State Consumer Disputes Redressal Commission
Unika Infocom vs Exterior Interior Ltd. on 15 July, 2015
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Miscellaneous Application No. MA/535/2015 In Complaint Case No. CC/48/2015 1. Unika Infocom 151, Dum Dum, P.S. - Dum Dum, Kolkata -700 074. ...........Appellant(s) Versus 1. Exterior Interior Ltd. Abhishek Point Building, 152, S.P. Mukherjee Road, 5th Floor, Kolkata -700 026. ...........Respondent(s) BEFORE: HON'BLE MR. DEBASIS BHATTACHARYA PRESIDING MEMBER HON'BLE MR. JAGANNATH BAG MEMBER For the Appellant: Mr. Arhat Biswas , Advocate For the Respondent: ORDER
Order No. 6 Date: 15-07-2015 Sri Debasis Bhattacharya Today is fixed for passing order in respect of the MA of the OP challenging maintainability of the instant complaint case.
By such petition, it is stated by the OP that the Complainant is a company, within the meaning of Companies Act, 1956 carrying on business of conducting online shopping, courses for skill development, project management consultancy, etc. They are not a "Consumer" within the meaning of Sec. 2(d) of the Consumer Protection Act, 1986 and has availed of services from the OP for commercial purpose and/or for the benefit of business for profit.
Ld. Advocate for the OP/petitioner has submitted that undisputedly the Complainant has hired its services for commercial purpose. He contended that in case of purchase of goods by a person for use in some small venture, such as for self-employment, etc., which he might embark upon in order to make a living, as distinct from a large-scale manufacturing, processing or trading activity carried on for profit, he may be construed as a 'consumer' as defined u/s 2(1)(d) of the Consumer Protection Act, 1986. However, in case of a company who hires/avails of services of others for using it in a large-scale profit making activity would not be "consumer" and is not entitled to protection under the Act. The Complainant has admitted that they are a public limited company. Therefore, it cannot be said that they hired the services of the OP for the purpose of earning livelihood by means of self-employment. The instant dispute being civil in nature, they have chosen a wrong forum and as such, the instant complaint case be dismissed being not maintainable.
Ld. Advocate for the Complainant, on the other hand, has submitted that it hired/availed of service against consideration and is a bona fide consumer under the 1986 Act and there was deficiency of service. There is no infirmity with the present case and it is very much maintainable in its present form. In support of his contention, the Ld. Advocate has referred to a decision of the Hon'ble Supreme Court reported in (2009) 3 SCC 240 and another decision of Hon'ble National Commission reported in (2004) 1 CPR (NC) 7.
The solitary question for consideration before us is whether the complaint filed by the Complainant is maintainable under the Consumer Protection Act or not. To put it bluntly and precisely, the answer to this question is negative because it is the settled position of law that a Limited Company cannot seek any relief under the Consumer Protection Act.
The Hon'ble National Consumer Commission in the matter of M/S MCS Computer Services (P) Ltd. V. M/S Allena Auto Industries Pvt. Ltd., reported in 2012(2) CPR 68 (N.C.) has held that complaint filed by a Private Limited Company is not maintainable under the Consumer Protection Act, 1986 because the role of a Limited Company cannot be for earning livelihood and it ventures into the commercial activities for its shareholders. Relevant portion of the order rendered in M/S MCS Computer Services (P) Ltd. V. M/S Allena Auto Industries Pvt. Ltd. (Supra) is appended below :-
"Respondent is a private limited company and the commercial activities carried out by it cannot be for its earning livelihood by means of self-employment. Company has to act through somebody and the question of livelihood and self-employment under these circumstances would not arise. Company has judicious identity and it can be sued through a person. Company does the commercial activities for its shareholders. Question of earning livelihood by means of self-employment would not arise."
In Advik Industries Ltd v. Uppal Housing Ltd. & Anr, reported in IV (2012) CPJ 159 (NC), the Hon'ble National Commission held that Limited Company not a "consumer" by relying upon the following judgments:-
"This Commission in Monstera Estate Pvt. Ltd. Vs. Ardee Infrastructure Pvt. Ltd. - IV (2010) CPJ 299 (NC) has held that:-
"Housing - Purchase of space for commercial purpose - There was delay in possession. Complainant was a private limited company. Complainant was nominated for allotment of showroom. Possession not given. Sale deed was not executed. Deficiency in service was alleged. Even if private limited company was treated as 'person' purchase of space could not be for earning its livelihood. Purchase of space was for commercial purpose.
