Delhi

StateCommission

FA/368/2014

R.K. ROHILLA - Complainant(s)

Versus

GSEVEN COMPUTER BUSINESS LTD. - Opp.Party(s)

02 Nov 2016

ORDER

IN THE STATE COMMISSION : DELHI

 

(Constituted under Section 9 of the Consumer Protection Act, 1986)

 

Date of Decision: 2.11.2016

First Appeal No. 368/2014

(Arising out of the order dated 20.3.14 passed in Complaint Case No.004/12 passed by the District Consumer Dispute Redressal Forum (North-West), Shalimar Bagh, Delhi.)

In the matter of

SHRI RAMESH KUMAR ROHILLA

Proprietor of M/s Carewell Pipes,

201-202, 2^nd Floor, Bhanot Bhawan,

Commercial Complex Azadpur,

Delhi-110033

e-mail:rkr@carewellpipes.com

 

……Appellant

 

Versus

M/S GSEVEN COMPUTER BUSINESS (P) LTD.

Through its Managing Director,

103, Gupta Tower, Commercial Complex,

Azadpur, Delhi-110033.

 

…Respondent No. 1

M/S TALLY SOLUTIONS PVT. LTD.

Through its Managing Director,

CC-27, Nehru Enclave, Kalkaji,

Opp. Paras Cinema, New Delhi

Also at:

AMR Tech Part-II, No.23 & 24

Hongasandra, Hosur Main Road,

Bangalore-560068.

…Respondent No. 2

 

CORAM

Justice Veena Birbal, President

Salma Noor, Member

 

1.       Whether reporters of local newspaper be allowed to see the      judgment?

2.       To be referred to the reporter or not?

 

 

Justice Veena Birbal, President

1. This is an appeal under section 15 of the Consumer Protection Act  (in short, the Act)  wherein challenge is made to order dated 20.3.14 passed by the Consumer Dispute Redressal Forum (in short, the District Forum) in Complain Case No.82/11 whereby the aforesaid complaint has been dismissed.
2. Briefly the facts relevant for the disposal of the present appeal are as under:-

         The appellant herein i.e. the complainant before the Ld. District Forum is a proprietor of the firm, namely, M/s. Carewell Pipes having office at 201-202, 2^nd Floor, Bhanot Bhavan, Commercial Complex, Azadpur, Delhi. The appellant/complainant had purchased accounting software TallyERP9 (in short “software”) for his personal use from respondent No.1/OP-1 i.e. M/s. GSEVEN Computer vide invoice No.GSCBPL\08-09\803 dated 30.1.09. The said software was licensed as Tally Gold SN 72314289 and Tally Silver SN79312013 by respondent No.2/OP-2. The respondent No.2/OP-2 is the manufacturer/developer/programmer of the aforesaid software and sells the same through respondent No.1/OP-1. The software was purchased at a price of Rs.54,000/-. It was alleged that at the time of purchase, the respondent No.1/OP-1 had agreed and confirmed certain specifications of the software on the basis of which order for the software was confirmed. The alleged specifications are given in detail in the complaint.

3. It was alleged that after the software was installed, the respondent-1/OP-1 started delaying the service which it had promised and in the course of time the appellant/complainant noted defects in the software and deficiency in the service on the part of respondent No.1/OP-1.  The same are reproduced as under:

                              “(i)            The Opposite Party-1 gave incomplete free training to be               given for three hours for two days to the complainant.

