Salem District v. M/sNoida ChemicalsC-10

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 17.6.2009CORAM:THE HONOURABLE MR.JUSTICE M.VENUGOPALA.S.No.929 of 2001Tamil Nadu Electricity Board rep byits Chief EngineerMettur Thermal Power StationMettur Dam-6Salem District .. Appellant/Plaintiff-vs-M/sNoida ChemicalsC-10, Sector VII, NoidaSasiabath District,Uttarpradesh-201 301 .. Respondent/DefendantThis appeal is filed under Section 96 of CPC against theJudgment and Decree dated 16.4.2001 made in O.S.No.271 of 1999 onthe file of Sub Court, Mettur.For appellant : : Mr.N.MuthusamyFor respondent : : No appearanceJ U D G M E N TThe appellant/plaintiff has preferred this appeal before thisCourt as against the Judgment and decree dated 16.4.2001 passed bythe learned Subordinate Judge, Mettur in O.S.No.271 of 1999.2.The short summation of facts of the case are as follows:The appellant/plaintiff had placed purchase order dated29.1.1992 for supply of Hydrate 80% (2000 Kgs) at Rs.107 per Kgamounting to Rs.2,14,000/- with the respondent/defendant. Therespondent/defendant sent sample along with test certificate on12.2.1992. As the sample was as per the specification, theappellant/plaintiff sent approval for bulk supply through phonogramdated 20.2.1992. The respondent/defendant supplied 2,000 kgs ofHydrazine Hydrate on 27.6.1992 through A.R.C.Transport. Theappellant/plaintiff made payment through Bank for a sum ofRs.2,03,300/- on 15.6.1992 towards 95% value of the order and thebalance 5% amount was to be paid within thirty days, if the goods https://hcservices.ecourts.gov.in/hcservices/ were in condition. The appellant/plaintiff Board tested the bulksupply by means of taking samples on 10.7.1992 and found only 31.01%purity instead of 80% under the purchase order. Therefore, there wasa short fall of 42 Kg of materials and the plaintiff rejected thematerials in entirety. The defects were informed to therespondent/defendant through the telex message on 16.7.1992. Furtherthe shortage was informed by a letter dated 6.7.1992 to therespondent/defendant. Despite, several reminders, the respondent/defendant failed to rectify the defects . In lieu of deficiency inservice by the respondent/defendant, the appellant/plaintiff hadincurred a loss for non utilising the said materials and lossoccurred through other mode of purchase from outsiders. Remindersdated 21.7.1992, 31.7.1992, 3.9.1992, 22.9.1992 and 28.9.1992 wereissued by the appellant/plaintiff. The respondent/defendantfurnished a reply on 28.7.1992. The appellant/plaintiff issued adetailed reply for replacement on 3.9.1992. The respondent/defendantwas not prepared either to replace the aforesaid defective items orto return the advance amount. The appellant/plaintiff issued aadvocate's notice on 28.3.1993 to the respondent/defendant callingupon it, to repay the advance amount which was paid by theappellant/plaintiff with 22% interest per annum. Since therespondent/defendant had committed an act of deficiency of service,the appellant/plaintiff filed a complaint before the Salem DistrictConsumer Dispute Redressal Forum in C.O.P.No.359 of 1994 complainingabout the deficiency of service. The Consumer Forum passed an orderon 2.9.1006 holding that the complaint was not maintainable in viewof the fact that the appellant/plaintiff was not to be considered asa 'consumer' under the Consumer Protection Act 1986. Inasmuch as theappellant/ Plaintiff lodged a complaint before the Consumer DisputeRedressal Forum, Salem, the present suit has been filed in time andthat the suit is not defective as per Section 14 of the LimitationAct. Hence the appellant/plaintiff filed a suit praying for aJudgement and Decree against the respondent/defendant for a sum ofRs.4.10.567/- with subsequent interest at the rate of 12% p.a withcosts.3.The respondent/defendant filed a written statement inter aliataking the pleas that the appellant/plaintiff did not produce anydocument to show that the defect in purity or the shortage in weightand no documents were filed by the