Birla Technologies
Ltd. Vs Neutral Glass and Allied Industries Ltd.
JUDGMENT
V.S. SIRPURKAR, J.
1.
Leave
granted.
2.
This
appeal is filed against the judgment passed by National Consumer Disputes
Redressal Commission (hereinafter called `the National Commission" for
short), allowing the First Appeal filed by the respondent herein holding that
the complaint filed by the respondent here in was tenable relating to its grievance
about the deficiency of service, under Section 2(1)(d)(ii) of The Consumer
Protection Act, 1986 (here in after called "the Act" for short) as
amended.
3.
The
appellant had sent a detailed proposal for developing certain computer software
for the respondent at a cost of Rs.36 lacs on 11.2.1998.This proposal was
accepted by the respondent who sent the letter of intent indicating its
intention to entrust the appellant with the development of the said software.
On 1.4.1998, the respondent sent a purchase order to the appellant regarding
the terms and conditions at which the appellant was to develop the software for
the respondent. That software was to take care of(1) Financial Accounting, (2)
Production, (3) Marketing, (4) Purchase, (5)Stores/Inventory, (6) Fixed Assets,
and (7) Pay Roll and Personnel System. The appellant wrote to the respondent on
3.2.1999 informing that the Stores and Purchase Modules had been installed in
the respondent's office on 1.2.1999. The appellant wrote on 4.2.1999 to the
respondent that since the respondent's requirements for the Marketing Module
had gone up considerably in comparison with what had been initially agreed
between the parties, the appellant would require additional 250 man hours to complete.
On 26.2.1999, the appellant informed the respondent that three Modules had been
successfully installed, they being, (1) Stores, (2) Purchase, and (3)
Production. Again on 17.3.1999, the appellant confirmed that even the Financial
Accounting Module was also successfully installed. Further, the appellant wrote
to the respondent that in view of the additional requirements of the
respondent, it would require350 man hours more. On 30.3.1999, the appellant
informed the respondent that the changes suggested by the respondent had been successfully
carried out. The appellant informed the respondent again that due to the
addition of 48 new functions to the Marketing Module, the estimation for the
Module had gone up by 45 man days, costing an additional Rs.60,000. On 7.4.1999
and 13.4.1999, the appellant informed that the Stores and Purchase Module and
Financial Accounting and Marketing Modules were also installed respectively on
those dates and sought for their feedback. Thereafter, there was a lot of
correspondence between the parties as regards the work of the said software and
in respect of the different Modules. It seems, at times, the respondent/complainant
expressed its satisfaction over the working of the Modules. All this happened
in the last months of 1999 and in January,2000. It seems that till February,
2000, the payment of the appellant was not released requiring the appellant to
write to the respondent for the same. The respondent thereafter started
complaining about the working of some Modules. In the month of September, 2000,
the respondent placed a fresh purchase order with the appellant for enhancement
of the Production Module, on which the appellant requested the respondent to clear
the outstanding dues which were not cleared till then. The appellant again
wrote to the respondent for payment in the month of April, 2001.
4.
The
disputes started taking ugly shape and the respondent started complaining about
the working of various Modules. On 15.4.2002, the respondent wrote a letter to
the appellant identifying the problems with various Modules of the software, which
letter was replied to by the appellant. There was then lot of correspondence
between September,2002 and March, 2003 as regards the Modules supplied. The
respondent, however, sent a legal notice to the appellant through its Advocate
on4.4.2003, wherein it alleged deficiency in services rendered by the appellant
with respect to all seven Modules developed by the appellant. There was another
legal notice sent by hand and ultimately a complaint against the appellant came
to be filed on 26.6.2003 before the State Consumer Disputes Redressal
Commission (hereinafter called "the State Commission" for short). The
appellant, by way of its reply to the complaint, raised a preliminary objection
that the respondent/complainant was not a` consumer' within the meaning of the
Act and also sought the decision on this preliminary objection as an issue. A
rejoinder was sent to this reply.
5.
By
its order dated 4.3.2004, the State Commission accepted the appellant's
preliminary objection and dismissed the complaint. The respondent/complainant,
therefore, filed First Appeal No. 218 of 2004before the National Commission. By
its order dated 17.12.2009, which is impugned here, the National Commission
reversed the order of the State Commission and held that the `goods' purchased
by the respondent from the appellant were being used by the respondent for a
commercial purpose, and, therefore, the respondent was not a `consumer' within
the meaning of Section 2(1)(d)(i) of the Act. However, the National Commission further
held that notwithstanding such findings, the respondent was entitled to
maintain a complaint under the Act with respect to the deficiency in service during
one year warranty period with respect to said goods relying on Section
2(1)(d)(ii) of the Act.
