Govt. of West Bengal

             Office of the President

             District Consumer Disputes Redressal Commission, Darjeeling

            24, M.C. Road, Chota Kak Jhora, Darjeeling.

      P.O & Dist. Darjeeling. Pin-734101.

HEADING OF THE JUDGMENT

CONSUMER COMPLAINT CASE NO. 15/2021

Hon’ble President  : Mr. Syed Nurul Hossain

Hon’ble Member    : Mr. Siddhartha Ganguli

Hon’ble Member    : Mrs. Bhawana Thakuri

1. Prayas Hi Rise Infrastructure Private Limited,

               Represented by Managing Director. Mr. Tapan Dey,

               206, Bidhan Sarani Room No. 4,

               Kolkata-700006.

...........................Complainant.

V.E.R.S.U.S

1. Kalimpong Municipality,

Upper Cart Road,

District: Kalimpong-734301.

2. The Chairman,

Upper Cart Road,

District: Kalimpong-734301.

3. The Executive Officer,

Upper Cart Road,

District: Kalimpong-734301.

4. The Finance Officer,

Upper Cart Road,

District: Kalimpong-734301.

................................Opposite Party.

 For the Complainant      :    Smt. Mukulika Shah (Advocate)

For the Opposite Party  :    Mr. Sandeep Rai (Advocate)

Date of Filing         :   01.11.2021

Date of Disposal   :   15.02.2023

Time Taken           :    470 Days

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JUDGMENT

CONSUMER COMPLAINT CASE NO. 15/2021

ORDER NO. 16

15.02.2023

    This is a case filed by PRAYAS  HI – RISE INFRASTRUCTURE PRIVATE LIMITED  against the Opposite Party  Kalimpong Municipality and others praying for award amounting to Rs. 34,00,000/- (Rupees Thirty Four Lakhs) in terms of Memorandum of Agreement dated 27.05.2014 along with compensation amounting to Rs. 5,00,000/- (Rupees Five Lakhs) and other reliefs.

  The case of the Complainant in brief inter-alia is that the Complainant is a consumer represented by its Managing Director Mr. Tapan Dey by virtue of Board Resolution dated 27.09.2016  . The Opposite Party is a Municipal body engaged in providing necessary community service including solving waste disposal of Kalimpong town and at all material times carries on its business from Kalimpong. The Complainant further states that the Opposite Party was desirous of solving waste disposal problems of Kalimpong town.  The Complainant Company deals with waste disposal problems having expertise and good knowledge in the fieled, said offer was accepted by the Complainant Company. The Complainant Company entered into Memorandum of Agreement with the Opposite Party dated 27.05.2014 for 3 Years for providing service for waste management in Kalimpong Municipality area. Pursuant to the

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CONSUMER COMPLAINT CASE NO. 15/2021

said agreement, the Complainant Company duly filled his obligation of waste disposal in Kalimpong town from time to time and provided all its necessary services to the full satisfaction  to the authorities of the Kalimpong Municipality and after such satisfactory performance, the Opposite Parties, issued a certificate of honor dated 07.09.2015. After successful completion of the work assigned per month. The Complainant Company raised invoices as per terms and conditions of the said agreement . The Complainant Company raised invoices in favour of the Opposite Party as enumerated in Memorandum of Agreement dated 27.05.2014 against service rendered to the Opposite party for disposal of the solid waste management and door to door collection of wastes in the Kalimpong town. As on the date and amount of approximately Rs. 34,00,000/- (Rupees Thirty Four Lakhs) with admissible interest is due and payable by the Opposite Party to the Complainant as per calculation. But, they have not paid the amount after completion of their work. On or about 28.09.2015, the Complainant Company came to know and was shocked and surprised to hear from the Opposite party that the said agreement dated 27.05.2014 has been declared as null and void by the Opposite Party long before its expiry and further, the Complainant Company was asked not to provide any further services. Further, in the letter dated 28.09.2015, it was stated by the Opposite Party that it shall undertake the payment of outstanding amount soon but no effect has been given as yet. The Complainant Company wrote several letters in the form of representation from 28.07.2015 to 09.02.2017 and on 18.04.2019 inspite of receiving representation, no steps has been taken by the

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JUDGMENT

CONSUMER COMPLAINT CASE NO. 15/2021

 Opposite Parties to disburse huge dues of Rs. 34,00,000/- (Rupees Thirty Four Lakhs)  and for such non disbursing and/or non- payment of dues the Complainant has been suffering serious financial loss and it has also damaged the business, goodwill and /or development of the Complainant Company. The Complainant company has undertaken all works with due diligence and have satisfactory completed as per the Memorandum of Agreement dated 27.05.2014. Therefore, they have prayed for awarding the amount of Rs. 34,00,000/- (Rupees Thirty Four Lakhs) as per terms and condition of the Memorandum of Agreement dated 27.05.2014 in favour of the Opposite Parties. Further, they have demanded remuneration for the work long before and as such compensation of Rs. 5,00,000/- (Rupees Five Lakh) be awarded.

    Denying the matter allegation, the Opposite Party has filed Written Version on 25.04.2022 against the Complainant as stated in Para 4 of the Written Version that the averments in Para 4 of the complaint made by the Complainant  is true to the extent that the Opposite Party was looking for solving the waste disposal problems of the  Kalimpong town and it is true that the Complainant is engaged in waste disposal management but the contents of the complaint that the Opposite Party approached them to provide services relation to waste disposal management and the said offer was accepted by the Complainant Company is not true at all and the Complainant has tried its best to mislead the Hon’ble Commission by falsely incorporating the same in its complaint filed against the Opposite Party with malefide intention as paragraph of Memorandum of Agreement dated 27.05.2014 makes it –

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CONSUMER COMPLAINT CASE NO. 15/2021

crystal clear that it was the Complainant Company who was one of the Opposite Party (Kalimpong Municipality) provide its service relating to waste disposal management. To bring the same to the  knowledge of the Learned Commission and make it more clear for proper adjudication of the matter by the Learned Commission, the Opposite Party (Kalimpong Municipality) like to mention few lines of Memorandum of Agreement dated 27.05.2014 as follows;

  “AND WHEREAS  the Second Party is a company dealing with waste disposal problem and having expertise in the field and has offered the First party to provide service relating to waste disposal management.”

