ORDER
B.S. Yadav, J. Member
1. This is an appeal against the Order dated 3rd August, 1991 passed by the State Consumer Disputes Redressal Commission, Kerala at Thiruvananthapuram in complaint case No. 164 of 1990. That complaint was filed by the present respondent M/s. Pineapple Marketing Co-operative Society Ltd., which has been formed by 1500 odd Pineapple cultivators with the objective of promoting cultivation, marketing and processing of pineapple and its products. The Society decided to start a pineapple processing unit at Amayannur, Koltayam District with the financial aid and guidance of the National Co-operative Development Corporation (for short NCDC). The Society required a boiler for the processing unit. For that purpose, they invited quotations for the installation of a non-IBR boiler (boiler not coming under Indian Boiler Regulations). The quotation submitted by the present appellants-M/s. Indra Fabricators and Ors. (appellant No. 1, who was the Opposite Party in the complaint, appellant No. 2 Ashok Grover appears to be the proprietor of that firm and appellants No. 3 and 4 are also connected with that firm), was accepted on the recommendation of Mr. B.C. Mathur, Consultant, NCDC. Accordingly, an order was placed upon the appellants for erection of a non-IBR boiler and they erected it in August, 1987 after receiving a total amount of Rs. 1,37,732/- by way of its price. Sales Tax, insurance, freight etc. The boiler was inspected by the officers of the Department of Factories and Boilers of the Government on 2nd November, 1987 in the presence of the representatives of the opposite party, i.e., the appellants and it was detected that the boiler installed by the appellants was an IBR type with a capacity of more than 22.75 litres. The complainant Society received a letter dated 11th November, 1987 from the Senior Inspector of Factories and Boilers, asking them not to operate the toiler until the required approval was received from the Director of Factories & Boilers, Trivandrum. The Complainant Society informed NCDC about the developments and to contact the opposite party to set the mailers right. When the Consultant of NCDC intervened, the opposite party admitted that the boiler installed was an IBR type and that they would convert it to non-IBR type. In the meantime Mr. C. Venugopal, Boiler Engineer and Expert from Madras inspected the boiler in the presence of concerned Government Officers and vide his report confirmed that the Boiler was not a non-IBR type and was having a capacity, of more than 22.75 litres. The said expert also reported that the boiler had been manufactured in June, 1985 as per the orders of some other party by name J.J. & Sons. The report of the expert was communicated to the NCDC as well as to the appellants in 1987. The appellants pleaded that (hey would rectify the defects and replace the defective part. The boiler expert informed the complainant that even if the proposed replacement was carried out. The modified boiler would not serve, the purpose of the processing unit. The appellants sent a mechanic to the Co-operative Society to do the proposed rectification of defects, but nothing materialised. The processing unit set up by the Society remained non-operative and the working of the Society has come to a standstill. On the above allegations, the complainant Society had approached the State Commission with a payer that the opposite party be directed to pay compensations and other reliefs. The total amount claimed by the Society was Rs. 9,92,892/- which included the cost of boiler paid to the appellants.
2. Appellant No. 2, B.S. Grover, who is the proprietor of M/s. Indra Fabricaotrs, representing all the opposite parties, filed a counter to the complaint. He took up preliminary objections to the effect that according to the terms and conditions of the quotation the courts in Bombay had jurisdiction to decide the dispute. On merits, he denied the averments contained in the complaint and averred that as agreed upon by the parties, they had manufactured, supplied and erected a non-IBR boiler for the Co-operative Society. According to them, the volumetric capacity of the boiler was assessed to be more than the prescribed one by the Inspector of Boilers on the basis of some wrong calculations and then concluded that the boiler was an IBR type. He also offered to rectify the defects, if any, to conform the specifications prescribed for non-IBR type boiler and also commission the boiler at the said Society’s premises. It was also alleged that service mechanic was deputed to rectify the defects and convert the boiler to suit non-IBR requirements but the Society did not permit the execution of the modification. He also denied the allegation of the complainant that he had resorted to any unfair trade parctice.
3. After filing the counter version and some documents, the appellants did not appear before the State Commission on any further hearing. Shri R.S. Money, Managing Director of the Society appeared as P.W. 1 and put 21 documents as P1 to P21.
4. The State Commission considered the pleadings and evidence of the complainants as well as the counter statement filed by the appellants before them and came to the following conclusions:
1. That the State Commission of Kerala has jurisdiction to try the complaint,
as cause of action arose within its jurisition.
2. The boiler erected by the appellants in the complainant’s processing unit did not conform to the description of a non-IBR type and it was positively an IBR one
and its conversion into non-IBR one as suggested by the appellants was not an easy
and feasible proposition from the point of view of efficiency and economy as was clear from the report of the Boiler Expert (Ex p13).
