1. HEARD.
2. THIS is complainant''s appeal against the order of dismissal of his complaint by the DF, Bikaner. The case put forth by the appellant in the complaint under Section 12 of the C.P. Act, 1986 (the Act) was that he had purchased an Escort JBC Excavator Loader 3 DHDT on 21.6.1998 from Rajesh Motors, respondent No. 2 for Rs. 15,000/-. The said machine had been sold by respondent No. 2 to him with a warranty for one year against defects in parts or in machine or to run successfully for 2000 hours. But the said goods came out to be defective and when the appellant required the respondents to replace the spare parts or to remove the defects in the machine, they declined to do so. The respondents apart from denying that they had sold defective goods to the appellant, contended that the appellant was not a consumer within the meaning of the term defined in Section 2(1)(d) inasmuch as that he had purchased the said machine for the partnership firm and which firm was engaged in the business of excavating stones at sufficiently large scale. It was also contended by the respondents that the relief claimed by the appellant exceeds the pecuniary jurisdiction of the DF. The DF found favour with both the preliminary objections raised by the respondents and dismissed the complaint of the appellant.
It was urged by the learned Counsel for the appellant that a bare reading of the relief clause would disclose that the relief claimed by the appellant was to the extent of Rs. 5 lacs only and, therefore, the DF erred in holding that the relief claimed in the complaint exceeds the pecuniary jurisdiction of the DF. In support of this contention the learned Counsel for the appellant relied upon the National Commission order in the case of Quality Foils India (P.) Ltd. v. Bank of Madhura Ltd., II (1996) CPJ 103 (NC)=(98) NCJ. We agree with the argument advanced by the learned Counsel.
The appellant had claimed the following reliefs : Para Nos. 7 and 8 of the complaint, wherein the relief claimed was detailed reads as under :
3. IT may clearly be noted that the relief claimed by the appellant was repairs/replacement of the defective spare parts in the machine or payment of Rs. 5 lacs to him. The learned DF has taken into consideration the possibility of award of compensation and cost of the appellant in case he succeeds in his complaint. But the DF overlooked the facts that it was not obligatory on its part to have allowed Rs. 5 lacs as compensation to the appellant. In any case for the purpose of determining the pecuniary jurisdiction the result of the relief that may ultimately be granted is not to be taken into account as held by the National Commission in the case of Quality Foils India (P) Ltd. (supra). We, therefore, upset the finding of the DF in this respect and held that the complaint was maintainable before the DF.
On the other ground of dismissal of the complaint we are however of the opinion that the appellant had purchased the goods for commercial purposes. The goods purchased was worth Rs. 14 lacs. The appellant had obtained loan from Escort Finance in order to purchase the machine. It is well in evidence that the appellant was carrying on the business of excavating stones in the business name of Hulash Chandra Bhutara. The said firm is stated to be A Class railway contractor. The investment made in the purchase of the machinery, the nature of the business the appellant was carrying on in association with other persons, the volume of such business and the persons employed or required to be employed in carrying on such business indicate that the income earning activities were being carried on by the appellant at sufficiently large scale in order to earn huge commercial profits. That being so, the plea of the appellant that he had purchased the goods for earning his livelihood by self-employment cannot be accorded judicial recognition. We, therefore, agree with the DF that the appellant was not a consumer within the meaning of the term defined in Section 2(1)(d) of the Act inasmuch as the goods in question had been purchased for commercial purposes for earning commercial profits.
4. IT was however submitted by the learned Counsel for the appellant that the present dispute involved "hiring of services" by the appellant. On the face of it the transaction entered into between the parties was a transaction for purchase and sale of goods. IT was not a contract of service or the case of hiring of service for consideration. The warranty given by the seller in respect to the quality of the goods cannot be read as having a contract of service in it. After-sales service is coupled with the contract of sale itself. There is no separate agreement between the parties whereunder one party would have hired the services of the other for consideration. The consideration was admittedly paid by the appellant for purchase of the goods itself. No part of such consideration was paid for the hiring of the service. That being so the observation made by the National Commission in the case of International Airports Authority of India v. Solidaire India Ltd., 1999 (1) CPR 17, are not at all applicable to the facts and circumstances of the present case.
It was also urged by the learned Counsel for the appellant that Hulash Chandra, the partnership firm which was A Class contractor and wherein the appellant was one of the 8 partners stood dissolved with effect from 1.10.1996 and by appellant''s sole act of writing a letter to the respondents, in respect of the goods in question, on the letter-head of the dissolved firm, would not take the case of the appellant out of the definition of "consumer". We are sorry we cannot agree with the learned Counsel in this behalf also.
Repeatedly did we ask as to what happened to the assets and liabilities of the so-called dissolved partnership firm. No satisfactory answer could be given to our querry in that behalf. The appellant is admittedly carrying on the same business as was being carried on by the so-called dissolved partnership firm. Assuming that the partnership firm stood dissolved with effect from 1.10.1996, the appellant carried on the same business thereafter. It could not be explained whether the appellant had taken over the business of the said dissolved firm as a going concern. Above all the so-called dissolution deed was not produced before the DF. No explanation has been offered as to why it was not produced before the DF, when it was in the possession of the appellant. All these facts do not inspire any confidence in us about the genuine character of the so-called dissolution deed.
5. IN view of the above the appeal is dismissed with cost at Rs. 2,500/-. Appeal dismissed.
