HARYANA STATE MINOR IRRIGATION And TUBEWELL CORP. LTD. vs Cement Corporation of India Ltd.

FIRST Appeal Nos.318 and 319 of 1992 preferred by the Haryana State Minor Irrigation are directed against the virtually identical orders of the District Forum, Bhiwani dated the 25th of August, 1992. Learned Counsel for the appellant agrees that since the issues of fact and law are wholly common, this order will govern both of them.

WE are firmly of the view that both the aforesaid appeals are concluded against the appellant by the considered earlier decision of this Commission in I (1991) CPJ 631 Dr. B.S. Gaba v. Steel Authority of India Limited and Another. It, therefore suffices to notice the facts in their bearest outline and these may be taken from first Appeal No.318 of 1992. The appellant is a Government company duly incorporated having its head office at Chandigarh. On their own showing, they placed an order with the Cement Corporation of India Limited for the supply of 600 metric tons of cement and deposited Rs. six lacs, therefore on 7th of December, 1988. The respondent promptly made supply of 100 metric tons valued at Rs; l,00,226/-.The balance quantity was however, supplied on the 25th of December, 1989 which according to the complainant was much delayed. It was the case that because the respondent has retained the full price of the cement and made the part supply thereof somewhat late, they were liable to pay interest amounting to Rs. 69,837.95P. It would appear that despite service the respondent did not appear or file any reply to the complaint. The appellants sought to support their case by a solitary affidavit and some documents.

The District Forum inevitably first adverted to the aspect whether the appellants came within the ambit of the consumer as defined under the Act. On this aspect it came to the conclusion that the activities of the complainant comes within the definition of business and as such the purchase was apparently for a commercial purpose and consequently they were excluded from the definition of a consumer. Inevitably both the complaints were dismissed.

MR. Salwan, the learned Counsel for the appellant had primarily argued that the, appellant corporation was not primarily a profit making organisation and, therefore, the purchase of cement by it should not be labelled as wholly for a commercial purpose. It was highlighted that as the very name of the appellant indicates, it has been established only for the welfare of the poor farmers by providing them minor irrigation facilities. It was submitted that the appellants primarily occupied themselves will laying down irrigation lines and channels for marginal farmers. There may perhaps be some modi-cum of merit in the submission aforesaid. But herein it becomes unnecessary to examine the same because the order of the District Forum has necessarily to be sustained on a more surer ground. It was the appellants own case that the whole, transaction here in was a sale and purchase of goods in the shape of bulk supply of cement. Within the consumer jurisdiction, therefore, the lis could only be with regard to the supply of defective goods. It had to be frankly conceded before us that there is not even a hint or suggestion that the cement supplied was in any way below the .standard, or gave any cause, of complaint. That being so, not the least cause of action would arise to the appellants as regards the quality, potency, purity or standard of the cement supplied.

FACED with a somewhat unsurpassable hurdle, Mr. Salwan had attempted to argue that the present transaction may be treated as a hiring of services by the appellant. It was submitted that the considerable delay of more than a year in making the balance of the supply of cement would come within the concept of a deficiency in the service hired. The aforesaid submission has only to be noticed and rejected. The core of the appellant''s grievance is the delay in the supply of a part of the contracted quantity. On principle, we are unable to see how this can in any way amount either to a hiring of services or a deficiency therein. It is unnecessary to dilate on this matter because as already noticed the issue is covered against the appellants by ''Dr. B.S. Gaba v. Steel Authority of India Limited and Another'' (Supra). Therein on a virtually identical set of facts, the same issue was raised and after a full consideration of the matter both on the language of the statute and principle and precedent, it was categorically held as under: "To conclude on this aspect the answer to the second question posed at the out-set is rendered in the negative. It is held that in a contract of sale of goods simpliciter mere delay in delivery thereof beyond the agreed date would not convert it into a deficiency of service within the meaning of the. Act."

In the light of the aforesaid ratio, it is somewhat patent that both the appeals must fail on this ground. It, therefore, become wholly unnecessary and would be wasteful to examine the question whether the appellant is primarily a profit making business organisation or whether the specific purchase of cement was necessarily for a commercial purpose. This issue can obviously be examined in a more appropriate case.

FOR the fore-going reasons, both these appeals must fail and are hereby dismissed. Since no appearance has been put in on behalf of the respondents, we decline to burden the appellant with any costs. Appeals dismissed.