Tamil Nadu

South Chennai

CC/179/2013

M/s. NetLinx System & Services, - Complainant(s)

Versus

The Manager, M/s. Sulekha .Com, - Opp.Party(s)

G.Karthikeyan

28 Feb 2017

ORDER

                                      Date of Filing :   29.05.2013
                                 Date of Order :   28.02.2017
DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)
     2nd Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3

PRESENT: THIRU. S. PANDIAN, B.Sc., L.L.M.                       : PRESIDENT             
                 TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I
               DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

C.C.NO.179/2013
TUESDAY THIS  28TH   DAY OF FEBRURAY 2017

M/s. Net Linx Systems & Services, 
Rep. by its Manager (Administration), 
Mr.G.Naresh, S/o. G.Prathap, 
No.118, 2nd Floor, Triplicane High Road, 
Triplicane, Chennai 600 005.                                    ..Complainant

                                   ..Vs..
1.   The Manager, 
M/s. Sulekha.Com, 
Bloc 345, 9th Floor, 
Fountain Plaza, 
Pantheon Road, Egmore, 
Chennai 600 008. 

2. Mr.Vimal, 
Branch Customer Support Head, 
Messrs. Sulekha.Com, 
Block  345, 9th Floor, Fountain Plaza, 
Pantheon Road, 
Egmore, Chennai 600 008.                                       ..Opposite parties. 

For the Complainant               :    M/s. G.Karthikeyan      
For the opposite parties               :    Exparte. 

ORDER
THIRU.   T.PAUL RAJASEKARAN ::    MEMBER-II       
This complaint is filed by the complainant against the opposite parties to pay a sum of Rs.3,75,000/- as compensation for loss of business and also to pay Rs.5,00,000/- for mental agony and Rs.38,605/- as cost of the complaint to the complainant. 
1. The averment of the complaint is brief as follows: 
      The complainant submit that he entered into a partnership agreement on 1.8.2002 for business of sales and service of branded and assembled  personal computers, chip level servicing of printers in the name of Net links system and services by putting a capital of Rs.30,000/- (each of the partners contributing Rs.15,000/-).   This partnership deed was executed on 11.9.2002 by putting a note. “ the firm may also carry any other type of business if all partners decided to do so”.    
2.    The partnership deed was reconstituted on 29.10.2012 by adding two more partners and putting a clause of “partner 1 & 2 no longer continue to works as working partners with effect from 15.11.2012.”    Here after the 3rd and 4th partners took the entire affairs of the within mentioned firm.   
3.    It is also stated the complainant of the said complaint had paid Rs.38,605/- (Rs.35,000 + tax @ 10.3 %) to Sulakha.com vide their order NO.817155 dt.21.12.2012 and by providing the complementary gift of home theater, the package name “PM plus” duration “Zone tenure” for the period of 29.3.2012 to 28.3.2013.    
4.    As per the terms of contract of the opposite party” a free look period is mentioned stating you have the right to review the terms and conditions and cancel your campaign on Sulakha Yellow page within 7 working days from the date of your campaign going live, if you chose to cancel your campaign, you shall be entitled to refund of the value on the date of cancellation, after deducting the proportionate cost  of leads delivered, if any till the date of cancellation”. This process will take up to 90 days from the date of cancellation.    The several demands made by the complainant the opposite parties have not come forward to comply the demands.    Accordingly the complainant issued a legal notice on 25.2.2013 to the opposite party  by claiming refund of Rs.38,605/- the amount paid by him and Rs.39000/- for loss of reputation and mental agony It is contended that the act of the opposite parties amounts to deficiency in service which caused mental agony and hardship to the complainant.   Hence the complaint. 
5.    Inspite of receipt of notice the opposite parties did not appear before this forum and therefore they were set exparte on 12.12.2014
6.    Though the opposite parties were remained exparte this  Forum gave lot of opportunities to the opposite parties to appear before this forum, where they did not appear, hence it is decided to dispose this compliant fully on merits with available materials by this forum.  
7.    In such circumstances,  in order to prove the allegation made in the complaint the proof affidavit is filed by the complainant as his evidence, and also Ex.A1 to Ex.A15  are marked.  
8.    At this juncture the point for consideration before this Forum is: 
1.    Whether there is any deficiency of service on the part of the opposite  parties as alleged in the complaint?. 

