Delhi

North East

CC/258/2017

SHRI SHIV AGGARWAL - Complainant(s)

Versus

M/S BUSY INFOTECH PVT. LTD. - Opp.Party(s)

17 Oct 2018

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 258/17

 

In the matter of:

 

	Shri Shiv Aggarwal S/o Late Uma Shankar Aggarwal R/o House No. 138-A, Gali No.13 Balbir Nagar, Extn. Shahdara, Delhi-32.	Complainant
	Versus
	M/s Busy Infotech Pvt Ltd Through its CMD/MD/Director/A.R. Mr. Ranjan 206, M.G.Road,2, Community Center Wazirabad Industrail Area, Delhi-52.	Opposite Party

 

DATE OF INSTITUTION:      JUDGMENT RESERVED ON:               DATE OF DECISION      :

09.08.2017 16.10.2018 17.10.2018

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Briefly stated, the case of the complainant is that he was approached by the OP through its representative in 2010 at his residence for demonstration of a financial accounting software namely ‘BUSY’ developed by OP and which the complainant could make use of for his accounting work for his clients being a private accounts consultant. The complainant purchased the same and paid a sum of Rs. 7,500/- in cash to OP representative who duly installed the software in the computer of the complainant and handed over a dongle / key bearing no. 10060040 to run the said software as a token / proof of its genuineness and the complainant continued using the same for accounting work of his clients on the said software. Post implementation of GST in July 2017, due to change in tax process and maintaining financial accounts, the said software needed upgradation for which the complainant contacted the OP vide e-mail dated 14.07.2017. However, the OP in response to the said e-mail apprised the complainant that the said registration / key number was blocked since long for the reason ‘non payment’ which shocked the complainant who repeatedly then followed up with OP for updation and was ready and willing to pay the upgradation charges but the OP did not accommodate the complainant on the same. The complainant, finding no other alternative, got issued a legal notice date 21.07.2017 to the OP through his counsel by speed post and e-mail asking the OP to issue a fresh upgraded registration key/ dongle of the software ‘BUSY’ to the complainant but the OP failed to comply with the same. Feeling aggrieved with the deliberate and arbitrary act of OP of withholding / blocking the registration key and refusing the upgradation of the same resulting in business loss to the complainant, the complainant was constrained to file the present complaint alleging deficiency of service and unfair trade practice on the part of OP and prayed for issuance of directions against OP to issue a fresh upgrated registration key/dongle of the financial accounting software ‘BUSY’ to the complainant and to pay Rs. 50,000/- towards compensation for physical harassment and wrongful unprofessional acts of the OP, Rs. 5000/- per day for business loss w.e.f. date of notice i.e. 21.07.2017 till final adjudication of the complaint, Rs. 5500/- towards cost of notice, cost of the present complaint and interest @24% p.a. on the sum awarded by this Forum to the complainant.

Complainant has attached copy of legal notice to OP dated 21.07.2017 with postal receipt.