“ The First Party has accepted offer of the Second Party on certain terms and conditions enumerated in the Agreement and thereby creating contract enforceable under the law”.

So the above paras of MOA dated 27.05.2014 make it amply clear as to who has offered the service to whom. The Agreement shall be satisfied by the performance alone but the same never happened for the Complainant Company and the scheme was a total failure from the side of the Complainant Company and the audit report filed by the Opposite Party before this Learned commission duly signed by the Senior Audit Officer. The Opposite party discontinued the said Agreement dated 27.04.2014 from 01.10.2015 due to unsatisfactory performance and the sake of brevity  and the Opposite Party has filed the same before  this Learned Commission.

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JUDGMENT

CONSUMER COMPLAINT CASE NO. 15/2021

As per Memorandum of Understanding (MOU),

• it was agreed to impose beneficiary charges to the citizens at the following rates:-

1. Residential Unit Rs. 100/- per month.
2. Commercial Unit Rs. 250/- per month.
3. Shops in market Rs. 150/- per month from the collection of beneficiaries charges the Second Party (PHIPL) was to be paid for its services at the rate of Residential Unit Rs. 90 /- per month, Commercial Unit Rs. 90/- per month, Commercial Unit Rs. 200/- per month and shops in the markets at the rate of Rs. 125/- per month.

• Further the Second Party was supposed to collect segregated waste from the source and also provide identification and record card to every WPU’s and also to keep records of its service by taking counter signature of the beneficiaries.
• To recruit Waste Collecting personals and also to pay for their services. In no manner what so ever the first party i.e Municipality shall be responsible for payment of salary/ remuneration/ daily wages to Waste Collecting personal recruited from each respective Wards.
• The revenue generated from the WPU’s  after the survey was estimated to be Rs. 25,71,750/- out of which the Municipality shall get Rs.7,00,000/- per month.
• The sum of Rs. 34,00,000/- ( Thirty Four Lakhs) which the second party invested in the project, shall be refunded by the first party from the revenue it earns from collection of the waste beneficiary

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JUDGMENT

CONSUMER COMPLAINT CASE NO. 15/2021

• charges from the WPU’s and the municipality shall pay ( i.e  Rs. 3,09,090/- X 11 =Rs. 34,00,000/-), till the investment amount of the PHIPL is refunded.

As per the audit report No. PAG/LA/Kalimpong/2015-16/AQ-8 (Revised) dated 06.01.2017, a sum of Rs. 98,81,124/-  was paid to M/S PHIPL out of Municipal fund for the period September 2014 to September 2015.

As per BOC meeting dated 25.06.2016, it was stated that money collected from waste producing units was Rs. 47,74,566/- and the money already paid to M/s PRAYAS HI – RISE on various account was Rs. 92,55,451/- during the period  from August 2014 to September 2015. It has been admitted by the Opposite Party that initially service provided by the Complainant to the Opposite Party (Kalimpong Municipality) was appreciated for more than one year and the Opposite Party (Kalimpong Municipality) had even issued a certificate of honour to Mr. Tapan Dey, Managing Director, of the Complainant Company but here again it very pertinent to mention this certificate was issued to the Managing Director of the Complainant Company as till that period everything was working well until on scrutiny of records, the audit report, the following irregularities was revealed to the Kalimpong Municipality.

1. Not a single rupee was invested by the M/S PHIPL till the project tenure in violation the MOU. The municipality paid a total sum of Rs. 19,81,000/- to M/S PHIPL as advance on

CONSUMER COMPLAINT CASE NO. 15/2021

Proforma Invoice bills out of Municipal fund (such GTA fund , 13^th FC and State FC, etc)

2. The survey on the WPU’s on the Solid Waste Management programme was faulty and the collection of users charges as per MOU was inflated. Conducting the survey should have been done by an independent agency will before the finalization of the agreement and cross check by the Ward committee/other municipal body to deter any chance of manipulation.
3. It appears that the rate fixed was not realistic and on consideration of ability to pay by the citizen. As a result, the citizen stopped to pay service charge later. Subsequently, the same beneficiary charges had to be reduced considering the financial burden felt by resident of the Municipality.
4. The agency did not pursue the matter of distribution of service cards for proper transparency as agreed (MOU) and as such continued to raise inflated bills to the Municipality. The amount of collection as claimed by M/S PHIPL were based on faulty survey and they did not take any initiative to cure the defect and continued raised bill to the Municipality by putting up inflated bills showing number of WPU’s which were either not in many WPU are being provided with service.
5. The Advance paid to the agency was utilized for purchase of one vehicle (Mahindra Bolero Pick Up van ) and miscellaneous items for the purpose of the works on behalf of the Municipality. However, the ownership and the title of the asset purchased (vehicle and other items) was not transferred to the

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JUDGMENT

CONSUMER COMPLAINT CASE NO. 15/2021

Municipality till date which is against the standards of financial proprerty.

6. The agreement was executed on trial basis for three years without considering the performance of the private party which is irregular as the agreement was to be executed for shorter period which could be revised on satisfactory performance of the  agency.
7. The MOU is faulty on revenue sharing between the two parties. As per agreement, the Municipality was to get only 5% of total revenue collected from WPU’S WHEREAS 80-90% of collection was to be paid to the private party. The remaining part was to be paid as commission to the collector.
8. The Municipality paid excess amount of Rs. 80,81,124 – 90% of Rs. 48,54,116 – Rs. 53,412 = Rs. 37,12,420 – Rs. 97,217  = Rs. 36,15,203 for 13 months to M/s PHIPL as stated above.
9. At the time of inception period of the project, the M/s PHIPL paid Rs. 1,41,022 for Hire of vehicle and Rs. 53,412 for Fuel charges and recovered 50% of (1,41,022 + 53,412) on their bill which were paid by the Municipality after bill raised by the agency. Thus, above charges were inclusive of 50% of expenditure towards hire charge of Vehicle along with Fuel consumption and maintenance of the vehicle hired by the agency only for the month of September 2014. After that the Municipality paid regularly the whole amount of expenditure towards hire charge of Vehicle along with Fuel consumption and maintenance of the vehicle hired by the agency.

