Date of filing :1.2.2019
Judgment : Dt.13.11.2019
Mrs. Sashi Kala Basu, Hon’ble President
This petition of complaint is filed under section 12 of C.P.Act, 1986 by Bengal Telecommunication (P) Ltd. alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) Third Law Media Pvt. Ltd., (2) Mr. Anirban Dey, (3) Mr. Sougata Majumder and (4) Mr. Suvankar Chakraborty.
Case of the Complainant, in short, is that Complainant is a Pvt. Ltd. Company and deals with sales of electronic goods and also runs retail outlet of the electronics goods and items under the business chain namely “United Digital”. Opposite Party No.1 is also a Pvt. Ltd. Co. and is engaged in the business of point of sales software, billing software development, installation and distribution and OP No.2 to 4 are three Directors of the OP No.1. Complainant was looking for development deployment of point of sale at different locations of new retail stores of Complainant and the OPs on their approach sent a draft of scope of the work template, giving a demonstration at the office of the Complainant. Complainant asked the OP to incorporate the tally system in such software as the entire billing of the Complainant is done through such computer accounting system. On the assurance of the OPs, Complainant confirmed the project and the price for such development and deployment of point of sale was fixed at Rs.6,49,000/-. Complainant paid a sum of Rs.4,42,500/- in favour of the OPs. But the OPs could not complete the entire scope of the work within the stipulated time frame. Even after waiting for a considerable period, Complainant did not receive tally adaptability which was a vital part of such software. OPs without completing the entire work started pressurizing for payment of the remaining amount. But the OP No.1 was only entitled to the said balance after successful completion of the work. So, Complainant sent a notice on 29.11.2018 through its Ld. Advocate to the OP No.3 and terminated the agreement entered into between the Complainant and the OP No.1. In reply to the said notice, OP No.2 made certain false, frivolous statement and denied to refund the money paid by the Complainant. The services rendered or promised to be rendered by the OPs was for the personal use of the Complainant and not for resale and thus Complainant is a Consumer under the provision of Consumer Protection Act and for this the Complainant has prayed for directing the OPs to refund the earnest money of Rs.4,42,500/- to the Complainant, to pay Rs.50,000/- for loss of business and tarnishing of the goodwill of the Complainant and to pay Rs.10,000/- as litigation cost.
Complainant has annexed with the complaint working template draft towards POS, ERP of sale for United Digital, a letter sent by the OP to the Complainant regarding the confirmation of POS software development, copy of the notice dt.29.11.2018 sent by the Complainant to the OP through its Ld. Advocate and the reply sent by the OP to the Complainant dt.7.12.2018.
On perusal of the record, it appears in spite of service of notice also through paper publication, no step was taken by the OPs and thus vide order dt.1.8.2019, the case was directed to proceed ex-parte. So, the following points require determination :
- Whether the Complainant is a consumer?
- Whether the Complainant is entitled to the relief as prayed for?
Decision with reasons
Both the points are taken up together for a comprehensive discussion and decision for the sake of convenience and in order to avoid repetition.
It is apparent from the complaint and the documents annexed therein that the Complainant is a Pvt. Ltd. Co. It deals with sales of electronic goods, and runs retail outlets of electronic goods and items under the business chain namely United Digital. So, the question which requires to be determine is whether the Complainant, a Company having business chain, is a consumer within the definition as provided under the provision of Consumer Protection Act?
During trial, the Complainant filed examination in chief in support of its claim and paragraph No. 10 of the said affidavit-in-chief runs as follows :
“However even after waiting for so long the Complainant did not receive ‘Tally Adaptability’ which was a vital part of such software and moreover for hosting the software, Complainant had to purchase Amazon Web Services’ for which the Complainant had to incur a recurring cost of Rs.30,000/- p.m. As the software lacked tally adaptability, Complainant had tremendous problems in running the business and had to manually bill the items sold, which is not only a cumbersome process but the same also tarnished the goodwill of the Company for still adopting centuries of ‘manual billing procedure’.
Emphasis is made on the statements about Complainant facing problems in running business as the Complainant had to manually bill the items sold to the customers. So, it is evident that the service for POS including incorporation of tally system was hired by the Complainant for the purpose of billing of the product or the items sold by the Complainant Company and not for any personal use.
In such a situation, there cannot be any doubt that the service was hired for commercial purposes and thus the Complainant cannot be a consumer within the meaning of Consumer Protection Act. It may further be mentioned that it is an admitted fact that the Complainant Company is a Pvt. Ltd. Company having number of outlets. It is a business chain. So, the business is nothing but for the purpose of gaining profit. For the specific recital made in the evidence as highlighted above, the case law of M/S Harsolia Motors vs M/s National Insurance Co. Ltd. – will not be applicable.
The application of a case law depends on the question of fact to be decided in each case. It is the purpose of each goods bought or service hired matters to determine whether it is for personal use or for the commercial purpose.
In this case service hired intended to be used directly to generate profit.
So, in such a situation, Complainant being not a consumer under the provision of Consumer Protection Act, the complaint is not maintainable and thus he is not entitled to the relief as claimed. complaint is thus liable to be dismissed.
Hence
ordered
CC/71/2019 is dismissed ex-parte.
