Delhi

North

CC/189/2017

PATHFINDERS GLOBAL PVT. LTD. - Complainant(s)

Versus

TIMES JOB CORPORATE CARE - Opp.Party(s)

NAVIN KUMAR

13 Dec 2023

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.189/2017

Pathfinders Globals Pvt. Ltd.

Through its Director,

104/107, Vardhman Capital Mall,

Shakti Nagar, Near Gulabi Bagh,

Delhi-110052.                                                 …                           Complainant

                  

Vs.

Times Job Corporate Care,

Times Business Solutions,

A division of Times Internet Ltd.

Regd. Office: 18, Darya Ganj,

New Delhi-110002.

 

Also at:

FC-6, Film City, Ground floor,

Sector: 16 A, Film City,

Noida, Uttar Pradesh-201301.                            …                          Opposite Party

 

                                                Present:        None for the Complainant.                                                                               

                                                                     None for the OP.

13.12.2023

ORDER

(Divya Jyoti Jaipuriar)

1. It is seen from the record that the Complainant is not appearing in this matter. Office has also sent the communication to the Complainant by post indicating next date of hearing. The said letter has been received back with the endorsement that “Addressee left without instruction”. We do not find any other address of the Complainant in the record to establish communication with the Complainant.

2. In view of the fact that we are not able to contact the Complainant and Complainant is also not appearing in this matter, it appears that the Complainant has either abandoned the complaint or is not interested in pursuing this complaint. In both of these situations, we cannot continue with the complaint any further and the complaint is liable to be dismissed on the ground of non-prosecution.

3.  Even on merits, it is seen from the records that the Complainant Company has alleged that OP herein has not refunded the amount after cancelling the subscription. For such alleged deficiency of service, the Complainant has filed this complaint. In the complainant, the Complainant has made two submissions- first that the Directors of the Complainant Company have incorporated the Complainant Company for earning livelihood. Second, that there is a clear admission by the Complainant that there is business to business relationship between the Complainant Company and OP Company.

4. On the pleading that the Directors of the Complainant Company have incorporated the said company for earning livelihood, we are of the opinion that the Directors of the Complainant Company are not the parties before this Commission (erstwhile Forum) in individual capacity. The test of “livelihood” is to be seen with respect to the Complainant, who is party before this Commission. As the Complainant Company is before us, we have to see that whether the expressions “livelihood” and “self-employment” are available to the Company or not. In this context, judgement of Hon’ble National Commission in the matter of M/s Shanon Restaurant Vs Emaar MGF Land Ltd. (Consumer Case No. 1867 of 2016 decided on December 1, 2016), in which Hon’ble National Commission has clearly held that the livelihood and the self-employment only relates to a natural person and not to a juristic person, is relied upon. In the said judgement Hon’ble National Commission has held as under:

“5. We are not convinced with the aforesaid submission. In order to take benefit of the explanation, the complainant is required to establish that the services of the opposite party were availed exclusively for the purpose of earning “livelihood” by means of self-employment”. The user of the words, “livelihood” and “self-employment” by itself imply that this explanation relates to a natural person. If the interpretation sought to be given by Ld. Counsel for the Complainant is accepted then every company will come and say that it has bought the goods for consideration or hired or availed services for consideration for the purpose of livelihood of the company by means of self-employment. That will make the entire exception carved out in the definition redundant. It appears that the instant complaint has been filed only with a view to avoid payment of court fee, which would require to be paid for filing a civil suit. Thus, in our view, the complaint is frivolous and mala-fide. It is accordingly dismissed with cost of Rs.10,000/- to be deposited by the Complainant company with “Consumer Legal Aid Account-NCDRC” within four weeks.”

5. Hence, as Directors of the Complainant Company are not before us in individual capacity and also in view of the fact that the expressions “livelihood” and “self-employment” are not available to the Company, we cannot accept the argument of the Complainant Company that incorporation of the Complainant Company as well as the transaction in question are for earning livelihood of the Directors of the Complainant Company.