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JUDGMENT

CONSUMER COMPLAINT CASE NO. 15/2021

As per agreement, the Second Party i.e., M/S PHIPL shall bear the labour cost for door-to-door waste collection from Users i.e ., households & commercial places and Salary/house rent of Supervisor & Director. But the above costs were reimbursed from Municipality illegally.

         It has been admitted in para 9 of the Written Version that the pending bill should be cleared to the Complainant Company after verification by the standing Committee and Accounts Section and when on verification it was found that more than the required amount was already paid to the Complainant Company by the Opposite Party for its work. Letter of representation were addressed to the Opposite Party by the Complainant Company but as there was no dues to be paid to the Complainant Company, the Opposite Party did not react to the said letters sent to the Opposite Party. Further, the Agreement was discontinued w.e.f. 01.10.2015 after discussion with M/S PHIPL  due to unsatisfactory performance of the house-to-house collection of waste as per resolution BOC dated 17.09.2015.

So they have prayed for dismissal of the suit.

   Both the parties have filed their Evidence-in-Chief. It appears from the Written Argument filed by the Complainant that the Complainant is a consumer within the meaning of  section 2 (B) of Consumer Protection Act and also the Opposite Party is a municipal body engaged in providing necessary committee which includes solving of waste disposal problems of Kalimpong town. The Opposite Party was desirous of solving the subject matter of dispute. Whereas, on the other hand of

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JUDGMENT

CONSUMER COMPLAINT CASE NO. 15/2021

the Company deals with waste disposal having expertise and good knowledge in the field was approached by the Opposite Party to provide service relating to waste disposal management  and the said offer was accepted by the Complainant on certain terms and conditions.

     The Complainant Company entered into Memorandum of  Agreement dated 27.05.2014. The Complainant Company has fulfilled its obligation  of waste disposal in the Kalimpong town time to time and provided all necessary services to full satisfaction to the authorities of Kalimpong and after such satisfactory performance, the Opposite Party also, issued a certificate of honor dated 07.09.2015 to the Complainant Company for its excellence in service.

Accordingly, the Complainant Company after successful completion of work assigned per month, raised invoices as per the terms and conditions of the aforesaid agreement which have been turned up by the Opposite Party with an intention to harass the Complainant Company. The Complainant affirms timely invoices have been sent in favour of the Opposite Party in terms and conditions of the agreement enumerated in the Memorandum of Agreement dated 27.04.2014 against services rendered to the Opposite Party for disposal of solid waste management and door-to-door collection of waste in Kalimpong town. It has been further held that in the Year 2014-2015 there is an outstanding due of Rs. 15,77,915/-. But, in 2015-2016 there is an outstanding due of Rs. 18,43,811/-, thus, sum total stands at Rs. 34,21,726/-.

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JUDGMENT

CONSUMER COMPLAINT CASE NO. 15/2021

  The Complainant states that on 28.09.2015, it came to the know  that the Agreement dated 27.05.2014 has been declared null and void by the Opposite Party long before its expiry and further, the Complainant Company was asked not to provide any services further in the said letter dated 28.09.2015. It was intimated and accepted by the Opposite Party that it shall undertake payment of outstanding amount soon. But, no effect till date has been given effect thereto. However, no reply was given by the Opposite Party by notice. It is held that the Opposite Party has delayed payment of outstanding amount for more than 6 Years below. Till date it failed to have any perspective date of making payment and clears dues of the Company for an amount of Rs. 34,21,726/- along with interest for delayed period @ 18 % per annum to be calculated from the date of default as on date. So, it has been submitted that all the above facts that the
Complainant Party is a consumer within the meaning of Consumer Protection Act, 2019 and this renders the instant as one with a strong foundation having valid reasons and evidence and as such the Complainant deserves to get Rs. 34,21,726/- in addition to interest @ 18% per annum thereon amounting to Rs. 44,85,000/- and Rs. 5,00,000/- for harassment and Rs. 1,07,991/- for the cost of the case.

   It has been stated by the Opposite Party in the Brief Notes of Argument that the Opposite Party being the Municipal Body engaged in providing necessary community service which includes the Complainant in solving of waste disposal problems of Kalimpong town and has been carrying on its business from Kalimpong.

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JUDGMENT

CONSUMER COMPLAINT CASE NO. 15/2021

  The Complainant is a Managing Director representing PRAYAS HI-RISE INFRASTRUCTURE.

  The Opposite Party, Kalimpong Municipality has failed to release the dues for providing service for comprehensive solid waste management in Kalimpong Municipality area from 01.08.2014 to 30.09.2015 as per Memorandum of Agreement dated 27.05.2014 executed between the
Complainant and the Opposite Party.

   The Complainant has done work as a consumer, the Opposite Party Kalimpong Municipality did not raise any Questionnaire. Rather accepted that the Complainant has done the work on the basis of the terms and conditions.

   Therefore, the Complainant is entitled to get the agreed amount in terms of work done by it. So, the plea of denial in law as per Doctrine of Approbate and Reprobate is not tenable. The Opposite Party is under obligation to pay Rs. 34,21,726/- for the work done in terms of agreement to the Complainant.

     The Complainant admittedly did work under the Opposite Party. They have submitted the amount deserved in terms of condition made with the Kalimpong Municipality. But, the Kalimpong Municipality cannot deny to make payments as entitled to under law. The Complainant shall get the amount in terms of the agreement executed by and between them. So, both the parties are bound to follow the agreement. Now the claim of the Complainant to the tune of Rs. 34,00,000/- (Rupees Thirty Four Lakhs) is justified and enforce in law.

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JUDGMENT

CONSUMER COMPLAINT CASE NO. 15/2021

The Opposite Party -Kalimpong Municipality remains absent all the time, even several opportunities has been given to them  to sort out amicably across the table, rather they shied away for making such payment. Even they did not appear the court to counter allegation of the Complainant. Naturally, this Commission has no other option save and except to bank upon the statement of the Complainant. The Complainant admittedly has done the work. So, their claim is justified. Therefore, they are entitled to get a sum of Rs. 34,00,000/-. This Commission is not agreed to pay compensation of Rs. 5,00,000/- but, they will get compensation of Rs. 50,000/-( Rupees Fifty Thousand only) for harassment, mental agony and cost of the case. After work done by the Complainant the Opposite Party can not deny to pay the said amount of Rs. 34,21,726/-.

