and the entire balance payment would be made on delivery of the goods. It was alleged that the Petitioner failed to deliver the goods ordered despite receiving the advance payment and repeated visits of the representatives of the Respondent Company. That Respondent sent a legal notice on 8.12.99 in response to which Petitioner replied that the printer as well as computer were supplied against the payments of Rs.20,000/- and Rs.45,000/- which were duly received by the Respondent against invoice Nos. 168 & 271 respectively. According to the Respondent, he never received the printer and the computer. Being aggrieved, Respondent filed the complaint before the District Forum seeking refund of Rs.65,000/- paid by it along with compensation of Rs.1 lakh.

Petitioner, on being served, entered appearance and filed its written statement taking the preliminary objections that the complaint was barred by limitation and the complainant was not a 'Consumer' as the goods were purchased for ‘commercial purposes’. That as per quotation and order placed, 100% payment was to be made against the order and delivery was to be made within three days after receipt of entire payment. That since the entire consideration was not paid, the computer and printer were not supplied. That no advance was made and two cheques of Rs.20,000/- and Rs.45,000/- were received towards the entire payment of printer and computer respectively which were supplies and received by the Respondent against the receipts.

District Forum dismissed the complaint on the grounds of limitation as well as on merits. It was held that as per section 24 (A) of the Consumer Protection Act, 1986 (for short, the Act), a complaint could be filed within two years from the date of arising of cause of action. That the cheques were issued by the Respondent on 7.8.97 and 18.09.97 respectively and that the complaint was filed on 11.4.01, i.e. much after expiry of two years. On merits, District Forum held that the Respondent being private limited company, the computer and printer were purchased for use of ‘commercial purpose’ which does not fall within the purview of the Act and the complaint filed by the Petitioner was not maintainable. That the Respondent was not a ‘consumer’ within Section 2(1) (d) of the Act.

Respondent, being aggrieved, filed the appeal before the State Commission which has been allowed by the impugned order.

State Commission came to the conclusion that the computer and printer were purchased by the Respondent Company for personal use and not for further resale to a third party to earn profit and, therefore, the Complaint was maintainable. On the point of limitation, it was held that the cause of action was continuous and if the limitation is counted from the date of issuance of legal notice, i.e, 8.12.99, the complaint filed on 11.4.01 was well within the prescribed period of limitation.

Learned Counsel for the Petitioner contends that the finding recorded by the State Commission that the computer and printer were purchased by the Respondent for personal use and earning livelihood by means of self-employment is not sustainable as the Respondent Company is involved in profit making activities. He further submits that the complaint was hopelessly time-barred as the order for purchase of goods was placed on 21.4.97 and the complaint was filed on 11.04.01 after expiry of four years from arising cause of action. That the goods were supplied against the payment and the same were duly received by the Respondent against receipt. As against this, Learned Counsel for the Respondent supports the order of the State Commission.

We have heard the learned counsel for the parties at length.

It is not disputed before us that the order for purchase of computer and printer was placed by the Respondent on the Petitioner on 21.4.97. Two cheques of Rs.20,000/- and Rs.45,000/- were issued on 7.08.97 and 18.09.97 respectively. Admittedly, the complaint was filed on 11.04.01 much beyond the period of limitation as provided under the Act. As per Section 24 (A) of the Act, a complaint can be filed within two years from the arising of cause of action. Section 24 (A) reads as under:-

24A. Limitation period. - (l) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.

(2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (l), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:

Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.

We are of the view that in the present case, cause of action had arisen from the date of placing of order for purchase of computer and printer. The complaint could be filed by the Respondent within two years of issuance of the cheque. Since the complaint was filed on 11.04.01 the same was barred by limitation. The finding recorded by the State Commission that the cause of action was continuous cannot be sustained as issuance of cheque does not extent the period of limitation. Apart from this, even the legal notice was issued after two years of the placing of the order and issuance of cheque. The complaint was clearly barred by time.

Even otherwise, we are of the considered opinion that the Complainant is not a 'Consumer' as defined in section 2(1)(d) of the Act which reads 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 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 purposes;

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;

Respondent is a private limited company. Finding recorded by the State Commission that it had purchased the goods for personal use cannot be sustained as the same were purchased by the Respondent Company for use in commercial activities which are excluded from the purview of the Act. Section 2(1) (d) provides that the ‘consumer’ is a person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised or avails of any services for a consideration which has been paid or promised or partly paid and partly promised but it does not include a person who avails of services for any commercial purposes. Explanation to the Section creates an exception and states that clause 'commercial purpose' does not include use by a person of goods brought and used by him and services available by him exclusively for the purposes of earning his livelihood by means of self- employment. Respondent is a private limited company and the commercial activities carried out by it cannot be for its earning livelihood

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by means of self-employment. Company has to act through somebody and the question of livelihood and self-employment under these circumstances would not arise. Company has judicious identity and it can be sued through a person. Company does the commercial activities for its shareholders. Question of earning livelihood by means of self-employment would not arise. For the reasons stated above, Revision Petition is accepted, order of the State Commission is set aside and that of the District Forum is restored and the complaint is ordered to be dismissed. However, Complainant is put at liberty to seek redressal of its grievance before the appropriate court/forum in accordance with the law. It would be open to it to file an application before the court u/s 14 (A) of the Limitation Act for excluding the period spent before the Consumer Fora for the purpose of computation of limitation in terms of the observations made by the apex court in the case of LaxmiEngineering Works Vs. P.S.G. Industrial Institute – 1995 (2) CPC 2.
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