2. The Opposite Party-1 did not bother despite repeated calls to activate synchronization of complainant’s two computer units in order to send the data from one station Godown to other station office. This resulted in heavy loss of time and money to the complainant in learning and getting it done through others at a very higher cost where as the Opposite Party-1 has promised to complete it at a very nominal cost of Rs.2,528/- as promised during the purchase of main software.
3. The Opposite Party-1 did not give the support on telephone to the complainant as promised. They mostly avoided the complaint phone calls of the complainant and further they gave the excuse several times that the concern person is not available in the office.
4. The customized file invoice. Tcp stopped working first time on 16.11.2009 due to date restriction. When the complainant reported the matter to the Opposite Party-1, they did some adjustment and the invoice.tcp file worked for a limited period. Again it did not work and the complainant again reported to the Opposite Party-1 for this failure on 17^th Feb., 2010. The complainant further requested the Opposite Party-1 to rectify the same properly so that failure should not repeat and the Opposite Party-1 promised that it will never happen in future. But the said invoice. tcp file stopped working again on 16.05.2010. The complainant immediately reported to the Opposite Party-1 on phone because it was holding up complainant’s entire system of sale invoice issue to his customers. To the great surprise of the complainant, the Opposite Party-1 refused to rectify it and asked to the payment of Rs.5,056.00 where as per the agreed terms, the Opposite Party-1 was supposed to arrange the return amount of Rs.5,402/- from the Opposite Party-2 to the complainant’s chartered accountant and then the complainant was supposed to pay to the Opposite Party-1 the customization charges of Rs.5,056/- . The complainant pleaded before the Opposite Party-1 not to adopt such unethical business practices and further requested to keep the promise as agreed at the time of purchase of the software. But the Opposite Party-1 did not pay any attention to the genuine demand of the complainant. Further the representative of the complainant visited the office of the Opposite Party-1 several times and also made telephonic calls but they ignored all requests. The complainant personally visited the office of the Opposite Party-1 refused to entertain any such requests. Due to this behaviour of ignorance & not keeping the promise by the Opposite Party-1 to rectify the defects quickly and further virtually holding functioning of the in voice.tcp file, the complainant was unable to issue sale invoice to his customers and all business of the complainant started to suffer badly resulting slowdown in sale thus putting him to a heavy loss.  Without the functioning of invoice.tcp file, the complainant was not able to issue any sale invoice as per the approved format. The complainant has to arrange additional skilled person to issue the sale invoices as per the approved format. This not only resulted extra cost to the complainant but also consumed a lot of additional time and moreover the quality is not the same as that of the approved format. The Opposite Party-1 has cheated the complainant cunningly in a very organized and planned manner by giving the invoice.tcp file with hidden date restriction either in the beginning itself or during customization without the knowledge of the complainant. A copy of the format of the invoice is hereby attached as annexure-3.
5.  The Opposite Party-1 and the Opposite Party-2 both severely & jointly have also not rectified below mentioned various other defects/problems details of which were sent to them telephonically, personally to their office and through e-mails on various occasions:

1. Chartered accountant & user can not access the data online through the internet as promised during the purchase of the software.
2. Turnover in local VAT return reports (Forum DVAT16) & CST Sales Tax return (Form 1) does not match each other and also the description of top three sale items is wrongly mentioned.
3. The GTO sale figure does not explore the net sale assessable value (Total sale minus discount for all ledgers) like gross purchase value for all ledgers in the Profit & Loss account report.
4. VAT rate cannot be changed or altered like CST as per the notification of the Govt. whereas it was promised that user can alter tax rate any time.
5. Any stock item cannot be inserted in between the other two stock items in the invoice like deletion of an item when edition.
6. During purchase entry before save voucher, the stock items quantity are not updated when item allocation entered against list of order pending like sale invoice or payment vouchers.
7. The Single Voucher e.g. Receipt voucher does not show the total amount against two ledger entries and also does not indicate “as per details”.
8. Price list has only sale rate and does not have purchase rate.
9. Showing undesirably in the computer of the complainant under license Gateway of tally “tally.net subscription expired” a payment default like message although the complainant does not have any outstanding. Also the Opposite Party-2 has online advertisement like messages such as latest update available in the computer of the complainant without the permission of the complainant. It can be hidden as additional feature but certainly not in front of the computer which not only reduces the space for other working fonts but also keeps on showing as an unwanted element always in front of eyes of the user. A copy of the computer screen picture of tally software showing the subscription expiry and latest update is hereby attached an annexure-4.
10. Memory access violation problem is repeated very often.

