1. THE complainant Sumo Steels Pvt. Ltd. have purchased the unit from Vaibhav Steels Pvt. Ltd. under Section 29 of the SFC Act from Uttar Pradesh Finance Nigam. It is alleged in para 8 that the industries registered under Small Scale Industries, the Company is engaged in production of steel. THEre is dispute in this case regarding the arrears of electricity supplied to the Vaibhav Steels Pvt. Ltd. and also system loading charges. It is said that a sum of Rs. 11,70,000/- has been paid by the Vaibhav Steels Pvt. Ltd. It was previously adjusted by the Electricity Department. Again, it is being realised from the complainant. Hence, the complaint.
2. THE opposite party filed objections and alleged that the arrears were realised in 12 instalments. 11 instalments have already been paid by the complainant. Besides, the dispute with Vaibhav Steels Pvt. Ltd. is a separate dispute, but the system loading charges are to be realised afresh. By clerical or official mistake, earlier the payment made by Vaibhav Steels was adjusted, that is not correct and the Corporation is fully entitled to recover this amount.
Before going into the controversy, it was raised by the learned Counsel for the opposite party that the electricity supplied to the earlier unit or the present unit is for production of steel and, therefore, it is for commercial purpose and a complaint shall not lie before the Consumer Courts.
We shall discuss about the other facts and merits of the case, if necessary only if it is held that the complaint shall lie before the Consumer Courts. If the complaint did not lie before the Consumer Court, we have got no jurisdiction to give any finding on merits. Therefore, we have first to decide whether the supply to the earlier unit and the present unit is for commercial purpose or not. Commercial purpose has not been defined anywhere in the Act. In its common parlance ''commercial purpose'' is that purpose the object of which is to make profit. ''Commercial'' encompasses all business activities. According to standard dictionaries the word ''Commercial'' means : "connected with, or engaged in commerce; mercantile; having profit as the main aim." (Collins English Dictionary) "pertaining to commerce; mercantile" (Chambers Twentieth Century Dictionary)
3. THE meaning of the term ''commerce'' as given in the dictionaries is : "exchange of merchandise especially on a large scale" (Concise Oxford Dictionary) "interchange of merchandise on a large scale between nations or individuals; extended trade or traffic" (Chambers Twentieth Century Dictionary).
The learned Counsel for the parties submitted certain rulings which are off the track. These are not exactly on the points. The opposite party filed the ruling that the complainant should approach the authorities under the Electricity Act before filing any suit etc. But they did not directly produce any such ruling on the subject. However, one such ruling was produced by the learned Counsel for the opposite party reported in I (1994) CPJ 233 (Orissa), Executive Engineer Central Electrical Division v. Somnath Berry, in which it has been held that where complainant was running battery charging unit with the help of electricity, the electricity was a goods. It was further held that supply of electricity is not a service and the complainant using electricity for commercial purpose, is not a consumer.
4. BEFORE Amendment Act of 2002, the bar was only in respect of goods for resale or for any commercial purpose. But, by the Act of 2002, even the services availed of for commercial purposes, have been included in the Exemption Clause. Therefore, after this amendment, person hiring services for commercial purposes is also not a consumer and is not eligible to lodge a complaint as per amendment made by the Amendment Act, 2002. Therefore, it is immaterial whether the electricity is goods or services, but, if it has been obtained for commercial purpose even not for resale, then also, it shall come within the purview of the Bar Clause. The word purpose is very comprehensive and includes even manufacturing for profits.
In the ruling reported in I (1991) CPJ 499 (NC)=1991 (1) CPR 615, a National Commission ruling, Synco Textiles Pvt. Ltd. v. Greaves Cotton & Co. Ltd., it has been held that :
"the appellant Company was engaged in the business of oil mill to produce edible oil and oil-cakes from oil seeds. The plant and machinery in the factory are used for conversion of raw materials into finished goods. His complaint was that three electricity generating sets purchased from the respondent-Company were found to be defective and, therefore, he was entitled to compensation under the Consumer Protection Act. The National Commission observed that the purchase of the generating sets was clearly for the purpose of generating electricity for running the expeller machinery in the factory for commercial production of edible oils. The Commission held that there was a close and direct nexus between the purpose of purchase of the generating sets and the commercial activity of manufacturing of edible oils for trade carried on by the appellant-Company, since the generating sets were intended to be used, as and when the need arose, for generating electric current for manufacturing of edible oils for the purpose of trade and, therefore, the appellant was not a consumer within the meaning of the Act."
