PER SHRI. U.V. JAWALIKAR – HON’BLE PRESIDENT (I/c)
1) Heard Ld. Council Vidyadhar Shinde for the Complainant and Samji Joseph, Ld.Advocate for the Opposite Parties.
2) The Complainant has alleged deficiency in service on the part of Opposite Parties in fulfilling the service of Receptionist in the office of Complainant. The Complainant also prayed for compensation from the Opposite Parties on the basis of deficiency in services by Opposite Parties. It is the case of the Complainant that the Opposite Party has accepted an amount of Rs.6,180/- on 30/05/2008 in order to provide receptionist in the office of the Complainant to obey the directions of the Complainant. It is alleged in the complaint that after receipt of the said amount by the Opposite Party the Opposite Party sent a candidate to the Complainant’s office for interview. The Complainant fully frustrated as the candidate could not speak single word in English. Thus, the Complainant was not satisfied on the performance of candidate sent by the Opposite Party and therefore, the Complainant requested the Opposite Parties to send suitable candidate as per the requirement submitted by the Complainant at Exh.‘C’ page no.13. In the complaint it is also alleged by the Complainant that the Opposite Parties are served by the legal notice dtd.05/08/2008 which is at Exh.‘D’, raising the grievance about none-sending suitable candidate for the post of Receptionist and calling the Opposite Parties to comply the requirements. The acknowledgment of said notice is produced on record at Exh.‘E’. It is also alleged in the complaint that despite service of notice, the Opposite Parties did not send suitable candidate for the post of receptionist and thereby committed deficiency in service and are liable for compensation as prayed in the complaint.
3) Per contra, the Opposite Party No.1 & 2 filed their written statement on 22/06/2009 and thereby denied the allegations made by the Complainant in the complaint in toto. The Opposite Parties submitted that as per requirement of the Complainant it is the limited role of the Opposite Parties to shortlist candidate with required qualification, age and prima facie observation of relevant documents of enrolled candidate with the Opposite Parties. The Opposite Parties also stated that as per the record of Opposite Parties after registration of Complainant’s requirement, the Opposite Parties sent candidates for final interview in the office of the Complainant. After interviewing by the Complainant, the Complainant did not find suitable candidate, as per requirement of the Complainant. Therefore, the Complainant rejected their appointment on the post of receptionist. It is also contended that the appointment of receptionist is in order to earn more profit in the business of Complainant. Therefore, in the light of definition of Consumer stated in Sec.2(d) of Consumer Protection Act, 1986, the service required from the Opposite Parties is for commercial purpose and present complaint is not maintainable as the Complainant is professional and required assistant to fulfill his commercial commitments.
4) It is also contended by the Opposite Parties that the Complainant is a company secretary and partner of Sigma & Co. and LLP therefore, the evidence on record established the fact that appointment of receptionist is for the commercial commitments and the complaint is not maintainable at all. It is also contended by the Opposite Parties that the amount received by the Opposite Parties in order to send suitable candidates in the office of the Complainant for 4 years from the date of receipt of Rs.6,180/-. Thus, the complaint is pre-matured as the period to expire on 29/05/2012 and still around 3 years tenure exists in the contract. It is also contended by the Opposite Parties that the amount received towards registration charges enable the Opposite Party to shortlist the candidates as per requirement of Complainant and to send suitable candidate for final interview. The selection of proper candidates is always in the hands of Complainant and it is beyond power of Opposite Party to guarantee the suitable candidate before final interview conducted by the Complainant. It is also contended by the Opposite Party that as per the data available from all branches of Opposite Parties, suitable candidate sent in the office of Complainant for final interview and there is no deficiency in service on the part of Opposite Parties. Therefore, the Opposite Parties prayed for dismissal of complaint with proper cost.
5) We perused the complaint, documents annexed to the complaint, written statement & affidavit of evidence of the Opposite Parties and document annexed to the written statement and rival pleading of parties.