6. The Opposite Party-1 & Opposite Party-2 has clubbed the update version cost with other costly services such as data synchronization thus making the update version costlier unnecessarily whereas the user may or may not need other services. Both the Opposite Parties have refused to give update version alone and are demanding exorbitantly high money of Rs.10,800/- per annum (Rs.8,100/- for multi-user+ Rs.2,700/- for single user) than the cost promised of Rs.500/- at the time of sale of software. Thus they are adopting unfair trade practices by clubbing the cost of update version with other services.
7. The Opposite Party-1 has not arranged the full return amount of Rs. 5,402/- till date from the Opposite Party-2 as promised & only part payment of Rs.4,051/- has been paid lon date 02-08-2010 through chartered accountant Shri Vikram Aggarwal.”

4. It was alleged that the respondents/OPs jointly & severally did not remove the alleged defects from the software and there was deficiency in sevice on their part. It was alleged that respondent-1/OP-1 had cheated the appellant/complainant in an organized & planned manner by putting the hidden date restriction in the beginning of customization of invoice.tcp file itself without the knowledge of the appellant/complainant. It was alleged that respondents/OPs were not providing the update version as promised at the time of sale of software.  It was alleged that unfair trade practices were adopted by the respondents/OPs which had caused heavy loss of money and time to the appellant/complainant apart from disturbance of the accounts.  It was alleged that same was effecting the sale business under the self employment of the appellant/complainant.
5. It was alleged that the appellant/complainant requested number of times to the respondent No.1/OP-1 to rectify the alleged defects. The appellant/complainant also sent a notice on 30.12.10 but no reply was given by the respondent No.1/OP-1. Finding no action on the part of respondents/OPs, the appellant/ complainant had filed a complaint under Section 12 of the Act before the Ld. District Forum making prayers that the respondents/OPs be directed to remove the date bar imposed in functioning of the invoice.tcp file of the software TallyERP9 for ever; to remove the defects in the software; to pay the expenses incurred towards wages of the skilled persons incurred for preparation of sale bills without the invoice top file in the software.  The appellant/complainant had prayed compensation of Rs. 2 lac for causing mental agony and harassment to him and for awarding litigation cost.  Further prayer was made for issuance of directions to respondents/OPs not to put any date restriction or any kind of intervention or advertisement etc. like messages online in the software.
6. The complaint was earlier rejected at admission stage by the Ld. District Forum vide order dated 1.2.11 by holding that appellant/complainant was running a commercial enterprise and software was purchased for commercial activity and as such was not a “consumer” as prescribed under the Act.  The appellant/complainant filed First Appeal before this Commission i.e. FA No.103/11 whereby the order passed by the Ld. District Forum was set aside by observing that the District Forum had passed a very cursory order and had given no reasons.  It was held that the order was not sustainable and the matter was remanded back to the Ld. District Forum for further proceeding in accordance with law.
7. The respondent No.2/OP-2 had contested the complaint case by filing a detailed written statement wherein it was alleged that the complaint was not maintainable since the appellant/complainant was not a ‘consumer’ as  defined under Section 2(1)(d) of the Act. It was alleged that the appellant/complainant was having more than 10 employees and had a large turnover worth crores. The software purchased was not used for self employment as was alleged but was for commercial purposes to make profits. It was alleged that the software was used for accounting, cash memo, recording of all types of inventory transactions etc. which were clearly in the nature of commercial activities. The allegations about alleged defects were totally denied by respondent-2/OP-2. It was further alleged that respondent-2/OP-2 and respondent-1/OP-1 operate on a principal to principal basis only and not on a principal agent basis. It was further alleged that the respondent No.2/OP-2 was not responsible for any alleged misrepresentation if any, made by the OP-1/respondent No.1.
8. The respondent-1/OP-1 filed written response to the complaint along with written submissions wherein the alleged deficiencies/defects in the software were totally denied. It was also alleged that the appellant/complainant was not a ‘consumer’ as defined under section 2(1)(d) of the Act. It was alleged that the software was used for accounting, invoicing and recording of day to day business transaction which were clearly in the nature of commercial activity. It was alleged that appellant/complainant had been making different statements.  On one hand he had alleged that from the use of software, no product or profit was generated. On the other hand, he had alleged due to alleged defects in the software, he was unable to issue sale invoices to his customers and business of appellant/complainant suffered badly due to slow down in sale as a result of which he was put to loss. It is further alleged that the software with VAT/CST/Excise/TDS accounting of business transactions was used for business accounting and was purely meant for commercial purpose.  It was prayed that complaint was not maintainable and was liable to be rejected.