5. The processing unit was completed as far back as in August, 1987 and the entire investment of the Society coming to more than Rs. 16 lacs remains dead, on account of the default and unfair trade practice of the appellants.
6. The State Commission awarded Rs. 1,17,712/- which was the amount paid by the Co-operative society to the appellants for acquiring the boiler with interest at the rate of 16% per annum on Rs. 8,26,000/- (this was the amount of loan taken by the Society from the NCDC upto 11.8.1987) from 11.8.1987 till the date of payment to compensate them of the penal interest payable by them to NCDC for delayed repayment of principal and interest, Rs. 10,000/- by way of general damages plus Rs. 2,500/- as costs.
7. Feeling aggrieved, the Opposite party, i.e. Indra Fabricators and Ors. have come before this commission by way of filing this appeal against the above Order.
8. Before we take up this appeal on merits we mention here that the appeal is time barred. The Order of the State Commission is dated 3rd August, 1991. According to the appellants, they received the copy by Regd. Post on 26.09.1991. The appeal was filed on 4th November, 1991 i.e. more than 10 days after the receipt of the Order. No application for condonation of delay for filing the appeal has been filed. In the memorandum of appeal in para No. 18, it is of course mentioned by the appellants that they reside and permanently work at Bombay and further they were informed by their counsel that the time for filing an appeal was three months and therefore, the delay be condoned. None of the grounds is sufficient cause for condonation of delay and the appeal is, therefore, liable to be dismissed on the ground that it has been filed beyond the period prescribed for filing the appeal.
9. On merits also the appeal has no force. It is not disputed by the appellants i.e. the fabricators of the boiler that they had submitted a quotation for a non-IBR type boiler which was the requirement of the Society. The boiler manufctured and erected by the appellants in the processing units has been conclusively found to be an IBR type boiler.
10. The appellant’s case is that they had supplied a non-IBR boilder but its volumetric capacity has been assessed more than the prescribed one by the Inspector of Boilers. They were prepared to rectify the defects, if any, to conform to the specifications prescribed for non-IBR Boiler and also to commission the Boiler to the satisfaction of the Society. As noticed in the earlier part of the Order, the Boiler Expert in his report has stated that such conversion of IBR type boiler into non-IBR boiler was not an easy and feasible proposition from the point of view of efficiency and economy. Therefore, the Society appears to be in the right when they choose not to accept the modification offered by the appellants in the boiler supplied by them. There is no reason why the appellants supplied an IBR type boiler when the agreement between the parties was for supply of a non-IBR boiler. It appears that some boiler which had been manufactured by the appellants for some other party in June, 1985 was lying with them and they erected it on the site of the processing unit of the Society. Thus, the appellants are clearly guilty of unfair trade practice.
11. ‘Unfair trade practice’ has been defined in the consumer Protection Act. 1986 (for short the Act) is having the same meaning as in Section 36-A of the Monopolies and Restrictive Trade Practices Act, 1969. The relevant portion of 16 A of the latter Act reads as follows:
“In this part, unless the context otherwise requires, ”unfair trade practice” means a trade practice which, for the purpose of promoting the sale, use of supply of any goods or for the provisions of any services, adopted one or more of the following practices and thereby causes loss or injury to the consumers of such goods of services, whether by eliminating or restricting competition or otherwise, namely:
(i) The practice of making any statement, whether orally or in writing or by visible representation which.
(i) falsely represents that the goods are of a particular standard, quality, grade, composition, style or model;……”
12. Upto the last moment, the appellants continued wrongly representing that they had supplied a non-IBR type boiler, when in fact it was of an IBR type. Thus the Society’s complaint is clearly covered by above provision.
13. This act of the appellants will also fall under the definition of the ‘defective goods’ as defined in Section 2(1)(f) of the Act. When the contract was for supply of a non-IBR type boiler, the appellants supplied wrong type of boiler.
14. The learned counsel for the appellants also argued that the boiler was purchased by the Society for commercial purpose, therefore, the Society will not fall within the definition of “consumer” as defined in Section 2(1)(d)(i) of the Act. This argument was not raised before the State Commission. Moreover, if about 1500 pineapple growers form a society and set up a processing unit, it cannot be said that they are engaged in large scale commercial activity.
15. The learned counsel for the appellants argued that the appellants were prepared to commission the boiler but the Society did not allow it on one ground or the other. The Society had to get the approval of NCDE as well as from the Boiler Expert. Therefore, they were right in patting of the commissioning of the boiler. We are not able to understand how this argument is going to help the appellants. The boiler supplied was not of the type or specification which was contracted for by the Society.
16. Accordingly, we dismiss the appeal with costs which we assess at Rs. 2,000/-