State Consumer Disputes Redressal Commission
Prosenjit Saha vs The Manager, Power Distribution ... on 17 July, 2015
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/221/2015 1. Prosenjit Saha S/o Arun Kumar Saha, 63/17/13, Dum Dum Road, Kolkata - 700 074, Director, Code Clouds IT Solutions Pvt. Ltd. ...........Complainant(s) Versus 1. The Manager, Power Distribution Solutions Godrej & Boyce Manufacturing Ltd., Block-G.N., Sector-V, Salt lake City, Kolkata- 700 091, North 24 Pgs. 2. Manager, Eastman GC-195, Sector - III, Salt Lake, Kolkata - 700 106. 3. Mr. Kumar Abhishek Anand, Sales executives, Eastman GC - 195, Sector -III, Salt Lake, Kolkata - 700 106. 4. Mr. Suman Chakraborty, Sales executive, Eastman GC - 195, Sector -III, Salt Lake, Kolkata - 700 106. ............Opp.Party(s) BEFORE: HON'BLE MR. DEBASIS BHATTACHARYA PRESIDING MEMBER HON'BLE MR. JAGANNATH BAG MEMBER For the Complainant: Mr. Biswajit Ray Mr. Uttiya Saha Ms. Keka Chakraborty , Advocate For the Opp. Party: ORDER Order No. 2 date: 17-07-2015 Sri Debasis Bhattacharya Today is fixed for passing order in respect of the admissibility of the instant complaint case.
Short case of the Complainant is that it placed an order upon the OP Nos. 2 to 4 for interior decoration of its office and also made full payment for this purpose. However, the concerned OPs have failed to execute the work as per schedule, also several defects cropped up with regard to the work done by them, to which no satisfactory steps was taken. Several reminder letters made in this regard went in vain. Hence, the case.
Ld. Advocate for the Complainant has submitted that the instant case has been filed within the limitation period. From territorial and pecuniary jurisdictional aspects also, there is no infirmity with the present case. So, the instant case is a fit one for trial and adjudication before this Commission.
It transpires from the cause title of the complaint case that it is a Private Limited Company and undisputedly, the Complainant happens to be the Director of the Company. Admittedly, an order was passed by the Complainant upon the OP Nos. 2 to 4 for interior designing of its office, which is meant to promote the commercial activities of the Company.
Coming straight to the issue, it bears mentioning that under the Consumer Protection Act, 1986, there is no scope to give shelter to a person who hires/avails of service against consideration in case it is meant for commercial purpose. There is, however, a notable exception that "commercial purpose" does not include services availed by a person exclusively for the purposes of earning his livelihood by means of self-employment.
It is a fact that the Complainant has stated in page 3 of his petition of complaint that he runs the Company in question for the purpose of living his livelihood and maintaining his family. However, we cannot lose sight of the fact that admittedly it is a Private Limited Company and the Complainant happens to be one of the Directors of the Company concerned. It appears, under the Consumer Protection Act, 1986, there is no scope for a Private Limited Company to ventilate their grievance under the Act. In this regard, the observation of Hon'ble Supreme Court and Apex Commission bears recalling.
In a decision reported in 2012(2) CPR 68 (N.C.), the Hon'ble National Commission (M/S MCS Computer Services (P) Ltd. V. M/S Allena Auto Industries Pvt. Ltd.), has held that complaint filed by a Private Limited Company is not maintainable under the Consumer Protection Act, 1986 because the Limited Company cannot be for earning livelihood and it ventures into the commercial activities for its shareholders.
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".
Also pertinent in this regard is the decision of the Hon'ble Apex Court in the matter of Birla Technologies Ltd v. Neutral Glass and Allied Industries Ltd, reported in 2011(1) CPR 1 (SC), where the Hon'ble Court has categorically held that if the services are availed for commercial purpose then the dispute between the parties cannot be a "consumer dispute".
In the light of aforementioned settled position of law, we are inclined to hold that the present case is not maintainable before this Commission. As such, the same is not admitted and consequent thereof, the complaint case stands rejected. [HON'BLE MR. DEBASIS BHATTACHARYA] PRESIDING MEMBER [HON'BLE MR. JAGANNATH BAG] MEMBER