6) The Opposite Party has also filed seven judgements, in order to support incidence. In the first judgment in the case of Biilagi Sugar Mill Ltd. V/s. M/s. Kessels Engineering Works (P) Ltd. (Consumer Complaint No.46/2010) reported in NCDRC, New Delhi. The Opposite Party has relied on the observation passed in Meera Industries V/s. Modern Constructions (R.P.No.1765 of 2007 decided on 22/08/09) wherein it was held that “the services availed for commercial purpose attached to the goods in the nature of warranty, the Complainant cannot be considered as a consumer U/s.2(d)(ii) of the Act, during the warrantee period also.” However, the facts of Biilagi Sugar Mill Ltd. case and Meera Industries case are different than that the case in hand. Therefore, the ratio laid down in above case is not applicable to the case at hands. The Opposite Party also relied upon the judgement passed by the Hon’ble NCDRC, New Delhi, dtd.16/04/2010 in M/s. SKG Engineering Pvt. Ltd. V/s. Emaar Mfg. Land Pvt. Ltd. Perusal of said judgement reveals that “the Complainant Company is a manufacturing components, assemblies and hydraulic systems for agricultural and construction purposes, had booked six units of commercial space for office purposes.” Thus, the booking obviously was not for the purpose of earning livelihood by means of self employment within meaning of explanation appended to said Section 2(1)(d) of the Act. However, the facts of the said case are not applicable to the case at hand. Similarly the Opposite Parties also relied on the judgement passed by the Hon’ble Supreme Court of India, dtd.15/12/2010, in the matter of Biral Technologies Ltd. V/s. Natural Glass and Allied Industries Ltd. Perusal of said judgement reveals that “the goods sold by the appellant to the respondent/complainant amounts to ‘goods’ and such goods were purchased for commercial purpose of earning more profits.” Thus, the case at hand, the appointment of receptionist cannot be held as a commercial purpose for the reason the Complainant has appointed the receptionist in order to assist in official function, which are purely administrative in nature and it cannot be held as commercial in nature in order to gain more profit mean business of advocate, as a job of advocate based on personal skill of advocate in the Court and it always tested on the touchstone of individuals integrity knowledge and ability of advocate. The appointment of receptionist in the office cannot be held as commercial activity for the reason the act done by the receptionist while seating in the office of advocate has nothing to do with the performance of the advocate in the Court. Therefore, the ratio laid down in the judgement is not applicable to the case at hand. Similarly, the Opposite Party also relied on the judgement passed by the Hon’ble NCDRC, New Delhi, Harsolia Motors V/s. National Insurance Co. Ltd. (F.A.No.159/2004). Perusal of said judgement reveals that “if a person avails services for his ailment it would be held to be not a commercial purpose.” It is further observed in the said judgement “the meaning of the words ‘for any commercial purpose’, the services hired should be used in any activity directly intended to generate profit. Profit is the main aim of commercial purpose. Any service hired in any activity which is not directly intended to generate profit, it would be commercial purpose.” Therefore, in the case at hand, the services availed by the Complainant in order to assist the office administration and to maintain discipline and decorum in the official work only. As such, the appointment of receptionist cannot be held that an appointment for commercial purpose. Therefore, ratio laid down in the above said judgement is not applicable to the case at hand. Similarly the Opposite Party also relied on the order passed by the Hon’ble State Commission, Mumbai, (M/s. Tools International V/s. Ramnik Lal Jetha Lal Shah, reported in 2012(1) CPR 243. Perusal of order passed. In the said judgement reveal that “in case of partnership firm, carrying out business of the sale of the industrial machinery and employment of several persons in the said firm and these persons are working with the said business then the activity of these persons is a commercial activity and it cannot be said simplicitor for self employment.” It is also observed in the said judgement under Sec.2(1)(m) of the Act, in respect of commercial activities, it is individual who is to be considered and not Corporate body because specifically the explanation used the word principally and exclusively for self employment. It cannot be applicable in respect of group of persons going together with like partnership though partnership is not incorporated body under the Partnership Act. Having relied on these submissions, it is held in the said judgement that it is individual who is to be considered and not Corporate body because specifically explanation used the word “Principally and exclusively for self employment. In order to establish the Complainant has a consumer under Sec.2(1)(d) of Consumer Protection Act, 1986. Thus, the ratio of said judgement has distinguished the definition of consumer from individual to the group of persons. In our candid opinion, facts of the M/s. Tools International case are not applicable to the case at hand. For the reason, the services availed by the Complainant are in the individual office of Complainant and not in the capacity of partners of the firm. Therefore, ratio laid down in the said order is not applicable to the case at hand. The Opposite Party also relied on the order passed in the case of M/C. Rana V/s. Vijay Kumar, reported in the Hon’ble Himachal Pradesh State Commission, Shimla, in F.A.No.497 of 2007. Wherein it is held that as per the Section 2(1)(d) of the Consumer Protection Act, a person who avails the services for commercial purpose excludes himself from the definition of Consumer. Hence, complaint filed by the Complainant is not maintainable. In the case at hand, the appointment of receptionists seeks duties as directed by the Complainant in the office of Complainant and it cannot be held as commercial activity of the Complainant. While appointing receptionist, is not at all a commercial activity as appointment itself is to ease official duties and to aid smooth functioning in the office of the Complainant. It is to be noted that the functioning of receptionist in the office has no relevant with the performance of the advocates in his professional capacity in the Courts. Therefore, there is no doubt in holding that the Complainant is a consumer of the Opposite Parties. Perusal of the said judgement reveals that the Complainant availed services of Opposite Parties and as per requirement of the Complainant, the Opposite Parties had sent suitable candidates to the Complainant. In the case, the complaint was filed after expiry of the contract period therefore, complaint was liable to be dismissed. In the said case the Opposite Parties have sent three candidates to the Complainant and the copy of register was submitted in the firm. However, in the case at hand the complaint was filed before expiry of the contract period due to no response except few candidates from the Opposite Parties and the documents filed by the Opposite Parties revealed only two names of suitable candidates against which one has attended final interview as per oral argument of the Complainant. Therefore, the facts in the case Anu rich in stricto-senso shall not be applicable in the case at hand.
