Haryana

Karnal

CC/549/2020

M/s Sainik Surveillance & Security Services Private Limited - Complainant(s)

Versus

The Central Soil Salinity Research Institute - Opp.Party(s)

J.P. Duhan

12 Aug 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                       Complaint No. 549 of 2020

                                                        Date of instt.02.12.2020

                                                        Date of Decision:12.08.2022

 

M/s Sainik Surveillance & Security Services Pvt. Ltd. plot no.1100 (P) Sector 46, Gurgaon-122003, through its proprietor Jasvir Singh Gulia resident of plot no.1100 (P) Sector 46, Gurgaon-122003.

 

                                               …….Complainant.

                                              Versus

 

The Central Soil Salinity Research Institute Karnal through its Director.

 

                                                                      …..Opposite Party.

 

Complaint Under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.

              Sh. Vineet Kaushik……Member 

      Dr. Rekha Chaudhary……Member

          

 Argued by: Shri J.P.Duhan, counsel for the complainant.

                    Shri Amit Munjal, counsel for the opposite party.

 

                    (Jaswant Singh President)

ORDER:   

 

                

                 The complainant has filed the present complaint Under Section 35 of Consumer Protection Act, 2019 against the opposite party (hereinafter referred to as ‘OP’) on the averments that complainant is a contractor and proprietor of M/s Sainik Surveillance & Security Services Pvt. Ltd. plot no.1100 (P) Sector 46, Gurgaon 122003. OP has given the contract to the complainant to supply the Manpower for a period of 01.11.2014 to 30.04.2015, vide letter dated 20.10.2014. At the time of giving the contract the OP has taken as security of Rs.5,00,000/- with the assurance the security amount would be returned after the completion of the work.  The said security amount is still lying with the OP. After taking the contract the complainant has completed the work sincerely, honestly and there is no complaint regarding the work, act and conduct of the complainant. After completion of the contract period, complainant applied in the office of OP for the refund of the security amount, but OP postponing the matter on one pretext or the other and till today failed to return the security amount. The OP inspite of refunding the security amount served a letter dated 28.09.2020 whereby the OP asked the complainant to correct the EPF account of contractual staff-registered. It is averred that the labourer staff provided by the complainant to the OP was purely on temporary basis and as such the complainant is not required to fill up the EPF account of the employees who have engaged on temporary basis. Moreover, the complainant submitted the list of the labourers those who did job and as per this list of contractual labourer employee EPF was deposited to the concerned department by the complainant and regarding that voucher of EPF already submitted in the office of the OP at the time of submitting the bills and all EPF details had been given. The abovesaid security amount has been taken by the OP regarding the aforesaid work and the complainant has completed the work and now the OP is liable to return the said amount, but inspite of repeated requests and reminders, the OP has not returned the security amount. Then complainant served a legal notice dated 09.10.2018 upon the OP to make the payment of Rs.5,00,000/- with interest @ 24% per annum from the date of its accrual till the date of its payment within one month and to pay Rs.1,00,000/- on account of mental agony pain and suffering. The legal notice duly received by the OP, but inspite of the receipt of the notice OP neither paid the aforesaid amount nor replied the same. In this way there is deficiency in service on the part of the OP. Hence this complaint.

2.             On notice, OP appeared and filed its written version raising preliminary objections with regard to maintainability; cause of action; locus standi; concealment of true and material facts and jurisdiction as complainant is not a consumer of the OP. Rather the complainant is a “Contractor” (as admitted by the complainant in his complaint), who had entered into a Contract Agreement dated 27/28.10.2014 in response to Tender dated 23.09.2014 for the supply of man-power to the OP. so, it is clear that the complainant remained in the capacity of “Contractor” only and complainant cannot be termed as “consumer” of the OP. Even otherwise, as per clause 32 of the Contract Agreement dated 27/28.10.2014 in case of failure of settlement dispute shall be referred to the Sole Arbitrator so appointed shall be final and binding on the parties. Arbitration Proceeding shall be governed by the Arbitration and Constitution Act, 1996. Hence, this Commission has no jurisdiction to entertain and try the present complaint. On merits, it is wrong to say that the work has been completed satisfactorily and there is no complaint against him. It is further pleaded that 22 complaints were received in the office of the OP from various labourers supplied by the complainant’s firm that their EPF has not been deposited by the Contractor. The matter was taken up by the OP with the complainant/contractor firm vide memo dated 08.01.2019, 17/22.07.2019, 16/19.11.2019, 04.08.2020, 28/29.09.2020. It is further pleaded that it is the duty of the complainant/contractor to submit all the details of EPF entitlement of the man-power supplied by the complainant to the OP.  It is clearly mentioned in the Contract Agreement that the Contractor shall abide by the Labour Laws made by the Government time to time. The OP has made payment of all the bills raised by the complainant but complainant has not supplied the list of contractual staff for whom the EPF has been deposited by the complainant’s firm, despite repeated requests. It is further pleaded that complainant has only attached “challans” with the bill but the list of the staff whose EPF to be deposited is not attached with the same and various labourer are approaching the OP with a complaint that Contractor/complainant has not deposited their EPF. This act and conduct of the complainant is certainly doubtful, the list is not being supplied to the OP knowingly and intentionally by the complainant and he is creating pressure upon the OP repeatedly to release its “Security” without observing the performance of the complainant firm as per Contract Agreement. It is further pleaded that the refund of performance security is subject to “satisfactory work” by the Contractor as per Contract Agreement. It is further pleaded that on the one hand the complainant has not deposited the EPF amount of all the labourers provided to the OP and on the second hand, he is pressing hard for release of security with interest. As per point no.22 of the tender document, no interest is to be paid on the security money deposited by the Contractor with the OP/CSSRI. It is further pleaded that the security of the complainant is “withheld” presently in view of the various complaints received from the labourers to the effect that the Contractor/complainant has not deposited their EPF. There is no deficiency in service on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             Parties then led their respective evidence.