   Despite giving several opportunity, the Opposite Party neither has appeared in this case nor resolved the matter in consolation by and between the parties. The Learned Commission has no other option save and except to dispose of the case on the basis of the materials available on record exparte. On hearing the Learned Counsel for the Complainant and after going through the records the order is passed exparte.

    In the result, the Complainant shall get a sum of Rs. 34,21,726/-.for the work done by the Complainant against the Opposite Party –Kalimpong Municipality, who shall pay the same within one month from the date hereof. Failing which the Complainant is at liberty to file Execution Case. In the event of failure to make payment of the awarded amount, the Opposite Party shall pay interest @ 15% per annum thereon till realization of the same.

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JUDGMENT

CONSUMER COMPLAINT CASE NO. 15/2021

Accordingly, It is,

                                               O.R.D.E.R.E.D.

    That the case succeeds exparte. The Award Debtor, Kalimpong Municipality is hereby directed to pay a sum of Rs. 34,21,726/-. ( Rupees Thirty Four Lakhs Twenty One Thousand Seven Hundred and Twenty Six) and to pay further a sum of Rs. 50,000/- (Rupees Fifty Thousand) towards compensation.

   The Opposite Party Kalimpong Municipality shall pay interest @ 15% per annum on the awarded amount. Let a copy of this order be given to the Complainant and the Opposite Party- Kalimpong Municipality. In the event of failure of the Opposite Party- Kalimpong Municipality to receive the same, one copy of the awarded amount be sent to the Chairman, Kalimpong Municipality, having its office at Upper Cart Road, Kalimpong.

C.C-15/2021

Order No: 16

 Dated:- 15.02.2023

 Today the instant case is fixed for filing brief note of argument by the Complainant and to serve its copy to the O.Ps.

 Ld. Advocate for the Complainant filed B.N.A along with a copy of it.

 The O.Ps are absent without any steps.

 Heard Argument in length in absence of the O.Ps.

 Ld. President of this Commission has prepared the final order and Ld. Member( Female) has concurred the same  and the Final Order has been passed today.

But, I being the Member of this Commission, do not agree with the decision of the Ld. President and the Ld. Member ( Female) as passed by them in this case and I am not inclined to sign on the  final order as  passed by them  therefore I pass a dissent order( Final Order) as per Sec-39(3) of the C.P. Act, 2019 after setting forth the point of differences as enumerated below.

Point of Differences

1. The Complainant, being a Private Limited Company, is not a Consumer as per the definition of “Consumer” as provided in the C.P. Act,2019.
2.  The dispute involved in the case is not a consumer dispute at all.

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C.C-15/2021

3.  The Opposite Parties are not deficient in providing service towards the Complainant and there is no question of such deficiency as the Complainant did not hired or availed of any kind of service on consideration from the O.Ps.
4. The Complaint is not maintainable in the eye of law.
5.  The case barred by limitation as per the provision of Sec-69 of the C.P. Act, 2019.
6.  The complainant is not entitled to get any kind of relief/s as sought for.

      Be it noted that the Final order is prepared by Ld. President and Ld. Member( Female) concurred the Final order/ Judgment made by the Ld. President and she put her signature on the same. The case record has been placed to me after writing the Final Order by the President and after making signature of the ld. President and Ld. Member( Female). 

    Therefore, there is no scope for hearing on such point or points of differences, as the Final Order has already attained majority view, and my  final order be treated as Minority Order and be kept with the record. 

 Accordingly, the Case is disposed of.

................................................

(Siddhartha Ganguli, Member)

District Consumer Disputes Redressal Commission, Darjeeling

24, M.C.Road, Chota Kakjhora, Darjeeling

 P.O & Dist: Darjeeling, Pin- 734101

        Complainant                             Vs                            Opposite Parties

 Prayas Hi- Rise Infrastructure                             1. Kalimpong  Municipality,

 Private Ltd, a Company incorporated                    Having its office at :-

 under the provisions of the Companies                Upper Cart Road,

 Act, 1956, having its registered office                   P.O: Kalimpong

 at 206, Bidhan Sarani, Room No:4                         Dist:- Darjeeling

, Kolkata-700006,Represented by                           Pin- 734301.

 its Managing Director, Mr. Tapan Dey,            2.  The Chairman,

 working for gain at 206, Bidhan Sarani,                Kalimpong Municipality,

Room No:- 04, Kolkata- 700006.                             Having its office at :-

                                                                                      Upper Cart road,

                                                                                      P.O: Kalimpong,

                                                                                      Dist: Darjeeling,

                                                                                     Pin- 734301.

                                                                               3.   The Executive Officer,

                                                                                     Having its office at:-

                                                                                     Kalimpong Municipality,

                                                                                     Upper Cart road,

                                                                                     P.O: Kalimpong,

                                                                                     Dist: Darjeeling,

                                                                                     Pin- 734301.

                                                                                                            Cont......P/2

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C.C- 15 of 2021

                                                                            4.  The Health Officer,

                                                                                 Kalimpong Municipality,

                                                                                Having its office at:-

                                                                                Kalimpong Municipality,

                                                                                Upper Cart road,

                                                                                P.O: Kalimpong,

                                                                                Dist: Darjeeling,

                                                                                Pin- 734301.

 Date of Filing:-  01.11.2021

 Date of Disposal:-  15.02.2023

Present:-       Syed Nurul Hossain................ Hon’ble President.

                       Mr. Siddhartha Ganguli.......... Hon’ble Member.

                      Mrs. Bhawana Thakuri............ Hon’ble Member.

 Ld Advocate for the Complainant:-Smt. Mukulika Saha, Kunal Saraogi,

 Ld. Advocate for the Opposite Parties:- Sandeep Rai

F I N A L     O R D E R

Dissent Order

      Siddhartha Ganguli ( Member):- An application has been filed by the complainant under section 35 of the C.P. Act 2019 alleging deficiency in service against the O.Ps, relating to non- releasing dues for providing service to the O.Ps for comprehensive solid

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C.C- 15 of 2021

       waste management within the area of Kalimpong Municipality from the period 01.08.2014 to 30.09.2015 as per Memorandum of Agreement, dated 27.05.2014 therefore, the complainant filed this petition of Complaint before this Dist. Commission praying for a direction to be given upon the O.Ps for disbursing of the outstanding dues amounting to Rs 34,00,000/-( Rupees Thirty Four Lakhs only) as per the terms and contract of  the above mentioned  M.O.A and further prayed for compensation  to the tune of Rs. 5,00,000/-( Rupees Five Lakhs Only).

