BETWEEN:

GOKULA GROUP OF INSTITUTION, PIRIDI,

REP. BY THE PRINCIPAL, THANUKU APPALA DHARMA SURYAKUMAR, HINDU, AGED 54 YEARS, S/O THAMMAYYACHARYA,

RESIDING AT PIRIDI, BOBBILI MANDAL,

VIZIANAGARAM DISTRICT.

                                              …COMPLAINANT                 

AND

1.ZENITH COMPUTERS LIMITED, MUMBAI,

REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR,

RAJKUMAR SARAF, ZENITH GRANDE 30-MIDC,

CNTRAL ROAD, ANDHERI EAST, MUMBAI-93.

2.RAJUKUMAR SARAF, FATHER’S NAME NOT KNOWN,

HINDU, AGED 50 YEARS, CHAIRMAN AND MANAGING DIRECTOR,

ZENITH COMPUTERS LTD., 30-MIDC, CENTRAL ROAD,

ANDHERI EAST, MUMBAI-93.

3.RAMESH PHAI SANGHVI, GENERAL MANAGER, BRANCH OPEPRATION,

ZENITH COMPUTERS LTD., MIDC CENTRAL ROAD, ANDHERI EAST,

MUMBAI-93.

4.DEVIKA BISEN, ASST.MANAGER(SALES) ZENITH COMPUTERS LTD.,

PLOT NO.33 AND 37 SANCOALE INDUSTRIAL ESTATE, P.O.,

ZUAR NAGAR, GOA-26.

                                             …OPP.PARTIES

      This complaint is coming on 14-11-2014 for final hearing before us in the presence of SRI K.MADHAN MOHAN, Advocate for the complainant and SRI K.B.PARAMESWARA RAO, Advocate for the Opposite Parties 1 to 3,  4^th Opposite Party is absent, and having stood over for consideration, the Forum made the following:-

O R D E R

AS PER SRI T.SRIRAMA MURTHY, PRESIDENT

This complaint is filed U/s 12 of Consumer Protection Act, 1986, seeking the reliefs to direct the Opposite Parties to pay Rs.13,50,000/- being the amount already received by the OPs from the complainant and also to pay Rs.5,00,000/- as compensation for causing mental agony and to pay Rs.10,000/- towards legal expenses on the following averments:-

The Mother Theresa Educational Society, Hyderabad was established with an object to impart Higher Education and Technical Education to students in Rural Areas and with that object, the Society has established a Group of Colleges called as Gokul Group Of Institutions at Piridi.

Similarly, they have established another Group of Colleges under the name and style of Brundavan Group of Institutions at Piridi. Subsequently, Brundavan Group of Institutions were merged with Gokul Group of Institutions. The first respondent is the Manufacturer and Seller of Computers with its Registered Office at Mumbai and Branches at various places including Goa and Hyderabad. The above said Group of Institutions through its Principal and Director contacted the OPs over phone for supply of 150 Zenith Desk Top Systems to utilize them in the Labs of the college. The OPs 2 and 3 agreed to supply the required number of computers and informed the said fact to the complainant. The 4^th OP has visited the colleges at Piridi to take purchase order. The Brundavan group of institutions placed a purchase order for 150 units of Zenith Desktop System at the unit price of Rs.14,600/- which includes all taxes transportation charges, delivery and installation of the same to the satisfaction of the HOD and paid an amount of Rs.10,00,000/- by way of a cheque and the balance amount of Rs.11,90,000/- was agreed to be paid later and a posted dated cheque for the said sum dated 10-9-2010 was given to the OPs who agreed to supply the units within 10 days from the date of purchase order with warranty of 3 years. The Gokul Group of Colleges also contacted 1^st, 2^nd and 3^rd OPs and after 4^th OP approached them, they too have placed a purchase order for 50 computers at the unit price of Rs.14,600/- inclusive of all taxes, transportation charges, delivery and installation of the same to the satisfaction of the HOD and issued a cheque for Rs.3,50,000/- as advance on 16-7-2010 and also given posted dated cheque dated 25-09-2010 for Rs.3,80,000/- with a condition that the delivery of goods shall be made within 10 days from the date of purchase order. The first respondent sent 100 units of desktop computers and installed them in the college on 12-08-2010 contrary to the terms and conditions of the purchase order. Then OPs have failed to supply the remaining 50 units to the Brundavan Group of Institutions and 50 units of computers to Gokul Group of Colleges as agreed. Since, the OPs did not supply 100 units of computers, both the institutions made alternative arrangements by spending huge amount. Both the institutions made several requests to the OPs to supply remaining 100 computers as agreed but of no avail. When the OPs tried to encash the post dated cheques without supplying 100 units of computers both the Institutions sent memos to the Bank with a request to stop payments. As There is deficiency in service on the part of Ops, for having not supplied 100 units of computers as agreed, the complainant suffered a lot. Hence the complaint.

