Per Shri S.R.Khanzode, Hon’ble Judicial Memb

          This consumer complaint is based upon the alleged deficiency in service on the part of opponent-M/s. Base Information Management (P) Ltd. (hereinafter referred as opponent) for the defects in the software supplied to complainant- Kilitch Drugs (India) Ltd. (hereinafter referred as complainant) and which is used by them to run their business.  It is further alleged by the complainant that they had suffered a loss in business due to such defects and further also claimed that when those defects were brought to the notice of the opponent,  opponent filed to rectify the same. 

          It is not disputed that software which is developed by opponent is known as “ERP Capital Software”.  Said software was supplied on license to the complainant to cater the following needs of the complainant:-

          “       a.       BASE ITM

i.                   Finance and Accounts

ii.                 Manufacturing (including Quality Control).

iii.              Sales and Districution.

iv.               Material Management.

v.                  Procurement

vi.               Human Resource and Payroll”.

          The complainant mentioned various errors and complained that the software failed to meet their needs.  The opponent failed to rectify the defects pointed out and ultimately, considering losses sustained in business, by letter dated 25/07/2008, complainant terminated the contract by which they received said software as licensee and requested the opponent to cancel the license and to refund the payment made by them against said contract under which the complainant was allowed to use the software. Right to claim the damages was reserved at that time.  Thereafter, this consumer complaint came to be filed.

          Opponent resisted the claim as per their written version dated 11/04/2010.  They elaboratively submitted and met with other allegations of the complainant regarding the alleged defects or defaults in the software and incidences pointed out reflecting the same.  According to them, software supplied was only used by other establishment too who are in similar business and no defects were found therein.  It is only the lack of experience of handling person at the establishment of the complainant.  The lack of experience and knowledge of such software operating personals caused the software to malfunction.  They also pointed out that key person of the complainant-Mr.Samir Karkhanis, responsible to manage this software had no sufficient knowledge and experience to handle the same.  It is also submitted on behalf of the opponent that complaint is not tenable and it is not also a consumer dispute.  It is also argued on behalf of the opponent that since their services being hired for the product which is supplied for commercial purpose, the complainant is not a consumer and as such, consumer complaint is not tenable.

          At the stage of leading evidence, complainant preferred to remain absent and did not adduce any evidence.  Opponent adduced their evidence on affidavit by filing affidavit of Mr.Nilesh Sharma, Director of the opponent.

          Considering the averments made in the complaint itself (para 22 of the complaint), the complainant alleged termination of the contract dated 25/04/2006 in between the parties to this dispute.  Complainant also made reference to a letter of termination dated 25/07/2008 (Exhibit- O).  The relevant portion from the said letter reads as follows:

“       As a consequence, many of the critical business processes of KILITCH are not getting addressed through the ITM, and therefore no meaningful  information is available through ITM on such business processes, which is so vital to the day-to-day functioning of business operations.  This has lead to a complete collapse of the information generation within KILITCH, which information is so critical for the control of business operations……………………………. BASE  has failed to provide even the basic level of service which is implicit in any such implementation contracts of ERP.…………………. 

We therefore treat the said contract as having been terminated on account of failure of BASE to meet its material responsibilities under the said contract, and accordingly request you to cancel the said licence for the ITM provided to us, and refund us the payments made by us, against the said contract.  This request is without prejudice to any other rights of KILITCH, including a right to claim damages.”

          In para 23 of the complaint, it is specifically stated that failure of said software resulted in critical business loss and tremendous hardship in managing the business of complainant.  From the material placed on record including one referred, supra, it could be seen that the services of opponent were hired for commercial purpose and as such, complainant is not a consumer within meaning of Consumer Protection Act, 1986 (hereinafter referred as the Act).  Thus, this cannot be termed as a consumer dispute.  A useful reference can be made to a decision of the Apex Court in the matter of “Economic Transport Organisation V/s. Charan Spinning Mills (P) Ltd. & anr., 2010 CTJ 361 (SC) (CP)”. 

          As far as alleged deficiencies in service in question or alleged defects in the software supplied which failed to meet the business needs of the complainant are concerned, the complainant miserably failed to substantiate the same.  On the contrary, the opponent brought it to the notice and established the facts through the affidavit of Mr.Nielsh Sharma, supra, corroborated by a documents on record to the effect that these allegations of the complainant regarding malfunction of the software are totally baseless.  The software supplied is a common one and used in the similar type of business and so far applied successfully.  It is further  shown that failure on the part of the personnel of the complainant to handle the software resulted into its alleged malfunction.  They categorically, in detail, in their written version para 28 and supporting affidavit of Nilesh Sharma dealt with the  incidences of malfunction alleged by the complainant and illustrated as to how these allegations are without any merit and false.  The space restraints do not allow us to quote each one of them or reproduce them and in the given circumstances, we do not find it necessary to do so.

          Furthermore, if at the subsequent point of time, it is found by the complainant that license to use the software in question obtained by them did not satisfy their business requirements, then, certainly, the software itself is not to be blamed.  In that case their selection proved to be erroneous.  

          Further, the contract under which the license to use the software stood terminated by the complainant itself on 25/07/2008, supra,  and therefore, thereafter, it ceased to be a consumer.  Hence, in respect of alleged deficiency in service or malfunction of the software, on the date when the complaint was filed, since, no such relationship of a consumer and service provider exists inter se in between the parties,  the consumer complaint consumer complaint is not at all tenable.  Alleged breach of contract and the damages claimed therefore as per the provisions of Indian Contract Act, is a domain of Civil Court and not of a Consumer Fora.

          For the reasons stated above, we hold accordingly and pass the following order:-

                                              :-ORDER-:

1.                 Consumer complaint stands dismissed.

2.                 Complainant to bear its own costs and pay `10,000/- as costs to the opponent.

3.                   Copies of the order herein be furnished to the parties as per rules.