Haryana

Kaithal

170/21

Sukhvinder Singh - Complainant(s)

Versus

Hitesh Goyal Chaudhary - Opp.Party(s)

In Person

23 Jan 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KAITHAL

 

                                                               Complaint Case No. 170 of 2021.

                                                               Date of institution:   20.07.2021.

                                                               Date of decision:      23.01.2024.

 

Sukhvinder Singh s/o Shri Baldev Singh, r/o H.No.1008, Sector 19-II, HUDA, Kaithal.

                                                                                      …Complainant.

                                                   Versus

 

Hitesh Goyal Chaudhary, Proprietor of Bharat Designer, Chaudharian Mohalla, Main Bazaar, Kaithal.

...Opposite Party.

 

          Complaint under Section 35 of the Consumer Protection Act

 

 

CORAM:   SMT. NEELAM KASHYAP, PRESIDENT.

                   SMT. SUMAN RANA, MEMBER.

                   SHRI SUNIL MOHAN TRIKHA, MEMBER.

                  

Present:       None for the complainant.   

                   Shri Amit Chaudhary, Advocate for the Opposite Party.

                  

ORDER  -  NEELAM KASHYAP, PRESIDENT:

        Complainant has filed this complaint under Section 35 of Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’), against the OPs.

2.                In the complaint, complainant alleged that due to Covid-19, he wanted to sell his products online for survival of his family and online searched for Website Developers, he contacted with OP, who is doing the job of website designing and developing, who assured him that he will prepare E-commerce Website for online sale of products, in which, the OP will provide the following features:-

1. Complaint and support section
2. Youtube profile with Youtube vide player embedding.
3. Linked in and Facebook profile with linking.
4. Purchase of services for website requirements like Domain, email ID and dedicated server etc.
5. Direct Whatsapp and call now button.
6. Projects slide show and dedicated page.
7. No page limit in website.
8. Secure https
9. Dedicated serve
10. Dedicated Email
11. Impressive Theme as per satisfaction
12. Blogging ling
13. Basic SEO
14. Keeping upto date all the certificates and firmware.
15. Date sheet with separate download page.
16. Or whatever we need to keep our site on top
17. Plus option for future expansion.

                   That the OP demanded Rs.20,000/- from him for providing the said E-Commerce Website. He sent Rs.10,000/- in advance on 01.06.2020 in the account No.2045201012228 of Canara Bank and paid the remaining amount of Rs.10,000/- on 30.03.2021, but OP did not give the bill/receipt of said amount to him. That OP did not complete the website of him and lingered on the matter on one false pretext or the other. The OP neither completed the website of him after receiving Rs.20,000/- from him nor refunded the said amount to him, rather threatened him to defame on social and digital media. The above act of OP, amounts to gross deficiency in service, on his part, due to which, he suffered huge physical harassment, mental agony as well as financial loss, constraining him, to file the present complaint, against the OP, before this Commission.

3.             Upon notice of complaint, OP appeared before this Commission and filed written statement stating therein that in the month of April 2020, one Naveen Jangra on behalf of JDP Industries contacted with OP and asked to develop semi e-commerce/dynamic website for the promotion of his business, which the OP gave the price quotation to him. That after settlement of price of developing semi e-commerce website, OP demanded derivable/requirements from said Naveen Jangra, which provided to OP after a lapse of about 8 months despite repeated requests and demand made by OP. That it was also settled between Naveen Jangra and OP that 50% of settled amount shall be paid to the OP in advance and rest of 50% of settled amount shall be paid by said Naveen Jangra on completion of task before making site live. That it was also settled that website renewal fee shall be Rs.5000/- PA and each and every change in website shall also be chargeable which has not been paid by said Naveen Jangra to OP. That as per oral agreement the said Naveen Jangra has not provided their rate list of products to OP nor demanded the options “Sale Option” and “Payment Gateway” to OP as the agreement was executed for developing Dynamic/Semi E-Commerce website and not for fully E-commerce Website. That OP has developed the website for JDP Industries on the asking of Naveen Jangra and provided extra services also apart from agreement. The OP has done the work with entire satisfaction of said Naveen Jangra and the website developed by OP is running till today smoothly and there is no fault in the same i.e. the website URL for verification is indiasolarcompany.com. The OP has provided its services to said Naveen Jangra upto his full satisfaction, but said Naveen Jangra has not completed his part of said oral agreement as Naveen Jangra has not paid 18% GST to OP till today, for which, he is bound to pay. The OP has completed all the work of website after receiving the data from Naveen Jangra and received Rs.20,000/-. No question of returning the said amount of Rs.20,000/- to complainant, as there is no deficiency in service on the part of OP, rather the OP is entitled to get 18% GST amount upon said Rs.20,000/- from said Naveen Jangra. Thus, there is no question of any deficiency in service, on the part of OP and prayed for dismissal the present complaint.

