Order Date: 31.10.2023

The petition dated 16.02.2023 in the form of M.A. -14/2023 was taken up for hearing and now today for passing judgment.

This is the petition for maintainability of the complaint by the O.P. Nos.4 & 5.

Contention under the petition is that the Complainant filed this instant complaint alleging deficiency in service by  all the Opposite Parties i.e., O.P. Nos.1 to 3 and O.P. Nos.4 & 5 when only O.P. Nos.4 & 5 raised this ground of non- maintainability of the complaint dated 09.12.2022.

Contention under the petition is that, this Complainant is a business farm and caries on business of leather goods. On 05.01.2021 Opposite Party Nos.1 to 3 provided one swipe machine to the Complainant. The Complainant received payment by swiping ATM Cards/Debit Cards from its customer through this machine at his account maintained by Indian Bank. However on 08.05.2022 it was discovered by the Complainant that the amount of Rs.34046.89 received through said swipe machine till that day was not transferred in the account of the proprietor of the business.

But this Complaint is not maintainable since it is wholly a commercial dispute. The Complainant is a businessman or business entity and carries on business of leather goods. Further to be mentioned this disputed amount has been received through various customers of the Complainant which will establish that the entire transaction is commercial one or in nature. That apart this Complaint is also bad for non-joinder of necessary parties. The Indian Bank to which the account lies of the Complainant not made party to this proceeding or the name of the concern party by which the swipe machine was installed and payment was proceeded, that also not mentioned. This  Complainant also failed to explain why ICICI Bank have been made party to this proceeding because alleged machine was issued by ICICI Merchant Service which is entirely a separate entity and no relation with this o.ps or this disputed account was  linked to this Swipe Machine is maintained  with ICICI Bank. The Consumer Protection Act, 2019 is specially states that a person who hires or avail any service for any commercial purpose does not fall within the purview of the consumer. Furthermore no part of the complaint petition avert that the subject business is being run by the proprietor for the purpose of earning his livelihood and as such the  Complainant does not fall within the purview of the consumer. So in view of that Complaint is merit less and Complainant does not fall within purview of consumer. Hence, the Complaint is not maintainable. It should be dismissed. 

The petition in the Form of M.A.-14/2023 has been objected by the Complainant against the point of maintainability as raised by the O.P. Nos.4 & 5.  Complainant submitted that this dispute raised in present complaint is not at all a commercial dispute.  The Complainant is a business firm of bags and leather goods. But this Complainant does not sell or purchase any bags or leather goods from the Opposite Parties.  Complainant receives payments by swiping ATM Card/Debit Card of the customer and scanning QR Code through swipe machine. The opposite parties provided the said machine to the Complainant and they also undertake to provide service so after purchased of the machine there is a relation in between Complainant and Opposite Party as service provider. It is not any commercial transaction in between the parties. The Indian Bank is a bank of Complainant and only credit the amount which is/was transferred by the customer or this Complainant received though swipe machine. Practically this Indian Bank has no role in the matter or dispute. For that reasons Complainant did not include the Indian Bank. Moreover, this respondent Nos.4 & 5 who now filed this petition clearly admitted at their written version that in the year 2009 ICICI Bank form an alliance with ICICI Merchant Service regarding business of providing Debit Card/Credit Card, Payment processing service, merchant acquiring services which enables its merchants to receive payment from their ends and customers through Debit Card, Credit Card either by physical swiping card or through internet i.e. through point of sale terminal/payment gateway using the proposed parties payment gateway platform. That apart technical problems and routine service work was scheduled to be conducted by the employee of respondent Nos.4 & 5 i.e., ICICI Bank. Accordingly, O.P. Nos.4 & 5 has a role behind this selling of swipe machine and there also part of service provider. So this petition on the ground maintainable of the entire suit as filed by the O.P. Nos.4 & 5 is subject to be rejected.

This Commission carefully perused both petition and it’s objection u/S. 69 of C.P. Act, 2019.

D E C I S I O N

Having an immense   thought on the contention of O.P.Nos.4 & 5 with regard to the maintainability of the complaint by the Complainant, the Commission opines/observes that the C.P. Act does not restricts or objects the use or utility of any goods on purchase either for personal or for his business purpose but it objects or restricts as to the transaction of that goods as to it’s way, then if it commercial it would be bar (if not for maintaining lively hood). In this instant contention of complaint,  Complainant was provided or purchased the machine/goods with valued consideration from the merchant as O.P. Nos.1 to 4 for the purpose of using or utilizing it as a machine of receiving money from his customer who purchased the separate products of his business from his shop  i.e. the leather goods.   So, the utility or use of machine may be personal or for his business purpose, but it is not a fact that he himself or through farm is doing the business of this machine itself. It is not any fact that the machine itself is any business product of transacted material for any material gain or financial gain that means, as for example if this  Complainant being any proprietor of shop purchased various or numerous these type of machines for selling in the sphere of commerce for his financial gain, then obviously being any dealer or retailer of such machine- selling, he may be excluded  by this Act of  being a consumer in the form of commercial range because at that situation machine itself is/was a product of commerce which was /were any subject of sell and would keep away this  Complainant as a commercial consumer for financial gain or loss.  

But here we find, machine, it itself is a personal purchase and being used either for his personal purpose or of his business purpose in activation to or receiving the money from the customer or to give advantage to himself from exempting himself to go to the banking authority/financial institution for depositing his money personally taken from the customer on behalf of the farm or himself.          

                   Then obviously the goods (swipe machine) used for any commercial purpose would not bar him of being consumer in respect of his specific purchase/ receipt of machine from O.P. Nos.1 to 4.  

Accordingly, when the machine itself is not any product of business for any financial gain, this Complainant would not come under any black eye of consumer act or bar for any filing complaint on the ground of commercial transaction.  If O.P numbers really provide or sell the machine to the Complainant, they must be the service provider of the Complainant.

Hence, the petition as filed by the O.P.Nos.4 & 5 is not subject to be allowed at this stage considering entire case of the  Complainant as non maintainable against them, on obeying any reason of being used in commercial purpose .

 But it is fact at present we find no direct involvement of these O.P. NOs.4 & 5 in the transaction of purchasing machine by the Complainant, but at this stage it cannot be declared without taking any proper trial or detail argument on the point that this O.P. Nos.4 & 5 has no involvement in selling this machine or they are not in a position of being service provider behind this machine.

Thus the M.A. case being No.14 of 2023 under C.C. Case No.229/2022 is thus disposed of.

To 08.12.2023 for filing evidence on affidavit by the Complainant positively.                 

Let a copy of this or be given to the parties on free of cost.

Member                                   Member                               President                

  D.C.D.R.C., Purba Bardhaman    D.C.D.R.C., Purba Bardhaman       D.C.D.R.C., Purba Bardhaman