Per – Hon’ble Justice Mr. S. B. Mhase, President
Heard Adv. P. Y. Shankar, learned counsel for the Complainant.
[2] The Complainant is a company registered under the Companies Act, 1956. The Complainant is manufacturer of clothes dealing in customized tailoring of garments and also ready garments with other clothing accessories. The Complainant has expanded its business and is also constantly inventing and innovating new technology in tailoring of garments and accordingly to synchronize the entire procedure of production of garments and also for better co-ordination with the factory and the various retail outlets in country, the Complainant was looking for a complete software solution, which would augment the functioning of business effectively and for this purpose, the Complainant desired to install a software which would enable the Complainant better management of transactions involving Billing (Cash Memos), Sales Return/Cancellation, Gift Voucher Sales, various schemes offered by the Complainant to the customers, advance vouchers, salesman details, agent details with contact details, user defined calculations for bills, order management for creating order, replenishment of stock, approvals to create, modify, inventory management, customer details, Sales Forecasting & merchandising, order management module and other modules/applications and for this purpose, the Complainant negotiated with the Opponent, who is the ‘service provider’ in the software industry. Since, there is a failure on the part of the Opponent to provide service as per the contract between the Complainant and the Opponent, the Complainant has filed this complaint.
[3] Above-referred purpose eloquently shows that the software was to be employed for ‘commercial purpose’, as narrated by the Complainant in the complaint, which is reproduced above. This is not a case of exclusively self-earning for livelihood by self-employment of the Complainant since the Complainant is a company registered under the Companies Act, 1956 and the Complainant has a manpower force employed of more than 50 employees and the Complainant is having outlets throughout the country. Therefore, this case is covered by the Apex Court judgment reported in II-(1995)-CPJ-1-(SC) (In the matters of Laxmi Engineering Works Vs. P. S. G. Industrial Institute). We do not find that the Complainant is a ‘consumer’ within the definition of Section-2(1)(d) of the Consumer Protection Act, 1986. The learned counsel for the Complainant tried to rely upon decision of Orissa State Consumer Disputes Redressal Commission in I-(2006)-CPJ-387 (In the matters of Kores India Limited Vs. Bhaskar Patra & Anr.). However, said decision is not applicable in the facts and circumstances of the present case and more specifically in view of the ratio laid down by the Apex Court (referred supra), and therefore, what we find that reliance placed by learned counsel for the Complainant on the decision of the Orissa State Consumer Disputes Redressal Commission is not proper and we hold that the complaint is not tenable under the Consumer Protection Act, 1986 and it is hereby rejected. No order as to costs.
Pronounced & dictated on 6th September, 2011