appellant/plaintiff to show thatit had incurred a loss for non using the materials and loss occurredthrough alternative purchases from outsiders and in view of thedetailed letters dated 28.7.1992 and 21.12.1992, there was nonecessity for issuance of separate reply notice for the legal noticeand the contents of the letters dated 28.7.1992 and 21.12.1992 werevalid and that there was no breach of any of the terms of thecontract and that the Consumer Forum has rightly held that theappellant/plaintiff was not a consumer as per Section 2(d)(i) of theConsumer Protection Act, 1986 and that the claim is barred byLimitation and further that the appellant/plaintiff was not entitledto avail the benefit of Section 14 of the Act and a Consumer DisputeRedressal Forum especially under the Consumer Protection Act 1986 wasnot a Civil Court as per the decision reported in Union of India-v-Nilesh Agarwal, Jaipur (1991)CPR 348(350) (National Commission) and https://hcservices.ecourts.gov.in/hcservices/ the present suit was only a continuation of dismissal of C.O.P.No.359of 1994 etc. and there was no cause of action for filing of the suitand the calculation of interest was wrong and moreover theappellant/plaintiff took delivery of the goods on 27.6.1992 and thesamples were taken on 10.7.1992 and during the intervening period of13 days, there was possibility of unauthorised tampering with thepackaging by the appellant/plaintiff's Board men which could notruled out and therefore prayed for dismissal of the suit.4.On the basis of the aforesaid pleadings, the trial Courtframed six issues. On the side of the Appellant/plaintiff, P.W.1 wasexamined and Exs P1 to P14 were marked and on the side of therespondent/defendant, no witness was examined but documents Exs D1 toD5 were marked.5.On an appreciation of the oral and documentary evidence andtaking note of the available material evidence on record, the trialCourt has dismissed the suit without costs holding that the same wasnot maintainable and hit by the period of limitation.6. Though respondent/defendant has been served, none appearedbefore this Court today on its behalf.7. Dissatisfied with the Judgment and decree made in O.S.No.271of 1999 passed by the trial Court viz., the Subordinate Court,Mettur, the appellant/plaintiff has preferred this appeal.8.The points that arise for determination are (i) Whether the appellant/plaintiff is entitled toclaim the suit amount of Rs.4,10,567/- withsubsequent interest at the rate of 12% with costsfrom the respondent/defendant? (ii)Whether the appellant/plaintiff is a Consumer"coming within the purview of Consumer Protection Act1986? (iii)Whether the appellant/plaintiff isentitled to avail benefits under Section 14 ofLimitation Act? 9. Findings: Point Nos.1 to 3:The learned counsel appearing for the appellant/plaintiff urgesbefore this Court that the trial Court has misdirected itself whileconsidering the attitude of the appellant/plaintiff Board inprosecuting the proceedings before the Consumer Forum and that thetrial Court should have come to the conclusion that the time taken bythe appellant/plaintiff in prosecuting the proceedings before theConsumer Forum will have to be excluded in computing the period oflimitation and moreover the appellant/plaintiff was having sufficientgrounds to invoke the benefits of Article 14 of the Limitation Actand that the Consumer Form dismisses the issue on the basis that theappellant/plaintiff was not a "consumer" and it had not dealt with https://hcservices.ecourts.gov.in/hcservices/ the merits of the matters in issue between the parties and thesefacts have not been taken a note of by the trial Court in a properperspective and therefore prays for allowing the appeal infurtherance of substantial cause of justice. 