7) The status of the Complainant in the present case were under Sec.2(1)(d) has to be considered minutely. The reference can be made to explanation appended. Perusal of said explanation make it clear that any service availed by means of self employment it oust the inclusion of commercial purpose. Similarly in the case at hands the Complainant, though a Company a firm of solicitor and advocates and the Complainant being partner, the service availed by the Complainants from the Opposite Parties, falls under this explanation and the service required to the Complainant cannot be termed as a service hired by the partnership firm. As such defence put forth by the Opposite Parties in their written statement about appointment of receptionist in the office of the Complainant was for commercial purpose, has no force in the eyes of law. Therefore, it has to be considered as service availed by the Complainant are not for commercial purpose. However, the infrastructure and amenities required to the advocate by any stench of imagination is under the clause of commercial purpose. Therefore, having recorded the above said legal position described under Act, the service availed by the Complainant does not fall under commercial service. It may be noted that the further formation of partnership act and more particularly basic ingredient of partnership, sharing loss and profit equally does not applicable to present case because the firm of advocates is not governed by this principal. It is the personal ability of an advocate to address the Court and the judgement of Judge is always binding on respective parties. Thus, as per the provisions of Partnership Act, a firm of advocates fulfilled the essential ingredient of partnership about sharing of profit and loss, as a association of advocate though named as partner, has in the present case cannot be held to be a association of an individuals for the purpose of Partnership Act.
8) In the light of above discussion it is to be noted that the Complainant approached the Opposite Party availing services of appointment of receptionist in his office and entered into an agreement as per Exh.‘B’. Membership fee paid by the Complainant was valid for 2 years from 30/05/08. Thus, the Complainant during tenure of 2 years which is ending on 29/05/2010 required to wait for due discharge of obligation cast on the Opposite Party to send receptionist. However, the Complainant approached this Forum on 05/03/09 thereby himself committed a breach of agreement entered with Opposite Parties. It is further required due consideration that the Complainant agreed with the terms and condition of Opposite Parties including the registration period for 2 years. Therefore, we are of the view that the Complainant approached this Forum before completion of agreed period of 2 years. Hence, we hold that the complaint is pre-matured on the date of filing and the Complainant and did not establish any cause of action for filing of present complaint and this complaint is filed before occurring of cause of action.
9) On perusal of documents on record it reveals that the Opposite Parties did certain efforts in order to send suitable receptionist to the Complainant. However, the availability of receptionist and the requirement of the Complainant cannot be measured by the Opposite Party as the need of Complainant and ability of receptionist cannot be major by Opposite Party in stricto-senso. It is to be noted that the performance of receptionist is valued on the basis of the perception of Complainant by the Complainant himself during final interview with the receptionist. Therefore, non-selection of receptionist by the Complainant cannot be held to be a deficiency in service by the Opposite Parties. Therefore, in our candid view, the Complainant has not established that there is a deficiency in service on the part of Opposite Parties.
10) In the light of above findings and due consideration of rival pleadings of Complainant and the Opposite Parties and the judgements cited by the Opposite Parties, we consider it just and proper to pass following order –
O R D E R
i. Complaint No.85/2009 is dismissed with cost.
ii.The Complainant shall pay total amount of Rs.5,000/- (Rs.Five Thousand Only) to the Opposite Party No.1 & 2 within
one month from the date of order, for filing pre-matured complaint as there is no cause of action for filing of complaint.
iii.The Complainant is directed to comply with the above order within one month from the receipt of this order.
iv.Certified copies of this order be furnished to the parties.
