M.THANIKACHALAM, J. - (1.) The complainant having failed by filing a complaint before the District Forum, has come before us as appellant, for redressal.
(2.) The facts necessary, for the disposal of the case (in brief): The complainant having supplied chemicals to the 2nd opposite party, from the year 2001, having running account, they have to pay a sum of Rs.5,13,958.96/-. The 1st opposite party, being the Managing Director of the 2nd opposite party, was having all control over the affairs of the 2nd opposite party / company. In the year 2003 August, the 1st opposite party being the authorized signatory of the 2nd opposite party, issued three cheques bounced, and inspite of several requests, the amounts were not paid. Therefore, a legal notice was issued, for which the 1st opposite party should have issued a reply with reasons for non-payment, being the signatory of the cheques, which he failed, that should be construed as breach of contract. The complainant having no alternative, filed a suit for the recovery of a sum of Rs.5,13,958.96/-, which was opposed by the 1st opposite party, as the Managing Director of the 2nd opposite party, wherein in the written submission it is said, regarding the proceedings pending before the Board of Industrial and Financial Reconstruction, praying for the dismissal of the suit. If the 1st opposite party had informed about the steps taken in BIFR, the complainant would have avoided filing of the suit and by the deficiency committed by the 1st opposite party, the complainant had suffered mental agony, for which they are entitled to Rs.2 lakhs, as expenses and Rs.5,12,958.96 as compensation, in addition to a sum of Rs.50000/- for mental agony. Since the 1st opposite party had suppressed the facts, which he was legally bound to disclose, this complaint is filed against the 1st opposite party, not against the 2nd opposite party, thereby praying an award, as prayed for.
(3.) The opposite parties, not challenging the transaction, resisted the case interalia contending that the transaction between the parties was commercial transaction, and therefore the complainant is not a consumer, and in this view, the complaint itself is not maintainable, liable to be dismissed. It is the further defense of the opposite parties, that because of the BIFR proceedings, and the case filed by the complainant in O.S.O.3627/2005, on the file of VI Additional Judge, Civil Court, and its withdrawal by the complainant, on its own, the consumer complaint is not maintainable and if at all the complainant had any grievance, he ought to have worked out his remedy, according to the Companies Act, and the case filed before the consumer forum, the complainant being not a consumer, is liable to be dismissed with exemplary cost.;