6.
We
have gone through the impugned judgment, wherein there is a clear cut finding
that the software in question amounted to sale of goods by the appellant to the
respondent for commercial purpose and as such the respondent would be excluded
for being considered as a `consumer' under Section 2(1)(d)(i) of the Act. However,
the National Commission then proceeded to hold that there was a warranty period
of one year in the year2000 and as such since the complaint was filed on
1.8.2000, i.e. prior to the amendment of Section 2(1)(d)(ii) by the Amendment
Act, 2002, a person hiring or availing of any services for a consideration was
not excluded even though the services were availed for any commercial purpose.
In that view, it proceeded to hold that if there was any deficiency in service
during the warranty period, the complaint could be maintained before the
consumer forum for the said purpose. For this, the National Commission relied
on its judgment in Meera Industries, Howrah Vs. Modern Constructions, Howrah
passed in R.P. No. 1765 of 2007.
7.
Shri
U.U. Lalit, learned Senior Counsel appearing on behalf of the appellant pointed
out that there is a basic error committed by the National Commission inasmuch
as it has proceeded on the basis that the complaint was filed on 1.8.2000,
which was prior to the amendment of Section2(1)(d)(ii) by the Amendment Act,
2002. Shri Lalit pointed out that the complaint in fact was filed on 26.6.2003
i.e. after the amendment of the said Section, which came on 15.3.2003. The
learned Senior Counsel, therefore, submitted that even if there was any service
which was hired from the appellant in view of the finding of the National
Commission that the goods themselves were purchased from the appellant for
commercial purposes, there would be no question of the service being included
in Section 2(1)(d)(ii) particularly in view of the amendment. The learned Senior
Counsel pointed out that the service offered by the appellant was only for
proper working of the Modules which were included in the software and as such
was for commercial purpose. He, therefore, pointed out that the order of the
National Commission holding the complaint maintainable to the extent of
services offered is clearly incorrect, as it proceeds on the wrong assumption
that the complaint was filed on 1.8.2000 i.e. before15.3.2003 when the
amendment was made to Section 2(1)(d)(ii).
8.
Shri
Sidharth Bhatnagar, learned Counsel appearing on behalf of the respondent could
not dispute this proposition and fairly accepted that the complaint was in fact
filed on 26.6.2003 i.e. much after the amendment to Section 2(1)(d)(ii), by
which the following words were added:- "but does not include a person who
avails of such services for any commercial purpose."
9.
In
view of the findings of the National Commission that the goods sold by the
appellant to the respondent/complainant amounted to `goods' and that such goods
were purchased for commercial purpose of earning more profits, there could be
no dispute that even the services which were offered had to be for the
commercial purpose. Nothing was argued to the contrary. It seems that the whole
error has crept in because of the wrong factual observation that the complaint
was filed on 1.8.2000. In that view, it has to be held that the complaint
itself was not maintainable, firstly, on the count that under Section
2(1)(d)(i), the goods have been purchased for commercial purposes and on the
second count that the services were hired or availed of for commercial
purposes. The matter does not come even under the Explanation which was
introduced on the same day i.e. on15.3.2003 by way of the amendment by the same
Amendment Act, as it is nobody's case that the goods bought and used by the
respondent here in and the services availed by the respondent were exclusively
for the purpose of earning the respondent's livelihood by means of self-employment.
In that view, it will have to be held that the complaint itself was not
maintainable in to
10.
However,
the National Commission has observed that if the respondent/complainant choose
to file a suit for relief claimed in those proceedings, they can do so
according to law and in such a case, they can claim the benefit of Section 14
of the Limitation Act to exclude the period spent in prosecuting proceedings
under the Act while computing the period of limitation prescribed for such a
suit.
11.
Shri
Lalit, learned Senior Counsel did not assail this observation. We, therefore,
do not wish to interfere with that observation. However, we observe that the
parties may avail of the remedies available to them in accordance with law. The
appeal is allowed. The order of the National Commission is set aside and the
complaint is dismissed with costs assessed at Rs.50,000/-.
...................................J.
[V.S. Sirpurkar]
...................................J.
[T.S. Thakur]
December
15, 2010;
New
Delhi.
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