Delhi

West Delhi

CC/22/61

DEALCLIQ TECHNOLOGY PVT LTD. - Complainant(s)

Versus

VIKAS MEDICAL - Opp.Party(s)

28 Feb 2022

ORDER

BEFORE THE CONSUME DISPUTE REDRESSAL FORUM,

WEST DISTRICT, JANAKPURI,

NEW DELHI

 

CC No.  61 /2022

 

In the matter of :-

 

DEALCLIQ TECHNOLOGY PVT LTD

THROUGH

GAURAVJEET SINGH (DIRECTOR)

c/o shop No.2, Plot No. 35,

North West, Avenue Road

Punjabi Bagh Extn.

New Delhi-110026                                                         ………..Complainant

 

 VERSUS                              

MR VIKAS MUNJAL (OWNER)

GOPAL PHARMA

C/O Municipal Market

Tibbi Sahib Road

Adarsh Nagar, Sri Muktsar Sahib

Punjab-152026

 

Opposite Parties

Coram:                                                                             

1. SONICA MEHROTRA (PRESIDENT)
2. RICHA JINDAL (MEMBER)
3. ANIL KOUSHAL (MEMBER)

Date of Institution: 01.02.2022

Judgment reserved on:22.02.2022

Date of Decision:28.02.2022

ORDER

 

File taken up through video conferencing

 

The complainant has filed has filed present complaint under Consumer Protection Act,2019 against op on the ground stated herein under :

 

1. The complainant Sh.Gauravjeet Singh is Director of the Complainant Company” and is a law-abiding citizen.  That the complainant Company-“DEALCLIQ TECHNOLOGY PVT LTD.(WWW.DEALCLIQ.Com) is a renowned supplier for all the latest state-of-the art products or day- to- day use with its Registered Office located at  SHOP NO.2, PLOT NO.35, NORTH WEST, AVENUE ROAD, PUNJABI BAGH EXTN, WEST DELHI, NEW DELHI-110026.

 

2. The opposite party i.e. “Vikas Medical” approached the “Complainant Company” for supplying 100 units (Rs.440 each with GST of 12% amounting to Rs.49,280/-) of pulse OxImeters to the Opposite party owner i.e. Mr.Vikas Munjal in May 2021 vide the Whatsapp Voice message dated 16^th May 2021.  That the “complainant Company“supplied 100 units to the opposite party on 17^th May 2021”, the Complainant Company “ received advance payment of Rs. 25,000/- online vide Google Pay  Number 9872610596 dated 15/05/2021. That the opposite party asked for delivery on Monday 17^th May 2021 but the “complainant Company” told their inability to deliver on 17^th May and further told them that it will get delivered to them on Wednesday 19^th May 2021.

 

3. On 17^th May2021 the “opposite party” sent whatsapp message to the “complainant Company” “ BROTHER DISPATCH HO GAYA “ at 12.52 pm to which the “Complainant Company” replied “HAANJI HO GAYA” at 1.01 pm.  The opposite party received and acknowledged the delivery finally on 19^th May 2021 as promised by the “ Complainant Company.  That the opposite party agreed to pay the balance amount of Rs. 24,280/- (Rupees Twenty Four Thousand two hundred eighty only) after receiving the delivery which they never paid till date as they had no intention to do so.

 

4. The director of the complainant co.reminded to the opposite party several times through whatsapp message and phone calls but they deliberately choose not to pay the balance amount to the complainant co. 

 

5. The behavior of the owner of the opposite party clearly shows that the product/units supplied by the complainant co. were delivered to them on time as promised by the complainant co.  This act of their shows their ill intention to illegally use of working units sent by the complainant co.for their own profits and not make the payment of balance amount, no matter whether it caused losses to the complainant co. 

 

6. That thereafter, a Legal Notice dt. 30/08/2021 was sent on behalf of the director of the complainant co.by his counsel stating all the communications sent regarding the payment and despite that payment was not made and refused that too without any valid and logical reason. The director of the complainant co.raised the invoice dt.17/5/21 with No.0000078 in the name of the opposite party i.e Vikas munjal and made him aware of that. The opposite party were given 10 days to reply to the legal notice but dill date no reply came.

