- (1.) - The appellant set up an industry at Unnao in Uttar Pradesh. He put up an application to the District Industry Centre, Unnao on 13-6-1986 for the supply of about 300 M.T. of G.P. Steel Sheets. The Government of India had constituted the respondent as statutory authority to canalise the procurement of the canalised items for imports and for on ward delivery to the consumer industries. The General Manager of the District Industry Centre recommended to the respondent of the appellant's requirement of 300 M. T. In furtherance thereof, on 24-8-1987, the respondent had written a letter to the appellants that they could arrange supply of 50 M.T. and directed the appellant to open letters of credit with them and to comply with the requirements mentioned in the letter referred to therein. Relevant terms are us under : "3. Please note that Marine Insurance is to be arranged by us. For this purpose suppliers will send a cable advice to us immediately after the shipment. Suitable provision in this regard has been made in our Purchase Order. 4. On receipt of documents from the suppliers, our port offices will get in touch with your bander. Please note that the consignment (s) is/are to be cleared by your through customs on receipt of documents from our port office/your bankers to whom documents will be presented against Letter of Credit opened on us. In respect of LC established by you against our authority directly in favour of foreign supplier, you are advised to contact our Regional Office immediately upon receipt of documents by your banker for arranging payment of our service charges and insurance etc. and also for getting the documents endorsed your favour. 5. Please note that in the event of any complaint in regard to shortage, damage and quality, you should report the matter to us immediately with all supporting documents to enable us to take up the matter with the foreign suppliers. Your claim will be settled on us by foreign suppliers and to the extent settlements are received by us. In case of complaints or short receipts and damage, necessary claim should be lodged by you with the insurance company steamer company while taking delivery of goods at the port. Any visual defect noticed on materials other than damage in handling should be reported immediately upon receipt. All other complaints should be reported within 30 days from the date of receipt of goods. In the meanwhile, we request you to kindly go through the Purchase Order and confirm per return that the same is in order."
(2.) After pooling the requirements of various industries, the respondent had placed a consolidated indent with a foreign seller for the supply of the total required quantity of the canalised items, in this case G.P.Sheets. The foreign seller appears to have expressed difficulty in supplying the entire quantity due to exigencies mentioned in their reply. In the meanwhile, the appellant admittedly had opened letters of credit with the respondent for 50 M.T. of G.P. Sheets. The respondent in turn had opened letters of credit with the foreign suppliers for bulk supply required quantity. Consequently, the respondent had written a letter to the appellant to receive 20% of the indented requirement but the appellants seem to have not complied with it. The respondent in the counter-affidavit filed in the Tribunal stated thus : "The supplier i.e. M/s. VOEST ALPINE were not in a position to organise shipment against the subsequent LOI as there was delay in setting up of the galvanising line. Due to these circumstances, the supplier wanted to invoke the Force Majeure clause on the plea that condition prevailing at their end warranted invocation of Force Majeure and hence inability to fulfil contractual obligation qua the respondent. The respondent keeping in mind the interest of complainant and other end users in the country persisted in their efforts to secure shipment and after great efforts succeeded in obtaining supply from M/s. Monton Metals on behalf of M/s. Voest Alpine. M/s. Monton Metals agreed to ship 20% of the quantity at the same price. The complainants and other end users in the country were informed by the respondent that in view of the Force Majeure Conditions operating in the producing countries/ the respondent at best could have recovered 2% guarantee money form the supplier towards non-performance of contractual obligations by the supplier. It was in these circumstances that the respondent advised all end users to make necessary financial arrangements and take delivery of 20% of the order placed on their respective behalfs. They were further advised to confirm their acceptance (s). The complainants did not reply to the correspondences of the respondent. The goods earmarked for them were allowed to be unloaded at the port as the respondent's Bombay Office advised that their L/C was operative. However the document pertaining to their consignment were returned by the banker who stated that the L/C in respect of the complainants was not valid. The complainant vide their telegram dated 5-12-1988 agreed to accept the goods in question without prejudice to their right to seek legal remedy by going to Court. The respondent informed them to take delivery of the goods in question by 26-12-88. The complainants failed to respond and did not take delivery. The goods in question became liable for demurrage charges,it was in these circumstances an alternative buyer was asked to take delivery of the goods in question after paying demurrage and other charges. It was only in these circumstances that the goods in question were delivered to another end user. Annexed herewith and marks as Annexure is copy of the Telegram dated 5-12-1988."
(3.) Since the respondent had not supplied the required quantity demanded by the appellants, the appellants laid the complaints before the National Consumer Disputes Redressal Commission (for short,"the Commission") under Section 21 of the consumer Protection Act, 1986 (for short 'the Act'). The Commission in the impugned order dated November 12,1992 dismissed the complaint in the following words : "...........We are clearly of the opinion that the transaction involved in this case is only one of Sale of Goods for commercial purpose and not an agreement of rendering any service of consideration. In these circumstances, the controversy raised in this case cannot be regarded as a Consumer Dispute which can appropriately be brought before this Forum. The Original Petition is dismissed on this limited ground. No. costs.";