This Revision Petition has been filed by the petitioner – Educom Solutions Ltd., against the order dated 02.07.2015 of  the State Commission passed in FA No. 229/2014.

2.      Shortly stated, the complaint is that the complainant – respondent  paid an advance of Rs.60,000/- for supply of certain hardware materials from the petitioner – Educom Solutions Ltd. It is stated that the same was  required in the school for Smart Classes for the students.  It is further alleged that the goods supplied were of an old technology and as such the complainant requested the OP – Educom Solutions  to take back those materials but the same were not taken back nor the advance money was returned. As such it was a serious deficiency in service and also a case of supplying sub-standard material.  The complainant accordingly filed the consumer complaint before the District Forum. The complaint was resisted by the petitioner/opposite party on the ground that the material was already supplied and the complainant was not the consumer as the purchase was for commercial purpose. A stand was taken by the opposite party that the complainant has filed the case only to avoid the payment of the balance amount as per the agreement between the parties. 

3.      The District Forum allowed the complaint  bearing No. 120/2013 vide its order dated  24.04.2014  and ordered as under :-

              “In the of the above said facts, we arrive at this conclusion that correct/proper  goods / articles have not been given / provided to the complainant by the opposite parties and they are guilty.  Agreement between both the sides is hereby cancelled and the OPs are directed that they shall take back all the goods / articles  sent  to the  complainant, within 45 days from the date of  this order and shall give back the sum of Rs.60,000/-  taken as advance along with interest of 6% upto the date of payment from the date of receiving, to the complainant and shall return all the papers, as well as shall also pay Rs.5,000/- towards mental harassment and shall also pay Rs.2,000/-towards  litigation costs to the complainant.  In case of not  making payment within requisite period, then from the date of order to the date of payment, interest at the rate of 9% shall be payable on the whole amount”.

4.      Aggrieved by the order of the District Forum, the OP/petitioner herein preferred Appeal No. 229/2014 before the State Commission.  The State Commission vide its order dated  02.07.2015 dismissed the appeal.

5.      Hence this revision petition.

6.      Heard the learned counsel for both the parties and perused the record.   Learned counsel for the petitioner stated that the complainant had agreed to purchase the Smart Classes Hardware from the petitioner under the Tripartite Agreement dated 27.09.2011.  This was purely a commercial transaction by the complainant and therefore the complainant was not a consumer.  The complainant is charging fees from the students and therefore they are running the institution for commercial purpose.  They wanted to raise the standard of their school with the smart classes with the purpose of earning more from the students.   As it is a school, the complainant is not covered under  the Explanation attached to Section 2(1)(d) of the CP Act, 1986, defining “consumer”.  In this regard, the learned counsel referred to the case Engineering Works Vs. P.S.G. Industrial Institute, (1995) 3 SCC 583  wherein the Apex Court has considered various aspects of commercial purpose and other expressions such as “self-employment” and “earning livelihood”.  The Apex Court has finally reached to the conclusion that it would depend on the facts and circumstances of each case whether the purchaser could be considered for commercial purpose.

7.      Learned counsel for the petitioner further stated that a Tripartite Agreement was entered into on 27.09.2011.  Later, in January, 2013, when the complainant did not make any other payment apart from the initial payment of Rs.60,000/-, the petitioner gave a notice to the complainant  for  paying the  unpaid  installments to the petitioner as per the agreement.  However, the complainant had the wrong intentions and did not want to pay further installments and therefore he filed a complaint by forging documents like the observations of the principal which were never communicated to the petitioner / OP.  Moreover, there was no date prescribed for supplying of the hardware and for completing the installation in the Tripartite Agreement.   It was alleged by the learned counsel that on all the communications sent by the third-party in the Tripartite Agreement, the complainant had endorsed certain deficiencies.  However, they were not brought  to the notice of the petitioner nor these papers were sent to the petitioner.  As an after-thought only, these endorsements have been forged by the complainant, to file the complaint.

8.      Learned counsel stated that  it is not clear as to how these documents were sent to the petitioner  because the complainant has not filed any proof in this regard whereas all communications between the parties were to be dealt in a specific manner as mentioned in Clause 9.9.2 of the Tripartite Agreement, which reads as under :

“9.9.2.  Any notice or other communication shall be sent by in any two of the following modes of communication, these being :

Registered mail, email (in PDF Format), reputed courier, facsimile or hand delivery”.