9. By way of evidence, the appellant/complainant filed his own affidavit. On behalf of respondent No.2/OP-2 affidavit of Sh. Sanjeev Palekar, Company Secretary was filed.
10.      The parties filed their written arguments.
11.      After hearing Ld. Counsel for the appellant/complainant and for the respondents/OPs, the Ld. District Forum again dismissed the complaint by holding that the appellant/complainant was not a ‘consumer’ within the meaning of section 2(1)(d) of the Act and in arriving at aforesaid conclusion, the Ld. Ld. District Forum had placed reliance on  III(1992) CPJ 58 (NC) International computers India Manufacturing Ltd. vs M/s. Monarch Agencies, 1(2004) 156 Shanker Shah Ishar Dass Jewellers vs. Fedders Llyod Corporation Ltd. and III (1998) CPJ 619 M/s Arya Bhavan Sweets vs. Rado Automation.
12.          On merits, the Ld. District Forum observed that the appellant/complainant had listed as many as seven defects/discrepancies in the software and the respondents/OPs had not admitted the alleged defects. Accordingly, Ld. District Forum noted that appellant/complainant and respondent-2/OP-2 had also filed their respective affidavits in this regard.  The Ld. District Forum observed that allegations levelled by the appellant/complainant could not be adjudicated without elaborate evidence being led by the appellant/complainant and his witnesses being subjected to a detailed and lengthy cross examinations and it was not possible to decide the controversy under the summary procedure prescribed under the Act. Accordingly, the Ld. District Forum had dismissed the complaint being not maintainable before the District Forum.
13.      Aggrieved with the aforesaid order, present appeal is filed.
14.      We have heard the appellant/complainant who has argued himself as well as Counsel for the respondents/OPs and gone through the material on record.
15.      The appellant/complainant has argued that he is the proprietor of M/s. Carewell Pipes and is running the said business by way of self employment.  It is argued that the software is used exclusively for his own use for accounting purpose for his customers dealing in the trading of pipes. It is contended that the trading of pipes is the commercial activity from which the profit is generated but from the use of software no profits are being generated hence its use cannot be said for any ‘commercial purpose’ as such he is a ‘consumer’ as per definition given under the Act. The appellant/complainant has relied upon Harsolia Motors vs National Insurance Co. Ltd. I (2005) CPJ 27 (NC), Regional Provident Fund Commissioner vs Shiv Kumar Joshi (2000) 1 SCC 98 and Laxmi Engineering Works Vs. PSG Industrial Institute  (1995) 3 SCC 583 in support of his stand.
16.      It is further contended that the Ld. District Forum was not inclined to decide the matter on merits and the finding that the matter requires detailed evidence and cross examination is not correct.
17.      On the other hand, Ld. Counsel for respondents/OPs have contended that the appeal filed is not maintainable as the appellant/complainant is not a ‘consumer’ as defined under Section 2(1)(d) of the Act. It is contended that the software is purchased by the appellant/complainant for ‘commercial purpose’ with motive of earning profits for a large business having turnover of crores as such appellant/complainant is not a ‘consumer’. It is contended that appellant/complainant has also employed 10-15 employees for running the business as such it cannot be said that appellant/complainant is running the business by way of self employment as is alleged.  It is contended that the Act is not meant for giving relief for “commercial purposes”. It is contended that appellant/complainant had approached the Consumer Forum with a malafide intention to avoid payment of appropriate court fee. It is contended that the software is used for accounting invoices and recording day to day business transactions which are clearly in the nature of commercial activity.  It is contended that there is no illegality in the impugned order as the same is liable to be dismissed. In support of their contention, Ld. Counsel for the respondents/OPs have also relied upon Birla Technologies Ltd. vs Neutral Glass and Allied Industries Ltd., 2011 1 SCC 525.
18.       The first question for consideration is whether the appellant/complainant is a ‘consumer’ within the meaning of section 2 (1)(d) of the Act. In order to answer the aforesaid question it would be useful to have a look on the amended definition of consumer as provided under section 2 (1)(d) of the Act which is reproduced as under:

“(d)   "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 services 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 services 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 services for any commercial purposes;

Explanation - For the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment."

19.      On reading the above explanation, it is clear that the benefit of explanation is available to the person who avail the services exclusively for the purpose of earning his livelihood by way of his self-employment. Since this explanation is in the nature of exception to the main rule, the onus of proving that the appellant/complainant is covered by the explanation is upon him.
20.     In Laxmi Engineering Works Vs. PSG Industrial Institute,  (1995) 3 SCC 583, the Hon’ble Apex Court  has dealt with the definition of “consumer” under Section 2(1)(d).  The relevant discussion is reproduced as under : 

“11. Now coming back to the definition of the expression ‘consumer’ in Section 2(d), a consumer means insofar as is relevant for the purpose of this appeal, (i) a person who buys any goods for consideration; it is immaterial whether the consideration is paid or promised, or partly paid and partly promised, or whether the payment of consideration is deferred; (ii) a person who uses such goods with the approval of the person who buys such goods for consideration; (iii) but does not include a person who buys such goods for resale or for any commercial purpose.  The expression ‘resale’ is clear enough.  Controversy has, however, arisen with respect to meaning of the expression “commercial purpose”.  It is also not defined in the Act.  In the absence of a definition, we have to go by its ordinary meaning.  ‘Commercial’ denotes “pertaining to commerce” (Chmber’s Twentieth Century Dictionary); it means “connected with, or engaged in commerce; mercantile; having profit as the main aim” (Collins English Dictionary) whereas the word ‘commerce’ means “financial transactions especially buying and selling of merchandise, on a large scale” (Concise Oxford Dictionary).

 

 

The National Commission appears to have been taking a consistent view that where a person purchases goods “with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit”, he will not be a ‘consumer’, within the meaning of Section 2 (d) (i) of the Act.  Broadly affirming the said view and more particularly, with a view to obviate any confusion – the expression “large scale”  is not a very  precise expression – Parliament stepped in and added the explanation to Section 2(d)(i) by Ordinance/ Amendment Act, 1993. The explanation excludes certain purposes from the purview of the expression “commercial purpose” – a case of exception to an exception.  Let us elaborate: a person who buys a typewriter or a car and uses them for his personal use is certainly a ‘consumer’ but a person who buys a typewriter or a car for typing others’ work, for consideration or for plying the car as a ‘taxi’, can be said to be using the typewriter/car for a commercial purpose.  The explanation however clarifies that in certain situations, purchase of goods for “commercial purpose” would not yet take the purchaser out of the definition of expression of expression ‘consumer’. If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of ‘self-employment’, such purchaser of goods is yet a ‘consumer’. In the illustration given above, if the purchaser himself works on typewriter or plies the car as a taxi himself, he does not cease to be a consumer.  In other words, if the buyer of goods uses them himself, i.e. by self-employment, for earning his livelihood, it would not be treated as a “commercial purpose” and he does not cease to be a consumer for the purposes of the Act.  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.