6. It is also to be noted here that the Complainant Company has admittedly business relationship with OP. The said business relationship is not covered under the provisions of the Consumer Protection Act, 1986, under which this complaint was filed.

7. In this context, we would also like to refer to the judgment of Hon’ble Supreme Court in the matter of Laxmi Engineering Works vs. P.S.G. Industrial Institute [(1995) 3 SCC 583], in which Hon’ble Supreme Court has explained the term “Commercial Purpose”. While examining the issue, Hon’ble Suprme Court, in Laxmi Engineering case (Supra) has held as under:

“10. … Any consumer can go and file a complaint. Complaint need not necessarily be filed by the complainant himself; any recognized consumers' association can espouse his cause. Where a large number of consumers have a similar complaint, one or more can file a complaint on behalf of all. Even the Central Government and State Governments can act on his/ their behalf. The idea was to help the consumers get justice and fair treatment in the matter of goods and services purchased and availed by them in a market dominated by large trading and manufacturing bodies. Indeed, the entire Act revolves round the consumer and is designed to protect his interest. The Act provides for “business ­to­ consumer” disputes and not for “business­to­business” disputes. This scheme of the Act, in our opinion, is relevant to and helps in interpreting the words that fall for consideration in this appeal.

11. … The explanation reduces the question, what is a “commercial purpose”, to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz., “uses them by himself”, “exclusively for the purpose of earning his livelihood” and “by means of self­employment” make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself, by employing himself for earning his livelihood.”

8. In Lilavati Kirtilal Mehta Medical Trust vs Unique Shanti Developers and others [(2020) 2 SCC 265], Hon’ble Supreme Court, while dealing with the issue of transaction for commercial purpose, has laid down certain guidelines and 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 business­to­business transactions between commercial entities.

19.2. The purchase of the good or service should have a close and direct nexus with a profit­generating 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 self­employment” need not be looked into.”

9. Hon’ble Supreme Court in Lilavati Trust case (supra) has guided that to decide that a transaction is for a commercial purpose or not, the facts and circumstances of each case has to be considered and there cannot be any straightjacket formula for that purpose. However, the dominant intention or dominant purpose for the transaction and close and direct nexus with a profit­ generating activity are two broad parameters to ascertain that whether the transaction in question is commercial in nature or not. Further, for application of the explanation of section 2 (1) (d) of the erstwhile Consumer Protection Act, 1989, it is also to be examined that if the dominant purpose behind purchasing the good or service was for the personal use and the consumption of the purchaser and/ or their beneficiary, or is otherwise not linked to any commercial activity, then the question of whether such a purchase was for the purpose of “generating livelihood by means of self- employment” need not be looked into.

10. While applying the principles laid down in Lilavati Kirtilal Mehta Medical Trust case (supra), Hon’ble Supreme Court in the matter of Shrikant G. Mantri vs. Punjab National Bank [Civil Appeal No. 11397 of 2016, Decided on February 22, 2022] 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”. Hon’ble Supreme Court has also opined that 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.

11. In the case in hand, the facts clearly indicates and the Complainant Company also admits in the complaint that the relationship between the Complainant Company and the OP Company is “business relationship”. It is also stated by the Complainant in the complaint that the decision of the Complainant Company about withdrawal of its relationship with OP is for mitigating “business losses”. In view of the above, we are of the opinion that the transaction in question in this complaint is commercial in nature and it is not covered under the ambit of the Consumer Protection Act, 1986. Hence, this complaint is liable to be dismissed on merits as well.

12. Accordingly, in view of the reasoning above, the complaint is dismissed on both grounds- non prosecution as well as on merits. Office is directed to supply the copy of this order to the parties as per rules. Thereafter, file be consigned to the record room.

Ordered accordingly.

 

___________________________

Divya Jyoti Jaipuriar, President

 

 

___________________________

Ashwani Kumar Mehta, Member

 

 

 

___________________________

Harpreet Kaur Charya, Member