9.      The complainant  has  not filed  any proof of the communications having been sent through any of these modes.  The District Forum has not considered this point  and  has  believed these endorsements to be true.  It was further argued by the counsel that the District Forum has ordered the cancellation of  the  agreement  whereas there was no such relief sought by the complainant.  A Tripartite Agreement clearly provides for proceedings under arbitration in case of any dispute.  Therefore, the complainant was  not  entitled to file the complaint before the consumer forum  as  this  was against the said provision of the Tripartite Agreement  to which the complainant was also a party. 

10.    On the other hand, the learned counsel for the respondent/ complainant  stated that on the letter dated 23.01.2012 sent by third-party Assistant Manager (Finance & Accounts) Edusmart Services Pvt. Ltd., which  is  the  third-party in the Tripartite Agreement addressed to the Principal of the  Sadar Alam Memorial Secondary School and on this letter, a clear  endorsement  dated 08.02.2012 was  made by  the Principal that “the school was not satisfied with  the contents of Educomp and also the old system of hardware. The school will not continue the system if all the requirements will not be fulfilled”.  Thus it was very much clear that  the school had expressed its dissatisfaction with the material supplied by the OP.

11.    The learned counsel further stated that the school is affiliated to CBSE and is not a commercial institution.  The school never intended to earn any extra money after installing the Smart Classes.  Moreover, the school is not doing any trading in the equipments supplied by the OP, therefore, the complainant is very much covered under the definition of “consumer” and there is no need for the complainant to take shelter under the Explanation attached to Section 2(1)(d) of the C.P. Act, 1986. 

12.    It was further stated that the facts have already been seen and verified  by  both the lower fora  and  the  scope under revision petition is very much limited as the facts cannot  be reassessed by this Commission in the revision petition.  The complainant has found out that the material supplied was out-dated and was not the latest one.  Had  the  school  used  that material, the  objective of Smart Classes would not have been fulfilled.  Moreover, the order is only for the refund of the paid amount  and there is no denial from the petitioner that the amount of Rs.60,000/- was paid to them.  The complainant is a registered Society and not an individual. 

13.    I have given a thoughtful consideration to the arguments  advanced by both the parties and  have  examined the material on record.  The fora  below have given concurrent findings and the facts cannot be reassessed in the revision petition as laid down by the Hon’ble Supreme Court  in Mrs. Rubi (Chandra) Dutta vs. United India Insurance Company, 2011 (3) Scale 654, which reads as under; 

“Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous)  interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken, by setting aside the concurrent finding of two fora”.

14.    Lourdes Society Snehanjali Girls Hostel and    Ors. Vs. H&R Johnson (India) Ltd. and others, (2016) 8 Supreme Court Cases 286, wherein, the Hon’ble Supreme Court has held the following:

“23.  The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity.  In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons.”   

15.    Both the fora below  have accepted  the fact that the material supplied was out-dated.  This Commission is not going to interfere with the  facts as assessed concurrently by the fora below in the light of the above referred judgments.  

16.    Thus the refund of the paid amount is totally justified.  It is also a fact that the complainant has not paid as per the agreement and therefore the OP had to give notice to the complainant for paying the outstanding amounts.  It seems that both the parties have violated the agreement and, therefore, in this situation, the ends of justice would meet if the amount is refunded to the complainant by the petitioner / OP without any interest and without any compensation, within a period of 45 days from the date of this order. 

17.    Based on the above discussion, the revision petition is partly accepted and the order of the State Commission is modified to the extent  that  the  petitioner /OP would be liable to pay Rs.60,000/- to the complainant /respondent, within a period of 45 days from the date of this order along with cost of litigation of Rs.2,000/- as ordered by the State Commission.  The order of the State Commission in respect of interest payable @ 6% p.a. and compensation of Rs.5,000/- is set aside.  If the amount  is  not refunded within a period of 45 days from the date of this order, then this amount shall fetch an  interest @ 10% p.a., on the total amount  of  Rs.62,000/- (Rs.60,000/- + Rs.2,000/-) from the date of this order, till actual payment and the  petitioner shall be liable to pay the same to the complainant.