The OPs 1 to 3 filed counters traversing the material allegations made in the complaint and have averred that both the institutions i.e., Brundavan Group of Institutions and Gokul Group of Colleges have placed orders with the OPs for supply of 150 Zenith Desk Top Systems to Brundavan Group of institutions at the unit cost of Rs.14,600/- and also to supply 50 units to Gokul Group of Colleges at the same rate. It is averred that Brundavan Group of Institutions have given a cheque for Rs.11,90,000/- towards security. It is averred that Gokul group of colleges have also given a sum of Rs.3,50,000/- by way of a cheque and also issued another cheque for the balance amount towards security. It is averred that the respondents have delivered 100 Desktop systems to the above colleges and though the complainant agreed to pay the cost of units supplied @ Rs.14,600/- per unit, they did not stick to their promise. It is averred that though the OPs have supplied the balance 50 units to the Brundavan Group of Institutions and 50 units to Gokul Group of Colleges but both the institutions did not take delivery of the same. Since the above said institutions failed to pay the cost of units supplied, the OPs were forced to present the post dated cheques for encashment. As the said cheques were not  which were not honoured by the Bank, a Criminal Case was filed against the Institutions. It was observed in the judgment of the said case that the colleges were due a sum of Rs.1,10,000/- towards 100 units supplied.  It is averred that though the complainant himself is aware that a sum of Rs.1,10,000/- is due and payable to the respondents towards the 100 units of computers which were supplied and installed in their institutions, since they have filed the present complaint with false and frivolous allegations and as there is no deficiency in service on the part of the OPs, the complaint is liable to be dismissed.

In furtherance of complainants’ case, the affidavit evidence of PW1 and Pw2 were filed and they got marked Exhibits A1 to A8 on their behalf. Per contra, the OP too filed affidavit evidence of RW1 and got marked Exhibits B1 to B9.

Perused the material placed on record and heard the counsel for the respective parties.

Now the point for consideration is, whether there is any deficiency in service on the part of OPs in not supplying the units to the institutions as agreed and whether the complainant is entitled to the reliefs prayed for?

Basing on the material available on record, the learned counsel for the complainant has contended that though the respondents 1 to 3 are residing in Bombay and Respondent No.4 is residing at Goa the cause of action for filing the complaint arose at Bobbili as the men of the OPs installed the computers in the Educational Institutions run by the Complainant and as such, the OPs are precluded from contending that this Forum has no jurisdiction to entertain the complaint. As against the above said contention, the learned advocate for OPs has contended that no part of transaction did take place within the jurisdiction of this Forum and as the respondents are residing not within the jurisdiction of this Forum, the complaint is bad in law and as such the same is liable to be dismissed.

To substantiate the claim of the complainant, the complainant cited a decision in 1 (2008) CPJ 404 between the M/s Associated Road carriers Limited vs. Kamlender Kashyap and others where it is held in para No.11

“in so far as the plea of territorial jurisdiction is concerned, the machinery was to be installed admittedly at Bilaspur. Condition No.4 of the order confirmation dated 31^st December, 1997 stipulated that the erection of the machine would be done by the seller/dealer as the site to be provided by the complainant, which was admittedly at Bilaspur. Undisputedly, Mr.B.Subrahmanium, Authorized Engineer of the OP No.1 visited for the purpose of installation of the machine. Since the cause of action arose at Bilaspur, the Himachal Pradesh State Consumer Disputes Redressal Commission had jurisdiction to entertain this complaint. The carriers were to deliver goods at Bilaspur and did deliver at Bilaspur, consequently plea of lack of territorial jurisdiction have lost all its value and could not be entertained”.

As seen from the principles laid down in the decision cited supra, if cause of action arises within the jurisdiction of a Consumer Forum, the said Forum gets territorial jurisdiction to entertain a complaint. If any of the parties violates the terms and conditions of the agreement as per Section 11 (2) (c) of the C.P.Act, the District Consumer Forum shall have jurisdiction to entertain the complaint if the cause of action wholly or in part arises within the jurisdiction of such Forum.

