Delhi

North

CC/50/2024

CRYSTA IVF LIFE PRIVATE LIMITED - Complainant(s)

Versus

BOSTON IVY HEALTHCARE SOLUTIONS PVT LTD - Opp.Party(s)

28 Feb 2024

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

 

CONSUMER COMPLAINT NO.: 50/2024

Date of filing: 22.02.2024

Date of decision: 28.02.2024

In the matter of

Crysta IVF Life Private Ltd.

Regd. Corporate Office:

DCM Plaza-2, (P2) Unit No.3036, 3037, 3038             

Plot 20, Central Square,

Manohar Lal Khurana Marg,

Bara Hindu Rao, Delhi-110006                            …      Complainant

Versus

Boston IVF Healthcare Solutions Pvt. Ltd.

 (Through its owners/directors)

Regd. Corporate Office:

Technopolis Knowledge Park Unit No. 17/18/19/21

C wing, Ground floor, Mahakali Caves Rd,

Opp Holy Family High School,

Andheri East, Mumbai,

Maharashtra 400093                                    …      Opposite Party

 

ORDER

28.02.2024

Present: Shri Kartik Singh, Ld. Advocate for Complainant (Vakalatnama not filed)

(Divya Jyoti Jaipuriar)

1. This matter is listed today for admission hearing. We have heard the arguments of Shri Kartik Singh for the Complainant Company, although no Vakalatnama has been filed on record. We have also perused the pleadings and documents filed by the Complainant Company.
2. The Complainant is admittedly a private limited company and is in the business of specialised IVF treatement and other assisted services to its patients through its centres under the brand name “Crysta IVF” at different parts of the Country. It is also an admitted position that the Complainant Company has entered into a “business deal” with M/s Bostal Ivy Healthcare Pvt. Ltd (OP herein) for supply of various clinical items and equipment for their use in clinical operations of different centres of the Complainant Company. The Complainant contends that as the OP supplied substandard materials and equipment, the deal was cancelled by the Complainant and OP was asked to refund the balance payment i.e. Rs. 6,94,081/- of the remaining items and equipment, which were not supplied upon cancellation of order. As the OP has not refunded the said balance amount, the Complainant Company has filed this complaint primarily for a direction to the OP to refund the said amount.
3. At the very onset, we posed a question to the Ld. Advocate for the Complainant to explain that how the Complainant Company is a consumer within the meaning of section 2 (7) of the CPA, 2019. He argued that as the Complainant Company has purchased the medical items and equipment from the OP, by virtue of the said purchase, it becomes a consumer.
4. Before proceeding further, it is paramount to reproduce relevant provisions of the Consumer Protection Act, 2019. Section 2 (7) CPA, 2019, reads as under:

“2. Definitions.—In this Act, unless the context otherwise requires,—

 

(7) “consumer” means any person who—

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose.

Explanation.—For the purposes of this clause,—

(a) the expression “commercial purpose” does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;

(b) the expressions “buys any goods” and “hires or avails any services” includes offline or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing;

 

5. The said provision clearly excludes the transactions which are for “commercial purposes” from the ambit of application of the CPA, 2019.  Although in a recent judgment, Hon’ble Supreme in the matter of National Insurance Co. Ltd. v. Harsolia Motors [(2023) 8 SCC 362], while dealing with identical provision as in section 2 (1) (d) of the Consumer Protection Act, 1986 (now repealed), has held that even Commercial Enterprises can file a consumer complaint if the said commercial enterprise is able to establish that the purchase of goods and service by the said enterprise is not directly related to profit generating activity of the enterprise. In this context, Hon’ble Supreme Court in Harsolia Motors case (supra) has held as under:

“39. Applying the aforesaid test, two things are culled out: (i) whether the goods are purchased for resale or for commercial purpose; or (ii) whether the services are availed for any commercial purpose. The two-fold classification is commercial purpose and non-commercial purpose. If the goods are purchased for resale or for commercial purpose, then such consumer would be excluded from the coverage of the 1986 Act. For example, if a manufacturer who is producing product A, for such production he may be required to purchase articles which may be raw material, then purchase of such articles would be for commercial purpose. As against this, if the same manufacturer purchases a refrigerator, television or air-conditioner for his use at his residence or even for his office has no direct or indirect nexus to generate profits, it cannot be held to be for commercial purpose and for aforestated reason he is qualified to approach the Consumer Forum under the 1986 Act.”