      The gist of the case of the complainant is that the complainant is a Private Limited Company, having its registered office in Kolkata, as mentioned herein above in the cause title to the case, which is carrying on business and claims to be a Consumer as per the definition of “Consumer” as provided in the C.P.Act, 2019.

      The Complainant stated in the Complaint that the O.Ps were desirous of  solving waste disposal problems of Kalimpong town and was looking for ways for solving the said problems, whereas on the other hand the Complainant`s Company have expertise and good knowledge in that field and the O.Ps approached to the Complainant to provide service relating to waste disposal management and said the offer was accept by the complainant`s company on certain terms and conditions and accordingly the Complainant`s Company entered into a Memorandum of Agreement with the O.Ps on 27/05/2014 for 3 years for providing service for waste management for the Kalimpong Municipality Area as stated in details in the said Memorandum of Agreement.

      The complainant further stated that pursuant to the said agreement, the Complainant`s Company duly fulfilled its obligations of waste disposal in the Kalimpong Town from time to time and provided all the necessary services

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C.C- 15 of 2021

to the O.Ps and later the O.P No:- 2 to 4 issued a certificate of honour on 07.09.2015 in favour of the Complainant`s Company for its excellent and satisfactory services.

      Further, Complainant stated that it raised timely invoices in favour of the O.Ps as per the terms and conditions of payments, as enumerated in M.O.A dated 27.05.2014,which was amounting to Rs. 34,21,726/( Rupees Thirty Four Lakhs Twenty one thousand Seven Hundred Twenty Six only)  and further the Complainant stated that as on date an amount of Rs 34,00,000/-( Rupees Thirty Four Lakhs ) approximately was due till the presentation of the case and the Complainant is entitled to get such outstanding amount along with interest from the O.Ps.

      Further, it is stated by the complainant that on or about 28.09.2015 the Complainant was shocked and surprised to know that the O.Ps unilaterally cancelled the agreement and declared it as null and void before its expiry and the Complainant`s Company was asked not  to provide any further service.

      The Complainant was intimated by a letter dated 28.09.2015 and the O.Ps undertook to make payment of outstanding dues, but the allegation of the complainant is that till the date of presentation of the case, the O.Ps did not disburse the outstanding dues as stated above.

      The complainant wrote several letters in the form of representation from 28.07.2015 to 09.02.2017 and lastly on 18.04.2019 requesting the O.Ps to disburse the dues as mentioned herein above, but the O.Ps did not pay any heed to and consequent to which Complainant’s company is constrained to lodge this Consumer Complaint before this Dist. Commission alleging deficiency of service, negligence etc and prayed for the reliefs as stated herein above.

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C.C- 15 of 2021

 The Complainant along with the Complaint petition filed the following documents(Xerox) in order to prove its case.

1. Certified copy of the Resolutions passed at the meeting of the Board of Directors, wherein Mr. Tapan Dey was authorized to appoint Advocates, solicitors and intermediaries in connection with legal cases to be initiated and execute and sign Vokalatnama and other purposes.
2. Copy of Memorandum of Agreement dated 27.05.2014
3. Copy of Certificate of Honour issued in favour of the Complainant by the O.Ps dated 07.09.2015.
4. Copy of tabulation of monthly invoice , 02 pages.
5.  Copy of letter of the Chairperson, Kalimpong Municipality, dated 28.09.2015.
6.  Copy of letters of the Complainant, dated 18.06.2015, 28.07.2015, 16.09.2015, 07.10.2015, 11.02.2016, 17.03.2016 and 09.02.2017 addressed to the Chairman, Vice Chairman and the Administrator of Kalimpong Municipality successively, in which the Complainant requested them for releasing of outstanding dues.
7. Copy of letter of Ld. Advocate Fasiur Rahaman Molla, dated 16.04.2018 addressed to the Chairman, Kalimpong Municipality.
8. Copy of letter of the Complainant, dated 16.04.2019 addressed to the Chairman, Kalimpong Municipality, in which the Complainant requested him for releasing the outstanding dues.

It is seen from the case record that the Consumer Complaint was filed on 01.11.2021 and it was admitted on 26.11.2021.

It is further seen that the Complainant filed one supplementary affidavit along with copy of judgment of Hon’ble Supreme Court passed in Suo Motu W.P No: 03/2020( Civil),In Re:- Cognizance for Extension of Limitation, due to outbreak of Covid-19 Virus and subsequent orders

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of the Hon’ble Supreme Court, passed in M.A- 665 of 2021, arisen in C/W S.M.W.P No: 03/2020 where in the Hon’ble Supreme Court was pleased to extend the period of limitation for the surge of Covid-19 pandemic and office order of the Hon’ble N.C.D.R.C, being No: 95 of 2021, dated 29.09.2021.

Further, it is reflected from the order sheets and other materials on record that all the O.Ps entered their appearance through their Ld. Advocate on 22.03.2022 and they filed Written Version on 25.04.2022 along with some copy of documents (Xerox) by annexure.

In the Written Version, the OPs denied all the material allegations levelled against them, save and except the admission made therein and stated that the case is not maintainable and this Commission has no jurisdiction to entertain and adjudicate upon the dispute involved in the complaint as it is not a consumer dispute at all and does not fall within the ambit of the provisions of the C.P. Act, 2019.

      Further, the O.Ps stated that the case is barred by the law of limitation and the case is false, frivolous and vexatious and therefore it is liable to be dismissed.

    Further, the O.Ps in their Written Version stated that there was an agreement made by and between the Complainant and O.Ps dated 27.05.2014 for waste disposal management of the Kalimpong Municipal area and both the parties to the agreement entered into an agreement with certain terms and conditions as mentioned therein and it is stated by the O.P.s that as peer the M.O.A , it was agreed  to impose beneficiary charges to the citizens at the following rates-

1. Residential unit Rs.100/ p.m.
2.  Commercial unit Rs.250/ p.m
3.  

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3. Shops in marketsRs.150/p.m, from the collection of beneficiaries charges the second party(PHIPL),i.e the Complainant was to be paid for its services at the rate of Residential units Rs.90/ p.m, Commercial units Rs.200/ p.m and shops in the markets at the rate of Rs.125/p.m.