Coming to case on hand, the men of OPs came to the educational institutions of the complainant and installed the Zenith Desktop computers as agreed. Hence, it can be held that a part of cause of action arose within the jurisdiction of this Forum.

The learned counsel for the OP has contended that there is no consumer and service provider relationship in between the parties and as the complainant purchased the computers from the OPs for the benefit of students pursuing their studies in their institutions and as the transaction in between the parties is a commercial transaction, the complaint is liable to be dismissed.

As against the above said contention, the learned counsel for the complainant has contended that the complainant is an educational institution and for imparting computer knowledge to the students studying in their institutions, an order was placed for purchase of 150 Zenith computers and as the computers are meant for the use of students and as there is no element of commercial or profit making activity on the part of the complainant, the relationship in between the parties is that of a consumer and service provider and as there is deficiency in service on the part of the OPs, the complaint is rightly filed.

The learned counsel for the complainant has cited a Decision reported in I (2012) CPJ 166 (NC)  between PUNJAB AGRICULTURAL UNIVERSITY, LUDHIANA  VS. UTI OF INDIA. It is held that “   it cannot be any one’s case that the complainant had invested the funds from the funds available with them under CPF, GPF and pension fund contributed by the employees of the complainant university, for earning profit. The University would not under any circumstance become the beneficiary of such a return on investment. It is the group of employees, who had contributed towards CPF, GPF and Pension Fund who would benefit ensuring their “livelihood-security’, after they retire from the service. It was for the betterment of their employees, that such an investment was made, and it is to be made clear that no benefit by way of profit was to accrue to the complainant, improving its balance-sheet, in view of which and in the light of definition of the word ‘commerce’ given above, under no circumstances, the petitioner could be said to be indulging in any ‘commercial’ activity, thus excluding him from the definition of ‘consumer’ as enshrined in Consumer Protection Act, 1986.”

As seen from the principles laid down in the decisions cited supra, the nature of investment would determine whether the activities are commercial or not and when the University incurs some amount for meeting the lively hood security of their employees  who would be lived with better financial security after retirement and hence such investment will not under any circumstances fall under the word commercial.

The learned counsel for the OP has contended that that facts of the case sited supra are quite different from the facts of the present case and as the complainant has purchased the computers for the benefit of its students for expanding its business and as there is no positive assertion made in the complaint that the computers are purchased for  eaking out livelihood by means of self employment,  it can not be held that there is consumer and service provider relationship in between the parties.

In a decision reported in 1(2014) CPJ 332 between Lords ware Private limited vs. Rance Computers Pvt., Ltd., it was held that  “perusal of he record clearly reveals that the complainant is Lords wear Pvt. Ld., meaning thereby that software has been purchased by a pvt. Ltd., company and not by any individual learned counsel for the petitioner submitted that Managing Director is the owner of petitioner company and he was carrying on business for earning his livelihood in the name of Lords Wear Pvt. Ltd., hence the complainant falls within the purview of consumer under the consumer Protection Act. This argument is devoid of force because nowhere in the complainant it has been pleaded that Managing Director Kishore is running business in the name of complainant for earning his livelihood and under such circumstances, it cannot be inferred that Managing Director Kishore was running business for earning his livelihood. As software was purchased by a limited company for commercial purposes, learned State Commission rightly held that complainant does not fall within the purview of consumer in the light of judgement of Hon’ble Apex court reported in IX(2010) SLT 396-I, (2011) CPH 1 SCC, 525, Birla Technologies Ltd., v. Natural Glass and Allied Industries Ltd.,

As seen from the principles laid down in the decisions cited supra when there is no positive assertion made in the complaint to the fact that the head of institutions purchased the computers for earning his livelihood by means of self employment and as the complainant has purchased the computers in the bulk it cannot be said that the complainant is a consumer.

I (2014) CPH 79 Ghaziabag Authority Vs. Purwa Dureja Ashok Gogia, Sanjeev Narayan Saxena, Deepak Dhar Ramji Kohli & Bharatji Kohili Raj, Bala Motta, Sudersan Kapoor, Shakumbari Devi, wherein it was held that “in order to take benefit of the exception carved out is the explanation to Section 2(1) (d) of the Act, the complainants were required to plead the facts, bringing them with the exception and prove the same. On perusal of the complainants, we find that there is no such plea taken by any of the respondents. Therefore, the respondents can not avail of the benefit of the explanation to Sec 2(1) (d) of the Act. Therefore, in our view, the respondents/complainants do not fall within the purview of definition of ‘consumer’ as provided under Section 2(1) (d) of the Act”.