10. The appellant/plaintiff before the trial Court has filedthe suit on 4.10.1996. As per Article 14 of the Limitation Act 'forprice of goods sold and delivered, where no fixed period of creditis agreed upon is three years from the date of the delivery of thegoods'. In the instant case on hand, the appellant/plaintiff'sspecific case is that it had placed purchase order dated 29.1.1992towards supply of Hydrozine Hydrate 80%(2000 Kgs)at Rs. 107 per Kgamounting to Rs.2,14,000/- with the respondent/defendant and thatsince the sample was as per specification, it gave approval for bulksupply through phonogram dated 20.2.1992 and further that therespondent/defendant supplied 2000Kgs of Hydrazine Hydrate on27.6.1992 through A.R.C.Transport and payment of Rs.2,03,300/-being95% value order placed by the appellant was made through Bank on15.6.1992 and the balance of 5% was to be paid within thirty days ,ifthe goods were in good condition. 11. The stand taken by the respondent/defendant before the trialCourt is that the appellant/plaintiff is not a 'consumer' coming withthe definition of Consumer Protection Act 1986 and that it cannotavail the benefits of Section 14 of the Limitation Act and furtherthe Salem District Consumer Disputes Redressal Forum, has held thatthe appellant is not a consumer and that the suit is a barred one.12. At this juncture, it is useful to advert to Ex P14 orderdated 2.9.1996 of the Salem District Consumer Dispute RedressalForum wherein the appellant/Board has figured as a Complainant andthe respondent/defendant has been shown as an opposite party and inthe said order of the Forum, it is among other things held asfollows:"It is admitted that the complainant cannot comewithin the explanation of Section 2(d)(i) ofConsumer Protection Act . It cannot be statedthat the said goods purchased by the complainantexclusive for the purpose of earning hislivelihood by self employment. So, thecomplainant cannot take shelter underExplanation clause. The following decisionsreported in 1995 II) CPJ page -1 Supreme Court ofIndia-Laxmi Engineering Works Versus P.S.G.Industrial Institute, 1991 (III) CPR page 389-National Consumer Disputes Redressal Commission- M/s Lohia Starlinger Ltd -versus- ZenithComputers Ltd., 1995(1)CPJ Page 51-NationalConsumer Disputes Redressal Commission-RabaContel Pvt.Ltd versus Printek and others,1994 (1)CPJ 208 - National Consumer Disputes RedressalCommission- Ebenezer Versus M/s Tuticorin PlasticPvt.Ltd.,1994(1) CPJ page-78 National Commission- https://hcservices.ecourts.gov.in/hcservices/ Eagle Ultra Marine Industries versus ParamontPollution Control (P)Ltd., support the case ofthe opposite party. Having regard to the natureand character of the goods purchased and thenature of use the said goods were put into, wefind that the said goods were purchased forcommercial purpose. In these circumstances, wefind that the complainant is not a consumer asdefined in Section 2(d)(i) of Consumer ProtectionAct. In these circumstances, we find that thecomplainant cannot seek any remedy from thisForum under Consumer Protection Act. In thesecircumstances, there is no necessity to considerthe other objections raised by the oppositeparty. So, we find that the complainant is not aconsumer under Consumer Protection Act and thathe is not entitled to any relief in thiscomplaint from this Forum under ConsumerProtection Act. Point is answered in the abovesaid manner."Besides this, the complaint projected by the appellant/plaintiffbefore the Consumer Forum has also involved intricate complicatedhighly mixed question of fact and law, which requires lengthy trial,examination of witnesses and documents to be appreciated. As amatter of fact, the order dated 2.9.1996 Ex P14 passed by the SalemDistrict Consumer Disputes Redressal Forum has become final and itbinds the parties. Moreover, initially, the appellant/plaintiffought to have filed the present suit within three years from the dateof delivery of goods as per Article 14 of the Limitation Act.13. As far as the present case is concerned, theappellant/plaintiff has placed the purchase order dated 29.1.1992towards supply of Hydrazine Hydrate 80%(2000Kgs)at Rs.107/- per Kgamounting Rs.2,14,000/- with the respondent/defendant and theappellant/plaintiff has also admitted in the