If generating sets, in themselves, are for commercial purpose, if it was used in the business of oil mill, then why not purchase of electricity directly without a generating set ? Similarly, in the ruling reported in 1993 (2) CPR 162 (Punjab CDRC), Manjit Singh v. Dharampal Gupta, it has been held that :"The complainant was running the business of ''Atta Chakki'' and in order to expand his business i.e., to increase his income, he contacted the respondents and purchased from them a diesel engine. The diesel engine supplied by the respondents turned out to be defective and the complainant requested the respondents to rectify the defects. But the technicians of respondents were unable to rectify the defects. The complainant preferred the complaint praying for refund of price paid or replacement of goods, together with compensation for the loss and injury suffered by him. The Punjab State Commission observed that it was not the case of the complainant that he was doing business for his livelihood. On a close perusal of the documents filed by the complainant the Commission held that the purchase of diesel engine was for commercial purpose and consequently the complainant was not a ''consumer'' as envisaged in the Consumer Protection Act."
Necessarily, the diesel engine was for supplying electrical energy to the Atta Chakki.The supply of the electricity has got direct nexus with the production. For commercial purpose in this particular case, as well, without electricity, there could not have been any production and either it is goods or service, it has been availed for commercial purpose.
5. WE have already said above that at present whether the electricity is goods or in the category of services, in either way by the Amendment Act of 2002, it has come into purview of the Act if it is hired or used for commercial purposes. WE have offered other learned Counsel appearing in this Commission as well to address the Commission on this point because the matter is academic and also new after the amendment. WE have to divide the matter into two parts. First part before amendment and second part after amendment. Mr. M.K. Kohli, Advocate, an intervener, referred the ruling reported in I (2003) CPJ 101 (NC), Secretary, Kerala State Electricity Board v. Hotel Maria, in which the matter was of the excessive bills. This case was decided on 8.2.2002 before amendment. Nothing was said about commercial purpose in this ruling.
6. MR. M.K. Kohli, again, referred the rulings reported in I (1997) CPJ 17 (NC), Travancore Oxygen Ltd. v. Kerala State Electricity Board; I (1991) CPJ 450=1991 CPR 269, Escon Pvt. Ltd. v. The Karnataka Electricity Board, and II (2002) CPJ 296, U.P. State Electricity Board v. Sushil Kumar Singh. These rulings, also, not concerned with commercial purpose. All these rulings do not say about Exemption Clause or Commercial Purpose. It was argued that since the Commission and Forums have entertained cases, therefore, it shall be presumed that there was jurisdiction. Without the dispute having been raised in these rulings, there is no decision on the point and, therefore, these rulings are irrelevant. The learned Counsel MR. J.K. Jain as well as MR. M.K. Kohli, intervener, referred the ruling reported in I (1992) CPJ 73 (NC), Manju Singh Chauhan v. M.P. Electricity Board. In this ruling, the dispute was :
"Complainant filed complaint against alleged illegal disconnection of power supply by opposite party. Electricity Board raised objection that as the complainant was manufacturing silencers for sale and profits, therefore, she use electricity for a commercial purpose, she is not a consumer - Whether the complainant is a consumer ? - (Yes) This Commission has considered these questions in a number of cases previously. It has come to the firm conclusion that corporate bodies like the State Electricity Boards render service under Section 2(1)(o) of the Consumer Protection Act and that the sale of electricity is for consideration and supply of electricity on a continuing basis over a period of time against payment, therefore, is hiring service under Section 2(1)(d)(ii) of the Consumer Protection Act. There is no merit in the contentions of the opposite party on the question of jurisdiction."
This ruling says that before amendment of the Act, the supply of electricity was as supply of goods. It did not apply to hiring of services. Therefore, even if it is used for commercial purposes, there was no bar to a case under the Act. Conversely, now after the amendment since supply of electricity is in the category of service, then, after the amendment, this service has come within the mischief of the section. Similar is the position of the ruling reported in I (1998) CPJ Page 17, Ashok K. Kukeraja v. M.P.S.E.B., wherein it was held that electricity is goods, therefore, shall not come in the mischief of the Act because in those days, rendering of services for commercial purposes was not a bar to a complaint before the Consumer Forums. The same position is in respect of the ruling reported in II (1992) CPJ 819 wherein also, it has been held that it was rendering of services and not goods. All these rulings are of before the amendment. In other words, these rulings help the opposite party more because now after the amendment, even services for commercial purposes will oust the jurisdiction of the Consumer Courts.
On the facts and circumstances of the case and also on the law discussed above, we are of the firm opinion that the services have been rendered for commercial purpose and, therefore, a petition shall not lie before the Consumer Courts. Since the petition shall not lie, we decline to give any finding on merits. The complaint is to be dismissed. ORDER The complaint is dismissed. Cost of the complaint shall be easy. Complaint dismissed.