Further, the second party was supposed to collect segregated waste from the source and also to provide identification and record card to every W.P.U’s and also to keep records of its service by taking counter signature of the beneficiaries. To recruit waste collecting personals and also to pay for their services. In no manner what so ever the first party i.e the Municipality shall be responsible for payment of salary/ remuneration /daily wages to waste collecting personnel recruited from each respective wards. The revenue generated from the W.P.U’s after the survey was estimated to be Rs.25,71,750/( Rupees Twenty Five lakhs Seventy One thousand Seven hundred Fifty only) out of which the Municipality shall get Rs. 7,00,000/( Rupees Seven Lakhs only) per month. The sum of Rs.34,00,000/( Rupees Thirty Four Lakhs only) which the second party invested in the projectshall be refunded by the first party from the revenue it earns from collections of the waste beneficiary charges from, the W.P.U’s and the Municipality shall pay Rs.3,09,090/( Rupees Three LakhsNine thousandNinety only) per month out of this to the PHIPL for 11 months, i.e Rs.3,09,090/x11=Rs. 34,00,000/ till the investment amount of the PHIPL is refunded.

It is the contention of the O.Ps that as per the Audit Report, being No:- PAG/LA/Kalimpong/2015-16/AQ-8(Revised) dated 06.01.2017 a sum of Rs. 98,81,124/( Rupees Ninety Eight Lakhs Eighty Onethousand One hundred Twenty Four Only)was paid to M/S PHIPL , i,e to the Complainant out of Municipal fund for the period September 2014 to September 2015 and a detailed table has been inserted in the W/Vwhich depicted the period wise payments.

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Further, as per BOC meeting dated 25.06.2016, it was stated that the money collected from Waste Producing Units was Rs. 47,74,566/( Rupees Forty Seven Lakhs Seventy Four Thousand Five Hundred Sixty Six Only) and the money already been paid to the Complainant’s Company on various accounts was Rs. 92,55,451/( Rupees Ninety Two Lakhs Fifty Five Thousand Four Hundred Fifty One only) during the period August 2014 to September 2015. A certificate of honour was issued to the Complainant’s Company at the initial stage, but after the scrutiny of records and publication of the Audit report several anomalies were detected, which have been elaborately mentioned in the Written Version and it is she contention of the O.Ps that the Municipality has paid excess to the Complainant’s Company and again it is mentioned categorically in a table, which depicted the phase wise collection of money by the Complainant’s Company as well as payment made by the O.Ps. Ultimately finding some irregularities as mentioned above and others, which are specifically mentioned in the Written Version, the O.Ps Municipality have decided and resolved by a Board Meeting dated 17.09.2015 to discontinue the Contract made between the Complainant’s Company and the O.Ps Municipality w.e.f 01.10.2015 and the said factum was informed to the Complainant by a letter dated 28.09

1. and the O.Ps informed in good faith that the pending bills would be cleared to the Complainant’s Company after verification by the Standing Committee and Accounts Section and when on verification it was found that more that the required amount was already paid to the Complainant’s Company by the O.Ps and therefore, the O.Ps prayed for dismissal of the case.

 The O.Ps filed the following Xerox documents in support of their Written Version by making annexure:-

1. Copy of Audit query dated 06.01.2017 of Audit Officer.
2.  

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2. Copy of statement of Revenue Vis-a Vis expenditure incurred by the Municipality on PPP Project duly signed by the Audit Officer.
3. Authorization letter in the Name of the O.P No:3 duly signed by the other O.Ps.

During hearing the Complainant filed Written Examination-in- Chief by way of affidavit and submitted the same documents as mentioned herein before in order to prove its case.  No set of questionnaire has been filed by the O.Ps in order to cross examination of the Chief submitted by the Complainant.

On the other hand, The O.Ps also filed Written Examination- in- Chief by way of affidavit.  The Complainant also did not put any set of questionnaire against the Chief of the O.Ps.

The Complainant as well as the O.Ps filed their respective Written Arguments( B.N.A) as mandated by the Law.  

 From the Complaint Petition, Written Version of the O.Ps, Evidence adduced by the parties and other materials on record, the following points have been framed:-

1. Is the Complainant, being a Private Limited Company, a Consumer as per the definition of “Consumer” as provided in the C.P. Act,2019?

      2.  Is the dispute involved in the case a consumer dispute?

the Complainant?

      4.  Is the Complaint maintainable in the eye of law?

        5.  Is the case barred by limitation as per the provision of Sec-69 of

             the C.P. Act, 2019?

6. Is the complainant entitled to get any kind of relief/s as sought for?

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DECISION WITH REASONS

      All the points have been taken together for the sake of brevity, avoidance of repetition of facts and also for convenience for discussion.

       It is evident from the evidence of the Complainant and as well as the O.Ps and other documents annexed by the parties that the Complainant, being a Private Limited Company, was engaged by the O.Ps by a Memorandum of Agreement dated 27.05.2014 for waste disposal management of Kalimpong town on certain terms and conditions as mentioned therein for 3 years and the Complainant’s Company in pursuant to the said agreement, done works and performed its obligations of waste disposal in the Kalimpong Town from time to time.

The O.Ps ( O.P No:- 2 to 4) issued a Certificate of Honour on 07.09.2015 in favour of the Complainant`s Company for its excellent and satisfactory services.

      Further, Complainant stated in his evidence that it raised timely invoices in favour of the O.Ps as per the terms and conditions of payments, as enumerated in M.O.A dated 27.05.2014,which was amounting to Rs. 34,21,726/( Rupees Thirty Four Lakhs Twenty one thousand Seven Hundred Twenty Six only)  and further the Complainant stated that as on date an amount of Rs 34,00,000/-( Rupees Thirty Four Lakhs ) approximately was due till the presentation of the case and the Complainant is entitled to get such outstanding amount along with interest from the O.Ps.