4.             Complainant has tendered into evidence his affidavit Ex.CW1/A, postal receipt Ex.C1, legal notice Ex.C2, postal receipt dated 22.10.2020 Ex.C3, copy of letters dated 14.08.2015, 18.12.2015, 04.08.2020 Ex.C4 to Ex.C6, copy of list of manpower Ex.C7, copy of reply dated 28.12.2015 Ex.C8, copy of letter dated 30.12.2015 Ex.C9, copy of EPF list of labourers Ex.C10, copy of EPF list of labourers letter dated 17.07.2019 Ex.C11, copy of reply dated 05.09.2019 Ex.C12, copy of reply of mail regarding security deposit Ex.C13, copy of speed post dated 04.08.2020 Ex.C14, copy of list of EPF labour Ex.C15, copy of non-submission of EPF dated 27.11.2019 Ex.C16,  copy of list of EPF labourers Ex.C17, copy of mail dated 23.09.2020 Ex.C18, copy of letters dated 28.09.2020, 27.08.2020 Ex.C19 and Ex.C20, copy of list of labourers Ex.C21 and Ex.C23, copy of correction in EPF letter dated 28.09.2020 Ex.C22,  copy of Agreement Ex.C24, copy of email Ex.C25, copy of challan of EPF Ex.C26 and closed the evidence on 16.12.2021 by suffering separate statement.

5.             On the other hand, learned counsel for OP has tendered into evidence affidavit of Dr. Parbodh Chander Director Ex.OP1/A, copy of endorsement Ex.OP1, letter dated 08.10.2014 Ex.OP2, copy of Contract Ex.OP3, Copy of Tender Ex.OP4, copy of Tender letter dated 201.2.2014 Ex.OP5, copies of letters to complainant Ex.OP6 to Ex.OP10, copy of reply to legal notice Ex.OP11, postal receipt Ex.OP12, copies of letters from manpower Ex.OP13 to Ex.OP31 and closed the evidence on 21.04.2022 by suffering separate statement.

6.             We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties.

7.             Learned counsel for complainant, while reiterating the contents of complaint, has vehemently argued that that complainant is a contractor and proprietor of M/s Sainik Surveillance & Security Services Pvt. Ltd. OP has given the contract to the complainant to supply the Manpower.. At the time of giving the contract the OP has taken as security of Rs.5,00,000/- with the assurance the security amount would be returned after the completion of the work. The complainant has completed the work and there is no complaint regarding the work, act and conduct of the complainant. After completion of the contract period, complainant applied for the refund of the security amount but inspite of repeated requests and reminders the OP has not return the security amount and lastly prayed for allowing the complaint.

8.             Per contra, learned counsel for OP, while reiterating the contents of written version has vehemently argued that complainant is not a consumer of the OP. Rather the complainant is a “Contractor” so complainant cannot be termed as “consumer” of the OP. As per clause 32 of the Contract Agreement dated 27/28.10.2014 in case of failure of settlement dispute shall be referred to the Sole Arbitrator so appointed shall be final and binding on the parties. Thus, this Commission has no jurisdiction to entertain and try the present complaint.  He further argued that complainant has not completed the work satisfactorily. He further argued that 22 complaints were received in the office of the OP from various labourers supplied by the complainant’s firm that their EPF has not been deposited by the Contractor. It is the duty of the complainant/contractor to submit all the details of EPF entitlement of the man-power supplied by the complainant to the OP. He further argued that the OP has made payment of all the bills raised by the complainant but complainant has not supplied the list of contractual staff for which the EPF has been deposited by the complainant’s firm, despite repeated requests. He further argued that the refund of performance security is subject to “satisfactory work” by the Contractor as per Contract Agreement. The security of the complainant is “withheld” presently in view of the various complaints received from the labourers to the effect that the Contractor/complainant has not deposited their EPF and lastly prayed for dismissal of the complaint.

9.             We have duly considered the rival contentions of the parties.

10.           Admittedly, complainant is a contractor and deposited an amount of Rs.5,00,000/- with OP as security amount.

11.           As per version of the complainant, he is contractor and has done the work for supply the Manpower and he deposited Rs.5,00,000/- with the OP as security amount, thus he became a consumer, as defined under Section 2 (7) of the Consumer Protection Act, 2019. On the other hand, OP has taken a plea that complainant is not consumer, as per the definition of Consumer Protection Act, 2019.

12.           Now the first question arises for consideration before us whether complainant falls under the definition of ‘consumer’ or not as defined in the Consumer Protection Act, 2019?

13.           The definition of consumer is defined in Section 2(7) of the Consumer Protection Act, 2019, reproduced as under:-

(7) “Consumer” means any person who-

(i) buys any goods for a consideration which has been paid or promise or partly paid and partly promises, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose.” or

(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-

(a) the expression “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self employment.”

(b) the expressions “buys any goods” and “hires or avails any services” include offline or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing;

 

14.           In the present complaint, complainant has neither hired nor availed of any service of the OP. Rather, the complainant is the service provider. As per the above definition the complainant does not fall under the definition of consumer. Hence the complaint is not maintainable and same deserves to be dismissed.

15.           In view of the above, the present complaint is hereby dismissed. No order as to costs. However, complainant is at liberty to file a civil suit/complaint before the competent court of law, if so desired. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Dated: 12.08.2022

 

                                                                President,

                                                      District Consumer Disputes

                                                      Redressal Commission, Karnal.

 

               (Vineet Kaushik)                        (Dr. Rekha Chaudhary) 

                   Member                                          Member