 

7. The complainant co has suffered financial physical and mental harassment due to the non-payment of the balance amount for working units supplied to the owner of the opposite party

 

8. The owner of the opposite party by this act of theirs and that too without any valid reason had deliberately committed deficiency of service in term of section -2(11) of the consumer protection act 2019 as well as indulged in an unfair trade practice in terms of section-2(47)of the consumer protection act 2019.

 

9. In addition to the above- mentioned violation of the provision of the Consumer Protection Act has committed fraud and cheating with the complainant by neither giving any valid reason nor made any payment of the balance amount.Compensation claimed by the complainant is Rs. 24,280/- so this forum has jurisdiction to determine and adjudicate upon this  consumer dispute.

 

10. The Complainant prayed for direction tothe OP for unpaid outstanding amount of Rs. 24280/-  to which they have miserable failed which has put the complainant in great deal of inconvenience monetary expense and mental agony in addition to the claim of compensation should be allowed and also the interest as stated here before.

 

11. The opposite party had wrongfully gained from the complainant, who had suffered the financial losses amounting Rs.24280/-Therefore, for the inactiveness of the OP and its officials, the complainant had no option left but to file the present complaint alleging deficiency in service on the part of OP.

 

12. After going through the material placed on record, it reveals that the main question involved in the present complaint is that whether the Complainant was covered under the definition of consumer as per Consumer Protection Act,2019

 

13. Clearly, the only aspect for consideration before us is whether the Complainant was excluded from the purview of the definition of “consumer” under Section 2(7) of the Consumer Protection Act, 2019 on account of the subject transaction amounting to sale or for being for a commercial purpose.

 

14. It would be pertinent to begin our discussion by referring to the definition of the term “consumer” under Section 2(7) of the Consumer Protection Act, 2019:

 

“2(7) “consumer” means any person who—

 

1. partly paid and partly promised, 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

 

2. hires or avails of any service 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 service 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 service for any commercial purpose.

 

Explanation.—For the purposes of this clause—

 

1. the expression "commercial purpose" does not include use by a person ofgoods bought and used 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" includes offline or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing;

 

15. We are guided by the judgement of Hon’ble NCDRC on similar issue in the case of“Fruit and Vegetable Project, New Delhi v. N. Sankar Reddy, III (1994) CPJ 163 (NC)” that a seller could not take the benefit of the 1986 Act, held that the farmer was not a “consumer” since he was selling his produce to the opposite party. It was also held that in any case, the issue of specific performance emanating from a contract between the parties could not be the subject matter of a consumer dispute. The Appellant in the instant case has referred to this reasoning adopted by the National Commission to substantiate its case.

 

16. In view of the law so laid down by the Hon'ble National Commission, the complainant cannot be held to be a "consumer" and the complaint filed by her does not fall within the purview of the Consumer Protection Act, 2019. The same could not have been entertained by the District Commission and is liable to be dismissed for want of jurisdiction. Even otherwise, it is a commercial transaction between the companies.

 

17. Hon’ble NCDRC in Sakthi Sugar Ltd. v/s Sridhar Sahoo 1999 (2) CPJ 4 held in a similar case that complainant was in a position of seller, the dispute with OP (buyer) could not be termed as Consumer Dispute as it involves issue of specific performance of a contract.

 

18. Accordingly, the complaint filed by the complainant is dismissed without prejudice to the rights of the complainant to seek him appropriate remedy before the proper authority under the law of land.

 

19. The time spent by him before the District Commission while prosecuting the complaint shall be excluded by that authority while computing the period of limitation for filing the case before appropriate authority, etc.

 

20. The arguments in the case were heard on 22.2.2022 and the order was reserved. Now, the order be communicated to the parties.

A copy of order be sent to the complainant free of cost by post. Order be sent to www.confonet.nic.in.

File be consigned to record room.

 

(Richa Jindal)         Member	(Anil Kumar Koushal)               Member	(Sonica Mehrotra)                 President