      Further, it is evident from the evidence of the parties that the said Memorandum of Agreement was unilaterally cancelled by the O.Ps on 17.09.2015 and the said decision was intimated to the Complainant by a letter dated 28.09.2015 and the O.Ps undertook to make payment of

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      outstanding dues, but the allegation of the complainant is that till the date of presentation of the case, the O.Ps did not disburse the outstanding dues as stated above.

       It is further evident from the evidence of the parties that the complainant wrote several letters in the form of representation from 28.07.2015 to 09.02.2017 and lastly on 18.04.2019 requesting the O.Ps to disburse the dues as mentioned herein above, but the O.Ps did not pay any heed to and consequent to which Complainant’s company is constrained to lodge this Consumer Complaint before this Dist. Commission alleging deficiency of service, negligence etc and prayed for the reliefs as stated herein above.

       On the contrary, it is found from the evidence of the O.Ps that the Complainant in contravention of the said agreement received more amount than agreed to and certain anomalies were found by them and such discrepancies were first detected by an Audit Report as mentioned herein above and consequent to which the O.Ps were bound to cancel the M.O U by taking a resolution on 17.09.2015, which was duly informed by the O.Ps to the Complainant’s Company on 28.09.2015.

       Now the question arises, whether the Complainant is a Consumer?  

As per Sec- 2(5) of the C.P. Act, 2019,

“Complainant” means-

1. A Consumer; or
2.  Any voluntary consumer association registered under any law for the time being in force.
3. The Central Government or any State Government; or
4. The Central Authority;
5. One or more consumers, where there are numerous consumers having the same interest;
6.  

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6.  In case of death of a consumer, his legal heir or legal representative;
7. In case of consumer being a minor, his parent or legal guardian.

Further, as per Sec 2(7) of the C. P. Act, 2019, “Consumer” means- any person who-

1.  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
2. 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 that 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.

      Considering the above definitions provided in the C.P. Act, 2019, my view is that the Complainant, being a Private Limited Company, is not a Consumer at all. Here the Complainant was doing profit making business and indulged in business activities and had been engaged by the O.Ps for waste disposal management within the Municipal area of Kalimpong

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      Municipality pursuant to a M.O.U as referred above. I have gone through the contents of the agreement and am of the opinion that the transaction or the agreement is a commercial in nature. It is the settled principle of law that the commercial users cannot maintain consumer complaint. The Commercial activities are excluded from the purview of the Act and it has been specifically mentioned in the C.P. Act, 2019.

       It is specifically stated in the “Explanation” appended to the definition of Consumer that 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.

       Certainly not the present Complainant, being a Private Limited Company, was incorporated for the purpose of earning its Members’ livelihood by means of self employment, but it was incorporated for doing commercial activities, which the Complainant confessed in its evidence. So, obviously the present Complainant is not a Consumer in terms of the definition of Consumer.

       In a case, titled as Sunil Kishanlal Soi Vs Shirish Girish Dixit, reported in 2017(2) C.P.R- 52(N.C), the Hon’ble National Commission categorically held that commercial users cannot maintain Consumer Complaint.

       Again, in DDA Vs Gyanshyam Dass , reported in 2017(2)C.P.R- 510      ( N.C), Hon’ble National Commission was pleased to hold the view that the  Commercial users cannot maintain consumer Complaint.

      Further, in a catena of judgments the Hon’ble National Commission or the Hon’ble Supreme Court reaffirmed their view that the commercial activities are ousted from the jurisdiction of Consumer Fora.

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       Further, in a landmark judgment titled as Laxmi Engineering Works Vs P.S.G Industrial Institute, reported in (1995)3-SCC-583, the Hon’ble Apex Court categorically explained the point “Commercial Activity”  and held that the Commercial users are not consumers.  

      Again, In Unisource Trading ( India ) Pvt. Ltd  Vs Continental Airline Cargo( United Cargo and Continental cargo) and Anr, reported in 2017(2) C.P.R-354 ( N.C), the Hon’ble National Commission held the view that Complaint filed by filed by Private Limited Company, which is not a natural  person,  indulging in commercial activity , does not fall within the category of Consumer as defined in the Act and it is specifically held that Complainant’s Company has no locus standi to file Consumer Complaint.

     Again, it is held by the Hon’ble National Commission in M/S Rakesh Projects Pvt. Ltd Vs Brys International Pvt. Ltd & Anr, reported in 2017(2) C.P.R-148( N.C) that, Company cannot maintain Consumer Complaint.

     Further, from the evidence adduced by the parties as well as from the copy of the M.O.A, it is as clear as crystal that the nature of the transaction was  for commercial activity and the Complainant’s Company did not provide any service  to the O.Ps. Rather, the O.Ps sought service, which is commercial in nature, from the Complainant’s Company.

      Further, it has been held by the Hon’ble Supreme Court in Shrikant G. Mantri Vs Punjab National Bank, reported in 2022(2) C.P.R- 2016( S.C) that in order to maintain a Consumer Complaint U/S 2(1)(d) of the Consumer Protection Act, 1986, the legislative intent is to keep Commercial transactions out of preview of the Act and at the same time , to give benefit of said Act to a person who enters into such commercial transactions, when he uses such goods or avails such services exclusively for the purposes of earning his livelihood by means of self employment.

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       When a person avails a service for a commercial purpose, to come within the meaning of  “Consumer” as defined in the Act, he will have to establish that services were  availed exclusively for the purposes of the earning his livelihood by means of self employment.  There cannot be any strait- jacket formula and such a question has to be decided in facts of each case, depending upon evidence placed on record.  Appellant was already engaged in profession of stock broker, much before he availed of service of over draft facility from the Respondent Bank. Terms “Services availed by him”, “exclusively for the purpose of earning his livelihood”, and “by means as of self employment” will have be given its meaning, as intended by Legislature.  Relations between Appellant and Respondent is purely “Business to Business” relationship and as such, the transactions would clearly come within ambit of “commercial purpose” .

      Again, in a case titled as Karnataka Power Transmission Corporation Vs Ashok Iron Works (2009)3 SCC-240 the Hon’ble Supreme Court was pleased to hold that while defining “person” in sec- 2(1) (m), of the General Clauses Act, 1897 the Legislature never intended to exclude a juristic person , like Company. That apart the General Clauses act, 1897, in sec-3(42) ) thereof defines the word “person” stating that the said word shall include any company or association or body of individuals whether incorporated or not. It was held by the Apex Court that a Company incorporated under the Companies Act, is a person within the meaning of Sec-2(1)(d) r.w Sec- 2(1)(m) of the Act. Accordingly, Company may file a Complaint under the Act. In other words, a Company may sue or be sued.