....
It was further held in Laxmi Engineering Works Vs. PSG Industrial Institute, (1995) 3 SCC 583, by the Hon'ble Apex Court as under :
"The National Commission appears to have been taking a consistent view that where a person purchases goods "with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit", he will not be a 'consumer', within the meaning of Section 2 (d) (i) of the Act. Broadly affirming the said view and more particularly, with a view to obviate any confusion - the expression "large scale" is not a very precise expression - Parliament stepped in and added the explanation to Section 2(d)(i) by Ordinance/ Amendment Act, 1993. The explanation excludes certain purposes from the purview of the expression "commercial purpose" - a case of exception to an exception. Let us elaborate : a person who buys a typewriter or a car and uses them for his personal use is certainly a 'consumer' but a person who buys a typewriter or a car for typing others' work, for consideration or for plying the car as a 'taxi', can be said to be using the typewriter/car for a commercial purpose. 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 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'. In the illustration given above, if the purchaser himself works on typewriter or plies the car as a taxi himself, he does not cease to be a consumer. In other words, if the buyer of goods uses them himself, i.e. by self-employment, for earning his livelihood, it would not be treated as a "commercial purpose" and he does not cease to be a consumer for the purposes of the Act. The explanation reduces the question, what is a "commercial purpose", to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz, "uses them by himself", "exclusively for the purpose of earning his livelihood" and "by means of self-employment" make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself, by employing himself for earning his livelihood. A few more illustrations would serve to emphasise what we say. A person who purchases an auto-rickshaw to ply it himself on hire for earning his livelihood would be a consumer. Similarly, a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer. A person who purchases a lathe machine or other machine to operate it himself for earning his livelihood would be a consumer. (In the above illustrations, if such buyer takes the assistance of one or two persons to assist/help him in operating the vehicle or machinery, he does not cease to be a consumer). As against this, a person who purchases an auto-rickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by another person, would not be a consumer".
Also, see Rajasthan State Industrial Development & Investment Corporation Vs. Diksha Enterprises, III (2010) CPJ 333 (NC) and this Commission's judgment in RP 1129 OF 2012, Shri Harnam Singh Vs. Shalimar Estate Pvt. Ltd. & Ors., decided on 29th May, 2012".
The Hon'ble Supreme Court in Birla Technologies Ltd versus Neutral Glass and Allied Industries Ltd, reported in 2011(1) CPR 1 (SC) has held that if the services are availed for commercial purpose then the dispute between the parties cannot be a "consumer dispute".
The plea taken on behalf of the Complainant is not acceptable in view of the judgments rendered by the Hon'ble Supreme Court in respect of the case of Cheema Engineering Services vs. Rajan Singh, reported in 1997(1) SCC 131, wherein it has been held that:
"Self-employment connotes altogether a different concept, namely, he alone uses the machinery purchased for the purpose of manufacture by employing himself in working out or producing the goods for earning his livelihood. 'He' includes the members of his family.."
Admittedly, the Complainant hired the services of the OP for the purpose of developing a portal/website to promote its business. So, undoubtedly such transaction was purely commercial in nature and in the light of the observation of the Hon'ble National Commission that the role of the Limited Company cannot be for the earning livelihood and the Limited Company does the commercial activities for its shareholders, we are of view the OP has succeeded in driving home its viewpoint that the Complainant is not a "consumer" within the meaning of Sec. 2(1)(d) of the 1096 Act and as such, the instant case is not maintainable here.
In the net, the instant MA is allowed on contest. MA is, thus, disposed of. The instant petition is not maintainable before the Consumer Commission and accordingly, the complaint case also stands dropped being not maintainable. [HON'BLE MR. DEBASIS BHATTACHARYA] PRESIDING MEMBER [HON'BLE MR. JAGANNATH BAG] MEMBER