Chandigarh

DF-I

CC/379/2016

Atul Kumar Sharma - Complainant(s)

Versus

Plus Infosys - Opp.Party(s)

Gurpreet Singh Dhillon

23 Mar 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

 

 

 

                               

Consumer Complaint No.	:	CC/379/2016
Date of Institution	:	25/05/2016
Date of Decision	:	23/03/2018

 

Atul Kumar Sharma son of Shri Dharamvir Sharma, resident of House No.1278, Sector 37-B, Chandigarh, presently residing at, 4 Summer St. Apt. A 101, Norwalk Connecticut, United States of America, Zip 06851.

…..Complainant

V E R S U S

Plus Infosys, FF-29, Silver Star Complex, Chandlodiya, Ahmedabad, Gujarat-382481, India through its CEO, Chetan Patel.

……Opposite Party

CORAM :	SHRI RATTAN SINGH THAKUR	PRESIDENT
	MRS. SURJEET KAUR	MEMBER
	SHRI SURESH KUMAR SARDANA	MEMBER

                           

 

                                  

ARGUED BY	:	Sh. Gupreet Singh Dhillon, Counsel for complainant
	:	OP ex-parte

 

Per Rattan Singh Thakur, President

1.         Allegations are, OP entered into a contract with the complainant on 2.4.2015 for development, consequential testing and removal of anomalies/ defects/bugs of Software/App, which was to be created at the behest of the complainant, and once the software/app was completed and approved by the complainant, the same was to be uploaded to the app store for means of earning livelihood by means of self-employment. Maintained, time was the essence of the contract and it was to be completed within 10 weeks, but, the OP failed to complete it in the nick of time. It is also the case, numerous reminders were issued and complainant had already paid 100% of the payment due from him to OP, but, the OP did not complete the bargain.  Emails were sent, but, no heed was paid. Since the developed software was to be the livelihood of the complainant and with a view to still amicably sort out the dispute, he again wrote email dated 25.10.2015 reminding the OP of its obligation.  Thereafter on 3.11.2015, notice was sent which was not replied. Hence, on these allegations, refund of Rs.3,00,000/- paid for developing the software alongwith compensation for deficiency in service, mental agony and litigation expenses prayed for.
2.         OP contested the complaint and filed written statement, inter alia raising the preliminary objections of complaint being not maintainable as the complainant is not a consumer and had hidden the material facts. Preliminary objection was also raised qua the territorial jurisdiction of this Forum to entertain the present complaint as the agreement was entered into at Ahmedabad. Other averments also denied and it is the case, complainant is not the user of the product developed by the OP, therefore, he falls outside the definition of consumer.  It was for commercial purpose.  Rest of the averments were denied. On these lines, the cause is sought to be defended.
3.         Parties led evidence by way of affidavits and counter affidavits and also annexed documents.
4.         Subsequently, none appeared on behalf of the OP to address arguments, therefore, vide order dated 20.3.2018, it was proceeded against ex-parte.  We have heard the learned counsel for the complainant and gone through the record.
5.         Firstly, we shall take up the preliminary point raised by OP of complainant not being a consumer and it was purely a commercial transaction.  The basis of this dispute is the agreement dated 2.4.2015.  The opening paragraph of the agreement is reproduced below :-

“THIS AGREEMENT, between “service buyers” (hereinafter referred to as “ATUL K SHARMA” is having its principal place of business at 4 Summer St. Apt. A 101, Norwalk, CT 06851 and “service provider” (hereinafter referred to as “Plus Infosys”) having its registered office of business at FF-29, Silver Star Complex, Chandlodiya-382481, Ahmedabad, Gujarat, INDIA”

This itself shows the complainant is a businessman and his place of business is 4 Summer St. Apt. A 101, Norwalk, CT 06851 (USA).  The OP had sworn in affidavit that the said application was to be developed for public at large and thereby earning profit.  The complainant in his consumer complaint could not detail what bonafide use or self-employment was to be done by him.  If it was so, he could not have referred his place of business as 4 Summer St. Apt. A 101, Norwalk, CT 06851 (USA).  That itself indicates, the complainant is a businessman.  Not only that, in the opening paragraph of the consumer complaint also, the complainant has referred himself to be resident of H.No.1278, Sector 37-B, Chandigarh, presently residing at 4 Summer St. Apt. A 101, Norwalk, Connecticut, United States of America.  In this regard, Section 2(1)(d) of the Consumer Protection Act is relevant and the same reads as under :-

 “(d) "consumer" means any person who, —

(i)            xxx           xxx           xxx

(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;” 

 

A bare perusal of the provision shows, it does not include a person who avails the service for commercial purpose. Thus, we do agree per record of contention raised that the complainant is not a consumer and, therefore, he is not entitled to maintain the present consumer complaint before this Forum.

6.         The second attack of OP is, this Forum has got no territorial jurisdiction to entertain the present consumer complaint.  The main office of the OP is situated at Chandlodiya, Ahmedabad, Gujarat.  It is also the admitted case, agreement dated 2.4.2015 was executed at Chandlodiya, Ahmedabad, Gujarat.  Perusal of the body of the present consumer complaint does not show cause of action has arisen at Chandigarh.  Even in the address mentioned in the title of the complaint, the present address of the complainant is mentioned to be 4 Summer St. Apt. A 101, Norwalk Connecticut, United States of America, Zip 06851. Mere residence of the complainant, may be for a temporary period at Chandigarh, will not clothe this Forum to entertain this consumer complaint.  There are averments of breach of terms and conditions of the agreement entered into inter se parties. It was executed as well as its conditions were breached at Ahmedabad, Gujarat and not at Chandigarh. Section 11 of the Consumer Protection Act deals with jurisdiction and the same reads as under:-

“11.  Jurisdiction of the District Forum.—

(1)            xxx                   xxx                   xxx

(2)    A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,—

1. the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain, or
2. any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry on business or have a branch office, or personally work for gain, as the case may be, acquiesce in such institution; or
3. the cause of action, wholly or in part, arises.”

 

7.         Applying and taking into account the facts and material produced on record, it is nowhere made out that the OP resides or carries on business within the local limits of Chandigarh.  It is also not made out, terms and conditions of the agreement were breached within the local limits of this Forum. However, this objection not seriously contested at initial stage and reply on merits also furnished. Thus, both parties submitted to jurisdiction of this Forum.
8.         In view of the above discussion, the present consumer complaint is dismissed. Parties are left to bear their own costs.
9.         The certified copies of this order be sent to the parties free of charge. The file be consigned.

 

	Sd/-	Sd/-	Sd/-
23/03/2018	[Suresh Kumar Sardana]	[Surjeet Kaur]	[Rattan Singh Thakur]
hg	Member	Member	President