      But, in view of the various judgments of the Apex Court as well as the Hon’ble National Commission, it is clearly held that when the transaction is purely a commercial in nature and the “service” has direct nexus with

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      the profit making activities, then the Company cannot maintain a Consumer Complaint. A Company may file any Consumer Complaint if there is no direct nexus exists between the service opted with the profit generating process of the Company. For example, if a car is purchased by the Company, which deals with manufacturing of biscuits, for the exclusive use of its Managing Director for to and fro journey from his office to home, and if the car subsequently got defective then the Company may sue against the manufacturer/ dealer, as because the car was purchased and meant to use for the Managing Director for to and fro journey from his office to home and it has no direct nexus with the profit generating process of the Company.

       Further, after through scrutinization of the evidence and other materials on record, it is found that the element “consideration” is lacking over here, which is a sine qua non element for becoming a consumer.

      From the above discussions, it is abundantly clear that the Complainant’s Company is not a Consumer within the definition “Consumer” as provided in Sec-2(7) of the C.P. Act, 2019 and it is palpably clear that the nature of dispute is purely a commercial dispute, which cannot be adjudicated by the Consumer Fora and the case is not maintainable in the eye of law as per the statute and ratio of the above noted referred case decisions and the dispute is not a consumer dispute at all, and on this score alone the case may be dismissed.  

      Furthermore, the Complaint’s Company did not provide any service to the O.Ps Company, rather the O.Ps sought for service from the Complainant’s Company and one M.O.A was signed by and between the parties, as referred above, for doing certain works and both the parties were agreed to under certain terms and conditions , which was later on cancelled unilaterally. The nature of transaction was purely a commercial transaction, which cannot be adjudicated by this Consumer Commission.

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      The Complainant’s Company should have ventilated its grievance before the Commercial Court or any competent Foram of Law having proper jurisdiction for redressal as the nature of dispute is purely a commercial dispute, if not otherwise barred.

And I am of the view that as the case is not maintainable, the question of deciding of deficiency of service or negligence caused by the O.Ps does not arise at all and the Complainant’s Company is not entitled to get any sort of relief/s from this Dist. Commission.

      Further, upon scrutiny of the evidence of the parties once again and through consultation of the entire case record it is found that the cause of action of the case was accrued on 28.09.2015 as and when the O.Ps unilaterally cancelled the M.O.A after taking a resolution on 17.09.2015, which was intimated to the Complainant by a letter vide Memo No:- 8408/K.M dated 28.09.2015. Therefore, as per the provision of Sec-69 of the C.P. Act, 2019, the complaint should have been filed by the Complainant within the period of two years from the date of accrual of cause of action, i.e on or before 27.09.2017. It is further seen from the case record that the Complainant did not file any petition U/S- 69(2) of the C.P. Act, 2019 praying for condonation of delay, rather the Complainant had filed one supplementary affidavit and stated that the Complainant had made several communications with the O.Ps and sent legal notice to the O.Ps and for which delay was caused and took the  plea of the case decisions of Hon’ble Supreme Court, passed in S.M.W.P No: 03/2020( Civil) and subsequent orders of the Hon’ble Supreme Court passed in M.A- 665/2021, passed due to the outbreak of the Covid-19 pandemic and subsequent surge of the virus and wanted to get the benefit of the said case decisions.

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       In my view the present Complaint is barred by the limitation as because the Complainant should have filed the case on or before 27.09.2017. Much before the Covid- 19 Pandemic started, the time limit for filing case was expired. Therefore, the Complainant should have not to be given the benefit as laid down by the Hon’ble Apex Court in the above referred cases, which extended the time limit for filing case, applications, suits etc on account of Covid-19 virus.

       It is a settled principle of law that a time barred Complaint cannot be entertained, unless delay is condoned.

       In National Insurance Co. Ltd Vs Biswadeb Koley & ors, reported in 2020(3)C.P.R-379(N.C) it has been held by the Hon’ble National Commission that a complaint barred by limitation must be dismissed, unless delay is condoned.

      Further, it is also the settled principle of law that no amount of correspondence made between the parties can enhance the limitation period for filing Complaint. It is held by the Hon’ble National Commission in Prem Devi vs  Delhi Development Authority, reported in 2020(3)C.P.R( N.C) that  correspondence made cannot extend limitation.

      Further, the Hon’ble Supreme Court on 06.05.2020 in C.L.P India Pvt. Ltd vs Gujarat Urja Vikash Nigam Ltd & Anr, while deciding an appeal in an electricity related case held that, it has been consistently ruled by the Supreme Court that repeated letters or exchange of communications do not extend the period of limitation, provided by law.

 Further, it is held by the Hon’ble National Commission in Surender Sing Mann Vs M/S Tata AIG Life Insurance Co. Ltd. & Anr, reported in 2022(4) C.P.R-47( N.C) that limitation once started to run cannot be shifted by

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      making representation. The Complainant has not filed any application for condonation of delay. As such the complaint is liable to be dismissed as time barred.  

       In view of the above propositions of law, I am of the view that the present Consumer Complaint initiated by the Complainant’s Company is barred by limitation and therefore it is liable to be dismissed.

       It is  further to be stated that the burden of proving the case lies upon the Complainant only and in my view the complainant’s Company has miserably failed to prove its case and therefore it deserves to be dismissed.

       Considering the entire materials on record, I am of the view that the present Complainant is not a consumer, as per the definition and meaning of “Consumer” as laid down in the  C.P. Act, 2019 and the case is barred by limitation  and therefore it is liable to be dismissed.

       All the points have been discussed elaborately and go against the Complainant.

Hence,

 The Consumer Complaint, being No: C.C-15 of 2021 is dismissed on contest, but without any cost.

 Let a free copy be supplied to each of the parties as per the provision of the C.P Act, 2019 and Regulation No: 21 of the C.P( Consumer Commission Procedure) Regulations, 2020.

 Accordingly, the case is disposed of.

 Typed and Corrected by me

Siddhartha Ganguli, Member