4.                To prove the case, complainant tendered into evidence affidavit Ex.CW1/A alongwith documents Annexure-C1 to Annexure-C4.

5.                On the other hand, OP in its evidence tendered affidavit Ex.RW1/A and documents Annexure R-1 to Annexure R-6.

6.                However, it is pertinent to mention here that from the last two dates of hearing i.e. 21.12.2023 and 18.01.2024, neither complainant nor anyone on his behalf appeared before this Commission up to waiting sufficient time, whereas, counsel for OP appeared many time since morning, in the case, before this Commission, on both dates for arguments. However, on today, case has been called up several times since morning, but again neither complainant nor anyone appeared on his behalf. However, this Commission is not inclined to dismiss the complaint on account of default in appearance, rather wants to decide the same on merits. Having no another option, this Commission proceed ahead to decide the complaint on the basis of material available on the record as well as after hearing learned counsel for OP.

7.                Learned counsel for OP has argued that in the month of April 2020, one Naveen Jangra on behalf of JDP Industries contacted with OP and asked to develop semi e-commerce/dynamic website for the promotion of his business and after settlement of price, OP demanded derivable/requirements from said Naveen Jangra, which provided to OP after a lapse of about 8 months, despite repeated requests and demand made by OP. He further argued that it was also settled between Naveen Jangra and OP that 50% of settled amount shall be paid to the OP in advance and rest of 50% of settled amount shall be paid by said Naveen Jangra on completion of task before making site live. He further argued that it was also settled that website renewal fee shall be Rs.5000/- PA and each and every change in website shall also be chargeable which has not been paid by said Naveen Jangra to OP. He further argued that as per oral agreement the said Naveen Jangra has not provided their rate list of products to OP nor demanded the options “Sale Option” and “Payment Gateway” to OP, as the agreement was executed for developing Dynamic/Semi E-Commerce website and not for fully E-commerce Website. He further argued that OP has developed the website for JDP Industries on the asking of Naveen Jangra and provided extra services also apart from agreement and has done the work with entire satisfaction of said Naveen Jangra and the website developed by OP is running till today smoothly and there is no fault in the same i.e. the website URL for verification is indiasolarcompany.com. He further argued that OP has provided its services to said Naveen Jangra upto his full satisfaction, but said Naveen Jangra has not completed his part of said oral agreement as Naveen Jangra has not paid 18% GST to OP till today, for which, he is bound to pay. He further argued that present complaint is not maintainable because complainant was running the said business for commercial purposes.

8.                Taking into consideration all the facts and circumstances of the case and without going into any other controversy of the case, firstly, this Commission has to decide whether the complainant falls with the ambit of consumer or not, as envisaged u/s 7 of Consumer Protection Act, 2019, which reads as under:-

(7) "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 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 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 service for any commercial purpose.

Explanation.—For the purposes of this clause,- (a) 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; (b) the expressions "buys any goods" and "hires or avails any services" includes offline or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing.

9.                From the perusal of contents of the complaint, we found that the complainant approached the OP for developing semi-E-commerce website for promotion of his business having various features as mentioned in Para No.3 of the complaint, meaning thereby the complainant was running his online business at large scale and had availed the services of OP for commercial purposes after paying huge amount of Rs.20,000/- to the OP in this regard. Hence, the complainant does not fall within the definition of consumer as envisaged u/s 7 of Consumer Protection Act, 2019 (referred above) and complaint is liable to be dismissed on this very ground.  Our view is also supported by the case law titled U.P. Power Corporation Ltd. & others Vs. Anis Ahmad. 2013(3) CLT page 227, wherein it has been held that Commercial purpose-Consumer-Complaint- Complainant-Person(s) availing services for ‘commercial purpose’ do not fall within the meaning of “consumer” and cannot be a “complainant” for the purpose of filing a “complaint” before the Consumer Forum. It has also been held in the said authority that Commercial purpose-complainants having electrical connections for industrial/commercial purpose-They do not come within the meaning of “consumer” as defined under Section 2(1)(d) of the Consumer Protection Act, 1986-They cannot be treated as “complainant”-They are not entitled to file any “complaint” before the Consumer Forum.

10.              Keeping in view the ratio of case law referred above as well as facts and circumstances of the case, this Commission has come to the conclusion that present complaint is not maintainable before this Commission and same is liable to be dismissed. Once the complainant is not falling within the definition of consumer, then this Commission is not required to pass any comment on the merit of the case.

11.              Hence, due to the reasons stated hereinbefore, present complaint is, dismissed, it being not maintainable, before this Commission, leaving the complainant to bear his own costs of litigations. A copy of this order be sent to the parties free of cost. File be consigned to the records, after due compliance.     

Announced in open Commission:

Dt.:23.01.2024.

                                                                                      (Neelam Kashyap)

                                                                                      President.

 

(Sunil Mohan Trikha).             (Suman Rana).              

Member.                                  Member.

 

 

 

 

Typed by: Sham Kalra, Stenographer.