6. While passing the above order in Harsolia Motors (supra) case, Hon’ble Supreme Court has relied on its earlier judgments in the matter of Lilavati Kirtilal Mehta Medical Trust v. Unique Shanti Developers [(2020) 10 SCC 274] and Shrikant G. Mantri vs. Punjab National Bank [(2022) 5 SCC 42]. In Lilavati Kirtilal Mehta Medical Trust (supra) judgment, Hon’ble Supreme Court has laid down broad principles to determine any activity as “Commercial Activity”. Hon’ble Supreme Court in Lilavati Hospital case (supra) has held as under:

“19. To summarise from the above discussion, though a strait jacket formula cannot be adopted in every case, the following broad principles can be culled out for determining whether an activity or transaction is ‘for a commercial purpose’:

19.1. The question of whether a transaction is for a commercial purpose would depend upon the facts and circumstances of each case. However, ordinarily, “commercial purpose” is understood to include manufacturing/industrial activity or business-to-business transactions between commercial entities.

19.2. The purchase of the good or service should have a close and direct nexus with a profit-generating activity.

19.3. The identity of the person making the purchase or the value of the transaction is not conclusive to the question of whether it is for a commercial purpose. It has to be seen whether the dominant intention or dominant purpose for the transaction was to facilitate some kind of profit generation for the purchaser and/or their beneficiary.

19.4. If it is found that the dominant purpose behind purchasing the good or service was for the personal use and consumption of the purchaser and/or their beneficiary, or is otherwise not linked to any commercial activity, the question of whether such a purchase was for the purpose of “generating livelihood by means of self-employment” need not be looked into.”

7. While applying the said principles, Hon’ble Supreme Court in the matter of Shrikant G. Mantri (supra) judgment has examined the overdraft facility being utilised by a stockbroker has held that relations between the appellant [Stockbroker] and the respondent [Bank] is purely “business to business” relationship. Hon’ble Supreme Court, therefore concluded that as such, the transactions would clearly come within the ambit of ‘commercial purpose’ and it cannot be said that the services were availed “exclusively for the purposes of earning his livelihood” “by means of self-employment”. If the interpretation as sought to be placed by the appellant is to be accepted, then the ‘business to business’ disputes would also have to be construed as consumer disputes, thereby defeating the very purpose of providing speedy and simple redressal to consumer disputes, Hon’ble Supreme Court opined.
8. In the case in hand, the relationship between the Complainant Company and the OP Company is purely “business to business”. The dominant purpose of procurement of clinical item and equipment, to meet the goods requirements for clinical operations across all centres of the Complainant Company, can only be for commercial purpose. It also has close and direct nexus with the profit generating activity of the Complainant Company. In view of the guiding judgments of Hon’ble Supreme Court, as quoted above in this order, such business to business transaction for profit generating activities of the Complainant Company, under no stretch of imagination can be brought under the purview of Consumer Protection Act, 2019.
9. In view of the above, we are of the opinion that the Complainant Company is not a consumer as defined under section 2 (7) of the CPA, 2019 and this Commission cannot entertain this complaint on merits. Hence, this complaint is liable to be dismissed on the sole ground that Complainant Company is not a consumer within the ambit of section 2 (7) of the CPA, 2019.
10. Accordingly, for the foregoing reasons, this complaint is dismissed. However, we grant liberty to the Complainant Company to approach the Forum/ Court of appropriate jurisdiction, if so advised for the relief so claimed in this complaint. We also clarify that while dismissing the complaint we have only examined one aspect that whether the Complainant Company is a consumer or not for application of the provisions of the CPA, 2019 and we have not examined the case on the facts, evidences and merits of the case. Therefore, we clarify that as we have not expressed any opinion on the merits of the case, if the Complainant approached any other Forum/ Court, the same shall decide the case on its own merit without being influenced by any of the observations made in this order.
11. Office is directed to supply the copy of this order to the parties as per rules. Thereafter, file be consigned to the record room.

 

 

___________________________

Divya Jyoti Jaipuriar, President

 

 

___________________________

Ashwani Kumar Mehta, Member

 

 

___________________________

Harpreet Kaur Charya, Member