2.    To what other reliefs, the complainant is entitled for? 

9.    POINT No. :1     
     The complainant entered into a partnership agreement on 1.8.2002 for business of sales and service of branded and assembled  personal computers, chip level servicing of printers in the name of Net links system and services by putting a capital of Rs.30,000/- (each of the partners contributing Rs.15,000/- each) Ex.A1 & Ex.A2.   This partnership deed was executed on 11.9.2002 by putting a note “the firm may also carry any other type of business if all partners decided to do so”.    
10.    The partnership deed was reconstituted on 29.10.2012 by adding two more partners (Ex.A1 page-6) and putting a clause of  “partner 1 & 2 no longer continue to works as working partners with effect from 15.11.2012.    Here after the 3rd and 4th partners took the entire affairs of the within mentioned firm”.   (Page -7 & 8 of Ex.A1.  )    
11.    It is stated the complainant / partner No.1 of the said complaint had paid Rs.38,605/- “(Rs.35,000 + tax @ 10.3 %) to Sulakha.com vide their order No.817255 dated 29.1.2012 Ex.A3 of page-11 and by providing the complementary gift of home theater.  The package name “PM plus” duration “Zone tenure” for the period of 29.3.2012 to 28.3.2013.    
12.    As per the terms of contract of the opposite party, a free look period is mentioned in the terms of contract stating “you have right to review the terms and conditions and cancel your campaign on Sulakha Yellow page within 7 working days from the date of your campaign going live, if you chose to cancel you campaign you shall be entitled to refund of the value on the data cancellation after deducting the proportionate cost of leads delivered, if any till the date of cancellation. This process will take up to 90 days from the date of cancellation”.  
13.    It is reported by the complainant that he had received an email from the opposite party stating that he had not received any response from the opposite party about the deals made in the business transaction which has not been adhered by the opposite party.    In response to the complainant’s complaint made to the opposite party, the opposite party had replied through their mail dated 14.11.2012 under Ex.A4 and lot of correspondence there is change every day between 14.2.1990.  The opposite party had informed the complainant that his account has been expired due to temporary reason and further it was revoked and it was informed that “tenure based contact” was changed into “lead based contract”.  Without informing the complainant the contract content was changed which is a violation of the contract as agreed upon.  The exchange of mails to the opposite party is submitted to this forum under Ex.A5 to Ex.A10.   Since no proper reply has been given by the opposite party to the satisfaction of the complainant, he had issued a legal notice on 25th Feb 2013 under Ex.A11 expressing his unhappiness and his breach of contract and criminal breach of trust and cheating which punishable under IPC and he sought the refund of Rs.38605/- where had paid for getting the lead as per the agreement which was not fruitfully done by the opposite party and demanding a compensation of Rs.3,75,000/- for his loss of business and mental agony. The legal notice was duly acknowledged by the opposite parties 1 & 2 on 20.2.2013 and 1.3.2013 respectively.   Then on 1st March 2013 the opposite party had informed to the complainant that the total commitment of 3000 leads and already they have delivered 570 leads and will provide 2430 leads vide Ex.A14.    
14.    The complainant had submitted a letter authorizing G.Naresh Manager, Administration to be a representative of net link and system and services to appear and execute necessary documents called by this forum on behalf of the firm  (Ex.A15).   
15.    On perusal of the proof affidavit, documents and written arguments   submitted by the complainant and  the complainant counsel had submitted citation is  as follows: 
(1995)3 Supreme Court Cases 583
LAXMI ENGINEERINGS WORKS
..Vs..
P.S.G. INDUSTRIAL INSTITUTE.
It has been held that the 
Consumer Protection Act  1986  2  (d) (i) (m)  - “Consumer” –“Commercial purpose ‘ – Meaning – Expln. (as added by Amendment Act 50 of 1993) – Nature and effect of insertion of – Person buying goods and using the same himself solely for the purpose of earning his livelihood by means of self-employment would be covered by the definition of “consumer” by virtue of the Expln. 
    Further the complainant counsel quoted under para-11 c of the stated Judgment it is stated 
The explanation however clarifies that in certain situations, purchase of goods for “commercial purpose” would not yet take the purchaser out of the definition of expression consumer”, If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of self-employment, such purchaser of goods is yet a consumer”

16.        It is observed whatever the judgment cited by the complainant that was taken care of but the complainant had not substantiated that he had purchased / utilized himself for the purpose of earning his livelihood such as purchaser of goods.    It is a partnership transaction and it is proved that is an employee of a concern organization under Ex.A15 and as a partner he has been relieved no longer continue as a working partner from 15.11.2012 as per rest matured  partnership deed executed on 15.11.2012.  The transaction of the firm is sole carry on the business of sales and service of branded and assembled personal computer and laptop networking AMCs consumable sales. The firm may also carry any other type of business if all the partners.  It is crystal clear that the terms and agreement executed on 1st August 2002  on 29th  October 2012 confirms it is a commercial activity and the amount paid to the opposite party was on 29.3.2012 where at that time Mr.Naresh is no more in the picture to claim the said amount.    Since the complainant had not established he is a  “consumer” u/s 2 (1) (d) of the C. P. act 1986  and though the opposite parties failed in executing their assured leads and finally promised to provide 2400 leads under Ex.A14 the complainant should have followed and got the leads from the opposite parties.    
17.    We are of the considered view that the entire transaction in this complaint are purely “commercial purpose” and the insertion of  stating it is for livelihood could not be accepted by this forum.   Hence the complaint is dismissed.  No cost. Thus the points 1 & 2 are answered accordingly.  

    In the result the complaint is dismissed.  No cost. 
    Dictated by the Member-I to the Assistant, taken down, transcribed and computerized by her, corrected by the Member-Ii and pronounced by us in the open Forum on this the  28th  day  of  February  2017.

MEMBER-I                        MEMBER-II                             PRESIDENT.

Complainant’s side documents: 
Ex.A1-   -        - Copy of partnership deed. 
Ex.A2-  21.3.2013    - Copy of Registration of a firm certificate. 
Ex.A3-  29.3.2012    - Copy of yellow pages order form. 
Ex.A4-  14.11.2012 – Copy of email communications. 
Ex.A5- 16.11.2012     - Copy of email communications. 
Ex.A6- 17.11.2012     - Copy of email communications. 
Ex.A7- 19.11.2012     - Copy of email communications. 
Ex.A8- 21.11.2012     - Copy of email communications. 
Ex.A9- 22.11.2012  - Copy of email communications. 
Ex.A10- 24.11.2012 – Copy of email communications. 
Ex.A11- 25.2.2013      - Copy of statutory legal notices. 
Ex.A12- 28.2.2013      - Copy of Ack. of 1st opposite party. 
Ex.A13- 1.3.2013      - Copy of Ack. of 2nd opposite party. 
Ex.A14- 1.3.2013      - Copy of email 1st opposite party acceptance 
Ex.A15-     -      - Authorization Letter. 

Opposite parties’ side documents:   .. Nil. 

MEMBER-I                        MEMBER-II                             PRESIDENT.