plaint that therespondent/defendant supplied 2000Kgs of Hydrazine Hydrate on27.6.1992 through ARC Transport. It is also not in dispute that 95%of the value of the order amounting to Rs.2,03,300/- was made throughBank on 15.6.1992. This Court is informed by the learned counsel forthe appellant/plaintiff that the appellant/plaintiff has not paid theremaining 5% of balance amount.14. Inasmuch as the respondent/defendant supplied 2000Kgs ofHydrazine Hydrate on 27.6.1992, the suit should have been filed bythe appellant/plaintiff before a Civil Court within three years ie.,26.6.1995. But the appellant/plaintiff has not filed the suit on26.6.1995. Instead the appellant/plaintiff filed the suit only on4.10.1996 before the trial Court.15. It is to be borne in mind that Section 14 of the LimitationAct provides for Extension of Limitation. A party can take recourseto the exclusion period spent in an infructuous proceedingswhenhe impresses upon the Court that he has prosecuted the suit with due https://hcservices.ecourts.gov.in/hcservices/ diligence. Significantly, it is to be noted that Section 14 of theLimitation Act speaks of . . . . . . . . in a Court of first instanceor by appeal or revision etc. No wonder the Consumer Redressal Forumis not a Court and that the appellant/plaintiff is not a consumercoming within the scope and ambit of Section 2(d)(i) of the ConsumerProtection Act. Inasmuch as the appellant/plaintiff has initiatedthe complaint in COP NO.359 of 1994 against the respondent/defendantbefore the Salem District Consumer Disputes Redressal Forum andbecause of the fact, Section 14 of the Limitation Act enjoinsspecifically about the Court of first instance and taking note of thefact that Consumer Forum is not a Court, this Court is of theconsidered view that the word" Court" under Section 14 of theLimitation Act will not apply squarely to the appellant/plaintiffand as such the appellant/plaintiff cannot avail benefits providedunder the Section. To put it differently, the appellant/plaintiffhas initiated proceedings against the respondent/defendant before theSalem District Consumer Disputes Redressal Forum. Salem,on a wrongpremise and the initiation of the said proceeding cannot by anystretch of imagination be described as appellant/plaintiff bonafidelitigating for its right in a Court of justice. Section 14 of theLimitation Act contains a general principle based on justice,equityand good conscience. Added further, it is true that Section 14ought to be liberally construed. But inasmuch as theappellant/plaintiff is not a consumer coming within the purview ofthe definition as per Section 2(d)(i) of the Consumer Protection Act1986 and since it has prosecuted the proceedings before the saidConsumer Forum which is not admittedly a Court of Justice, eventhough it may have the trapping of a Civil Court and further sincethe suit has been filed only on 4.10.1996 and not before 26.6.1995viz before the expiry of three years from 27.6.1992 being the datefor supply of Hydrazine Hydrate 80%(2000Kgs) etc, this Court comes tothe conclusion that the appellant/plaintiff is not entitled to theclaim of Rs.4,10,567/- with subsequent interest at the rate of 12%per annum from the respondent/defendant and further that it cannotavail benefits under Section 14 of the Limitation Act andmoreover,the suit filed by the appellant/plaintiff is clearly barredby limitation and that the points 1 to 3 are answered against theappellant/plaintiff accordingly.16. In fine, in the light of the detailed discussions narratedsupra, the appeal fails and the same is dismissed. Consequently, theJudgment and decree passed by the learned Subordinate Judge, Metturare affirmed for the reasons assigned by this Court in this appeal.Considering the facts and circumstances of the case, there shall beno order as to costs. Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ sgTo1.The Sub Court,Mettur.2. The Section Officer,VR Section, High Court, Madras.+1cc to Mr.N.Muthuswami,Advocate Sr 23675MBS(CO)km/3.7.A.S.NO.929 of 2001