 

21.      In Kalpavruksha Charitble Trust v. Toshniwal Brothers (Bombay) Pvt. Ltd. and another, reported in III 1999 CPJ 26 (SC), reiterating the principles stated in Laxmi Engineering Works (supra), the Hon’ble Supreme Court ruled whether a person would fall within the definition of “consumer” or not would be a question of fact in every case. 
22.     It is important to refer to the judgement of National Commission in Jayant Kumar Sahu v. Dr. Prasanna Kumar Patel, II (2006) CPJ 71 (NC)=2006 CTJ 324 (CP) (NCDRC), where cognizance of amendment to Section 2(1)(d)(ii) of the Act w.e.f. 15.3.2003 was taken and it was observed that service rendered for commercial activity has been excluded w.e.f. 15.3.2003.  However, before that date service rendered for commercial purpose was within the ambit of Consumer Forum.   
23.  In Birla Technologies Ltd. vs Neutral Glass and Allied Industries Ltd.    reported in (2011) 1 SCC 525, the Hon’ble Supreme Court has held that a software developed for complainant therein to take care of financial accounting, production, marketing, purchase, store/inventory, fixed assets, and pay roll and personnel system would amount to services purchased for commercial purposes for earning more profit and therefore the complainant could not be held to be a ‘consumer’ with the meaning of Section 2(1)(d) of the Act.
24.       In Shivam Projects Private Limited vs.Toyota Kirloskar Motor Pvt. Ltd. & Ors., I (2015) CPJ 422 (NC), the complainant therein  was in the business of construction mainly for the Indian Arms Forces and was registered entity  with Military  Engineers Services (MES), Ministry of Defence, Govt. of India for executing construction of projects for the Ministry of Defence on behalf of MES.  The complainant in the aforesaid case had purchased a car make Toyota Model Coroll/Corolla Altis Diesel on 28.2.13. On 5.4.14, there was an accident of the car and it was over turned. A complaint was filed against the manufacturer and dealer alleging that a sub standard car was sold. The question in the aforesaid case was whether the complainant therein was ‘consumer’ within the meaning of the Act. The National Commission relying on the various judgement of the Hon’ble Apex Court as well as its earlier judgements on the subject held that the car in question was not purchased for the purpose of earning livelihood by means of self employment for the Directors of the company.  It was held that car was used for commercial purpose. Accordingly it was held that the complainant therein was not a ‘consumer’. The relevant part of the judgment is reproduced as under :-

 

“20.    The  car  in  hand  was  not  purchased  exclusively for the purposes of  earning  livelihood  by means of self-employment for the Director  of  the Company.  It  is  not  for  the livelihood  of  the  Director  or  personal  use  of the  Director. He has to use the car only for commercial purposes and that is why, he purchased it in the name of the company.  There is no resolution for purchase of car.  In   case  the companies  are  allowed to save  the  court  fees, the  very purpose of  ordinary  consumer or  as defined by the Act  shall  stand  defeated.”

 

25.      In the light of above legal backdrop, the present matter is examined.
26.      It is the case of appellant/complainant that he is running business under the name of M/s. Carewell Pipes. It is also admitted position that he has purchased ‘the software’ from respondent-1/OP-1 which is manufactured by respondent No2/OP-2. It is also admitted position that the appellant/complainant is having a turnover worth crores and had employed more than 15 employees. In these circumstances it cannot be said that he is under self employment as Proprietor of aforesaid firm as is alleged. As per own case of appellant/complainant he is using the software for accounting purposes for his customers. The appellant/ complainant has alleged in the complaint that due to not removing the defects and holding functioning of invoice.tcp file, the appellant/complainant was unable to issue any sale invoice to his customers and all the business of appellant/complainant suffered badly resulting slowdown in sale thus putting him to a heavy loss. The above averments of appellant/complainant show that the software was purchased for earning profits.
27.      It may also be mentioned that in replication while referring to para 9 of the complaint, the appellant/complainant has averred as under:

                        “It is further submitted that the complainant (Proprietor Carewell Pipes), is using the software exclusively in own business of pipes where accounting and invoice is prime & lifeline for survival of business in today’s scenario and is essential for his clients in day-to-day activities. Further, heavy irreparable loss and damage is being caused to the complainant without his fault. The complainant is badly suffering due to decline in pipe sales because of non-functioning or obstruction in the operation of the software being a prime tool of accounting in business. Due to drop in sale, apart from the huge personal loss, there is also a loss to the Exchequer in terms of sales tax/VAT to the tune of several Lakhs of rupees. And further the pipe sale business is being severely affectted due to non-functioning by date bar or cease of software by making license invalid through online intervention by OP-2.”