Since the complainant did not plead that they have purchased the computers to eak out their livelihood by means of self employment, it can not avail the benefit of the explanation to Section 2 (1) (d) of the Act.

The learned counsel for the OPs has contended that even if it is believed that there is consumer and service provider relationship in between the parties, the complainant is not entitled to get Rs.13,50,000/- towards computers and Rs.5,00,000/- towards mental agony as the complainant himself sent a message to the Bank not to honour the cheques presented by the OPs and as the complainant did not pay the total amount payable for the 100 computers supplied to them as agreed, the complaint is liable to be dismissed.

It is an admitted fact that Brundavan Group of institutions through its Director placed a purchase order for 150 Zenith Desktop systems at the unit price of Rs.14,600/- and an advance of Rs.10,00,000/- was paid to the OPs by way of cheque and balance amount of Rs.11,90,000/- was paid through a post dated cheque dated 10-09-2010. It is also an admitted fact that Gokul Group of Colleges also placed a purchase order for 50 computers at the unit price of Rs.14,600/-  and a cheque for Rs.3,50,000/- was given as advance and also given post dated cheque bearing no.535963 dated 25-09-2010 for Rs.3,80,000/- towards the balance amount. It is also an admitted fact that Brundvan Group of institutions  were merged with Gokul Group of Institutions and as such the complaint is filed by Gokul Group of Institutions. In the counter filed by the 1^st respondent, it is specifically averred that the respondents delivered two computers to the above colleges and the later received and acknowledged the same and the though the complainant was supposed to pay an amount of Rs.14,60,000/- towards the price of the delivered units they did not pay Rs.1,10,000/- till date. It is their further contention that to avoid unnecessary complications they have also supplied 50 systems to the above said colleges but the said colleges did not take delivery of the same for the reasons best known to them. The learned counsel for the OP has contended that the cheque given by the complainant  for Rs.10,00,000/- and another cheque given for Rs.3,50,000/- were honoured whereas the post dated cheques for Rs.11,90,000/- and Rs.3,80,000/- were bounced with an endorsement “stop payment”.

In para 6 of the complaint, it is averred that the first respondent company sent 100 computers and installed them in the college on 12-8-2010 and failed to supply the remaining 50 units to Brundavan Group of Institutions and also failed to supply 50 units to Gokul Group of Colleges. To prove that the OPs have sent 50 computers to Gokul Group of Colleges and they have filed copy of invoice raised by them and got the same marked as Exhibit B5. As seen from the contents of Exhibit B5 on 9-8-2010 50 units of computers were sent to Gokul College of Pharmacy, Piridi village of Bobbili Mandal. As per OPs, the complainant did not receive the said computers and as such, they were returned back to them. To prove that the post dated cheques dated 10-09-2010 for Rs.11,90,000/- and Rs.3,80,000/- dated 25-09-2010 were bounced, the OPs filed certified copy of the judgment in C.C.331/2011 on the file of the Court of I Special Magistrate, Hyderabad and as seen from its contents, the above two cheques given by the complainant were bounced. Hence, it is clear that in all, the complainant paid a sum of Rs.13,50,000/- instead of paying Rs.14,60,000/- for 100 units received from the OPs. Though the OPs sent balance of 50 Computers, the complainant did not receive the same. Since, the post dated cheques  for Rs.11,90,000/- as well as Rs.3,80,000/- were bounced, the complainant cannot contend that the OPs are due a sum of Rs.13,50,000/- to them. On the other hand, it is clear that the complainant became due a sum of Rs.1,10,000/- towards the balance sale consideration of 100 units received from the OPs.

Hence, in the above said facts and circumstances, we are of the considered opinion that there is no deficiency in service on the part of OPs and as the OPs did not commit any unfair trade practice, the complaint merits, no consideration and is liable to be dismissed.

In the result, the complaint is dismissed without costs.

Dictated to the Steno, transcribed by him, corrected by me and pronounced by us in the open Forum, this the 8^th day of December, 2014.

MEMBER                                  PRESIDENT

C.C.No.63/2012

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For complainant:-                   For opposite party:-

PW 1                               RW1

DOCUMENTS MARKED

For Complainant:-

For Opposite Parties:-       -nil-

 MEMBER                                         PRESIDENT