Dt. of filing- 16/08/2018
Dt. of Judgement- 29/03/2019
Mrs. Sashi Kala Basu, Hon’ble President.
This is a complaint filed under Section 12 of the Consumer Protection Act, 1986 by the complainant namely ‘Officer’s Kitchen LLP’ against the Opposite Parties (1) DINEORDERSERVICES Private Ltd. (2) REDOQSOFTWARE SERVICES Private Ltd. alleging deficiency in services on their part.
Complainant’s case in brief is that it is a Partnership Firm and involved in the business of catering, restaurant, meal delivery, on line booking for delivery and retail of food items. On 31st May 2017, complainant placed an order with the Opposite Parties for designing and making of official website and billing software of ‘’Officer’s Kitchen” . As per their verbal quotation, complainant paid Rs. 10,000/- by way of cheque. OP agreed to complete the job within 7 days but could not do it even after the extension of further period of 7 days and due to the act of the OP, complainant has suffered financially. So, by e-mail dated 30.11.2017, complainant terminated the contract and asked the OP to return the said sum of Rs. 10,000/- paid by it. But inspite of the same, OP have not returned the said money. Thus the present complaint has been filed for directing the OPs to pay a sum of Rs. 1,24,815/- as compensation towards the harassment and mental agony.
On perusal of the record it appears that notice was sent to the OPs. But no step was taken by the OPs and as such vide order dated 06.12.2018, case has been heard exparte.
Complainant has annexed with complaint petition, an extract of Minutes of Board of Directors of the Officer’s Kitchen, bank statement, copy of mails , notice sent to the OP, reminders and also copy of legal notice sent by the complainant through its Ld. Advocate.
During the course of evidence, complainant filed its affidavit in chief and also ultimately filed written notes of argument.
So the point required determination is :-
Whether the complainant is entitled to the relief as prayed for?
Decision with reason
In this case, apparently complainant is a Partnership firm dealing with business of restaurant, catering, meal delivery, etc. It is an admitted case of the complainant, complainant caters large corporate houses and I.T. Companies. Complainant paid the amount of Rs. 10,000/- allegedly for designing and making official website and dealing software of Officer’s Kitchen which is sufficient indication of the fact that complainant hired the services for commercial purpose. So in view of the exceptions to the definition of ‘Consumer’ under Section 2(1)(d), complainant is excluded from the definition of ‘Consumer’ under the Consumer Protection Act unless its case is covered under the exclusion Clause to Section 2(1)(d) of the Act. The exclusion Clause provides that “ Commercial purpose” does not include use by a person of goods and services availed/hired exclusively for the purpose of earning his livelihood by means of self-employment. In this case, complainant has nowhere claimed that the said Partnership Firm are doing the business for earning their livelihood by means of self-employment. The complaint petition is totally silent in this regard. Neither anything has been stated in the evidence. In such a situation, as the complainant is not a ‘Consumer’ under the Consumer Protection Act, this complaint is not maintainable.
Hence,
Ordered
CC/510/2018 is dismissed exparte being not maintainable.