2. Notice was issued to the OP on 15.09.2017 and OP entered appearance and filed its written statement on 15.12.2017 in which took the preliminary objection that the complainant, after taking the said key/ dongle and getting installed the software in his computer, assured the representative of OP that payment would be sent by him to OP’s office and the OP’s representative believing the assurance of the complainant returned without taking the said amount or consideration from the complainant and the present complaint has been filed by the complainant as an escape route to wriggle out of his contractual obligation to pay the cost of the key/dongle and was making false statement / averment liable for prosecution under Section 191,192,193,196,199,200,209 and 210 of IPC. The OP further submitted that the facility had been taken by the complainant without any consideration paid or payment made against the said key / dongle despite several reminders, telephonic calls, e-mails etc after which the dongle was finally blocked due to ‘NON PAYMENT’. The OP further submitted that the legal notice dated 21.07.2017 by the complainant was duly replied by the counsel for OP vide reply dated 14.08.2017 in which the OP had raised objection of non payment of cost of the dongle/key by the complainant.  The OP denied having provided deficient service or indulged in unfair trade practice and prayed for dismissal of the complaint. OP has attached copy of Board Resolution authorizing Sandeep Kumar HR, Manager of OP by its MD and Director and copy of reply dated 14.08.2017 to legal notice of complainant dated 21.07.2017.
3. Rejoinder and evidence by way of affidavit was filed by the complainant in reiteration of his grievance against the OP. The complainant submitted that the OP never raised any demand of any alleged dues towards the software of dongle /key since its installation because the payment for the same had already been made by the complainant and received by the OP.
4. Evidence by way of affidavit was filed by the OP wherein apart from reiterating its defence of non receipt of consideration amount for the dongle key from the complainant, to corroborate the same the OP placed on record internal e-mails exchanged between OP and its channel partner Kuldeep Singh Saini through Deep Jyoti Computer Services dated 14.11.2010, 22.12.2011, 06.11.2013 and 26.07.2017 wherein the dealer vide e-mail dated 14.11.2010 to OP for the first time had asked the OP for locking the ‘BUSY’ software no. 10060040 sold to complainant for no payment of the product since installation in July 2010 and in the ensuing e-mails dated 22.12.2011 and 06.11.2013 had repeatedly asked for locking the dongle of complainant as him being featuring in the list of defaulters. The OP placed on record e-mail dated 14.07.2017 by complainant to OP for unblocking his dongle and upgrading it to ‘BUSY’ 2017 to which vide reply e-mail dated 26.07.2017, the OP had informed the complainant that his dongle was blocked on request of its channel partner Kuldeep Singh Saini due to non payment of purchasing the cost of the said dongle asking the complainant to contact Mr. Saini to resolve his payment issues after which only shall the dongle be unblocked. OP placed on record the e-mails dated 14.11.2010, 22.12.2011, 06.11.2013 and 26.07.2017 alongwith the evidence by way of affidavit.
5. Written arguments were filed by the complainant in which the complainant raised an argument that if the complainant had not paid the price of the said software in 2010, why did the OP never raise any demand of money thereagainst and the defence of OP was due to its lust for more money on the pretext of alleged non payment and therefore sham and bogus. The complainant relied upon the judgment of Hon’ble Supreme Court in Ghaziabad Development Authority Vs Balbir Singh (2004) 5 SCC 65 directing the consumer Foras and commissions to compensate the consumers for actual loss suffered and for mental agony, harassment, emotional suffering, physical discomfort, loss of time and loss of business also. The complainant argued that there was no such e-mail account of complainant in 2012 as reflecting in the e-mails filed by OP in its evidence by way of affidavit and therefore prayed for grant of relief in the complaint.
6. Written arguments were filed by the OP in which the OP argued that no cause of action arose in favour of the complainant since he had not paid any consideration for the software in question which the OP had installed in his computer in good faith. In this regard the OP placed reliance in the judgment Sandeep Vs Network Ltd 1998 CPR State Commission U.P. and Virender Kumar Jain Vs D.M. Haridwar 2001 CPJ SCDRC U.P. holding that only buyer or purchaser who gives the consideration is consumer and a man who has taken a service without any payment or any consideration is not consumer under CPA holding that for consumer payment/ consideration is the necessary requirement apart from placing reliance upon several other judgment of various State Commission to buttress his arguments / defence of complainant having no locus standi in capacity of consumer to press the consumer complaint. The OP also filed the copy of retail invoice no. 83 dated 12.07.2010 raised on the complainant for ‘BUSY’ software 10060040 for Rs. 7,560/- with hand written endorsement ‘blocked on 16.11.2010’.
7. We have heard the rival contentions of the parties and given our anxious consideration to the documentary evidence placed on record by both sides.

The complainant was specifically asked by this Forum to place on record the proof of payment by way of receipt or acknowledgement given by OP towards the alleged cash payment made by him of Rs.7500/- for the purchase of software ‘BUSY’ and dongle /key which he was unable to place on record citing reasons of not having taken/ been given by the OP at the relevant time.

‘Consumer’ is defined in Section 2 (1) (d) of Consumer Protection Act meaning a person who buys for consideration which has been paid or promised or partly paid and partly promised or who hires or avails of any service for a consideration paid or promised or party paid and partly promised. Therefore the terms consumer has been defined to mean a person who is -:

1. a buyer or
2. with the approval of the buyer, the user of the goods in question or
3. a hirer or person otherwise availing or
4. with the approval of such aforesaid persons, the beneficiary of the service (s) in question

with the condition super added that such buying of the goods or hiring or availing of any such service is for a consideration:-

1. paid or
2. promised or
3. partly paid or promised or
4. covered by any system of deferred payment

The Hon’ble National Commission in Shashi Gupta Vs B. Murli in RP No. 1648/2012 decided on 21.02.2013 held that payment of consideration is the basic ingredient of being a consumer and since in the said case the company had provided Lunch pack for no consideration, it was under no obligation to provide Chocolate packs which were unavailable.

8. In the present case, since the complaint was filed by the complainant alleging wrongful blocking of dongle and non upgradation of software by OP despite payment made for the same, the onus to prove the payment of consideration against the said software to OP lied squarely with the complainant which he miserably failed to corroborate by way of any documentary evidence. Per contra the e-mails filed by the OP alongwith its evidence for blocking the dongle are dated as old as November 2010 which was just four months after the installation of the software in question in the computer of the complainant which is proof enough for non payment of consideration and the follow up mails for the period 2011 to 2013 between the OP and its channel partner for blocking the complainant’s dongle repeatedly show him in the defaulter list.

Since payment of consideration is the key parameter for a consumer complaint under Section 2 (1) (d) of CPA, we are of the considered view that the present complaint is not maintainable since the complainant is not a consumer within the ambit of Consumer Protection Act in having failed to establish himself to be a bonafide purchaser of the software dongle for consideration paid to OP. We therefore dismiss the present complaint as non maintainable with no order as to costs.

9. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
10.   File be consigned to record room.
11.   Announced on 17.10.2018 

 

(N.K. Sharma)      President

(Sonica Mehrotra)  Member