 

28.      In the evidence by way of affidavit, the aforesaid averments are made on oath.  Further the appellant/complainant has stated in the affidavit that due to alleged defects, heavy damage due to loss of profit has occurred which the deponent might be earning from the sale of pipes to his customers as the sale drastically came down because these days the customers do not wait for a moment for billing issues and on various occasions the customers cancelled the order and purchased the material from other sources thus causing an irreparable loss of business to the appellant/complainant.
29.      The aforesaid statement on oath by the appellant/complainant clearly demonstrates that the subject software had a close nexus with the commercial activities being carried on by the appellant/complainant and that it was an integral part of the business.
30.      The alleged defects which the complainant has pointed out in software which are already reproduced above shows that the appellant/complainant had purchased the software for use in business activities.
31.      The Harsolia Motors case (Supra)sought to be relied upon by the appellant/complainant is not applicable to the facts of present case since the said matter deals with insurance policies in a completely different context and the same cannot be compared/adopted to the present case in any manner whatsoever. Even the case of Regional Provident Fund Commissioner Shiv Kumar Joshi (Supra) is not applicable to the facts of present case as the said case mainly deals with the question of law as to whether the provisions of the Consumer protection Act could be invoked against the Provident Fund Commissioner by a member of the Employees Provident Fund Scheme and hence, the said case cannot be invoked in the facts and circumstances of he present matter. Even the case of Laxmi Engineering Works (Supra) does not help the appellant/complainant’s case in any manner.
32.      In view of the above discussions, the contention raised by the appellant/complainant that the software is for personal use is baseless. The own case set up by appellant/complainant in the complaint, the  evidence by way of affidavit of appellant/complainant, the alleged defects in the software  reproduced in preceding paras clearly show that the software was purchased for use in running large scale business having turnover of crores. The software was used for discharging various commercial activities and motive was to maximize the profits as such appellant/complainant is not a “Consumer” as defined under the Act.
33.       We also find no reasons to interfere with the reasoning given by the Ld. District Forum that the findings on the alleged defects can not be given without elaborating evidence being led by both the parties. We find that alleged defects are totally denied by the respondent No. 2/OP-2. There is an affidavit against affidavit. As such we agree with the opinion of the Ld. District Forum that the allegations leveled by the appellant/complainant can not adjudicated without elaborate evidence being led by the appellant/ complainant and his witnesses being subjected to detailed and lengthy cross examinations which is not possible in a Summary Procedure under the Act.
34.      We find no illegality or infirmity in the impugned order passed by the Ld. District Forum.
35.      We may mention that it has been pointed out on behalf of the respondents/OPs that the appellant/complainant had filed the complaint in the year 2011 and since then they have been unnecessarily dragged into litigation. It is submitted that appellant/complainant is the neighbourer of respondent-1/OP-1. It is submitted that even during the pendency of the present appeal, the appellant had moved to the National Commission for early disposal of the appeal. Thereafter, he had approached the Hon’ble Supreme Court for early hearing. It is submitted that for no reasons the respondents/OPs have been harassed by the appellant/complainant. Ld. Counsel submits that if the appellant/complainant is not satisfied with the software, without admitting any deficiency therein and without prejudice to their rights and contentions, the respondent-1/OP-1 is ready to return the amount of software which appellant/complainant had paid to respondent No.1/OP-1. However, the appellant/complainant has refused to accept the said offer.
36.       In view of above discussion, the appeal stands dismissed.

 

 

 

37.      A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the District Forum (North-West), Shalimar Bagh, New Delhi.  The record of the District Forum be also sent back forthwith.   Thereafter the file be consigned to record room.

(Justice Veena Birbal)

President

 

 

(Salma Noor)

Member