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Vikson Commodities Private Limited through its authorized representative i.e. v/s Just Dial Private Limited through its Managing Director & Another

    First Appeal No. 7 of 2014
    Decided On, 13 January 2014
    At, Union Territory Consumer Disputes Redressal Commission UT Chandigarh
    By, THE HONOURABLE JUSTICE SHAM SUNDER (RETD.)
    By, PRESIDENT & THE HONOURABLE MR. DEV RAJ
    By, MEMBER
    For the Appellant: P. K. Kukreja, Advocate. For the Respondents:---------


Judgment Text
Dev Raj, Member:

1. This appeal is directed against the order dated 25.11.2013, rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which it dismissed the complaint, filed by the complainant (now appellant).

2. In brief, the facts of the case, are that the complainant Company, being run by the closely related family members for self employment, entered into an agreement with Opposite Party No.1, for a period of one year commencing from 1.4.2010 to 31.3.2011.It was stated that during the said period, Opposite Party No.1 had agreed to provide services i.e. recommendations to various clients through web, voice call, sms etc. for availing of services of the complainant for the purpose of dealing in commodities market. It was further stated that the contract for the said period was for Rs.16,545/- (Annexure C-1). It was further stated that the complainant paid the agreed consideration charges for the initial three months for Rs.4136/- through cheque, and for the rest period of nine months, Opposite Party No.1, was facilitated payment through ECS (Electronic Clearing Service – (Debit Clearing) Mandate) @Rs.1378/- per month, to be withdrawn, from Opposite Party No.2 Bank. It was further stated that the complainant issued written instructions, to Opposite Party No.2, for ECS transaction for a period of 9 months to permit transfer of Rs.1378/- p.m. (Annexures C-2 to C-3).It was further stated that the said agreement with Opposite Party No.1 expired on 31.3.2011, but still Opposite Party No.2 had permitted Opposite Party No.1 for withdrawal of ECS amount from the account of the complainant, beyond the said period. It was further stated that an amount of Rs.20,822/- was withdrawn in excess, from the account of the complainant (Annexure C-4 Colly.). It was further stated that the matter was brought to the notice of Opposite Parties, by sending letters, as well as legal notice, but to no avail.When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the 'Act' only), was filed seeking directions to the Opposite Parties to pay Rs.20,822/- alongwith interest @18% per annum, from 1.8.2012; Rs.,1,00,000/- as compensation for mental agony and physical harassment besides Rs.22,000/- as cost of litigation.

3. Opposite Party No.1, in its written version, took up a preliminary objection, to the effect, that neither the complainant was a consumer nor it was a consumer dispute; that by entering into the contract, the complainant availed of the services of Opposite Party No.1 to promulgate business, generate substantial clientele and earn profits; hence this complaint was not maintainable. On merits, it was admitted that the complainant entered into an agreement, with Opposite Party No.1, for availing of its services. It was also admitted that the total contractual amount was Rs.16,545/-. It was denied that the contract period was for a period of one year i.e. from 1.4.2010 to 31.3.2011. It was further stated that the agreement dated 1.4.2010, was active, beyond the initial minimum tenure of 1 year, owing to the fact, that adhering to the terms of the agreement as specified in Clause-A(i) of the 'Addendum to the Terms of Service', Opposite Party No.1 was providing services to the complainant, and payment for the same was being made through ECS. It was further stated that Opposite Party No.1, received the request of the complainant, to stop the ECS only on 11.8.2012 and by 13.8.2012, the needful was done. It was further stated that the averment of the complainant that the contract was for a limited period of one year was a complete afterthought. It was further stated that the contract was conditional and it contained an automatic renewal clause, hence the contention of withdrawal of an amount of Rs.20,822/-, in excess of the contractual amount, till July, 2012, was baseless.It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.1, nor did it indulge into unfair trade practice. The remaining averments, were denied, being wrong.

4. Opposite Party No.2, did not appear before the District Forum, despite service, and, accordingly, it was proceeded exparte vide order dated 09.09.2013.

5. The Parties led evidence, in support of their case.

6. After hearing the Counsel for the contesting parties, and, on going through the evidence and record of the case, the District Forum, dismissed the complaint, as stated above, in the opening para of the instant order.

7. Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.

8. We have heard the Counsel for the appellant, at the preliminary stage, and have gone through the evidence and record of the case, carefully.

9. The Counsel for the appellant/complainant submitted that, as per Exhibit C-1, the appellant/complainant entered into an agreement with Opposite Party No.1, commencing from 1.4.2010 to 31.3.2011 for a consideration of Rs.16,545/-. It was further submitted that the appellant/complainant paid Rs.4,136/- through cheque and issued nine months ECS of Rs.1,378/- per month. It was further submitted that Opposite Party No.2, was not authorized to transfer the amount, from the account of the appellant/complainant, after the expiry of nine months. It was further submitted that ECS was only valid for a period of nine months, which expired on 31.03.2011. It was further submitted that the District Forum did not appreciate the fact that no services were availed of by the appellant/complainant after 31.3.2011 and, thus, the appellant/complainant was not liable to pay the charges.

10. After giving our thoughtful consideration, to the submissions, made by the Counsel for the appellant/complainant, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, at the preliminary stage, for the reasons to be recorded hereinafter.

11. The first question, which arises for consideration, is, as to whether, the appellant/complainant is a consumer or not. The Opposite Party No.1 took a specific objection that the appellant/complainant was not a consumer and the dispute was also not a consumer dispute, as the appellant/complainant availed of the services of Opposite Party No.1, to promulgate business, generate substantial clientele and earn profits. Even otherwise, the appellant/complainant is a Private Limited Company and the services to be provided viz. recommendations to various clients through web, voice calls, sms etc. were totally commercial in nature. Thus, the appellant/complainant did not fall within the definition of ‘consumer’ as defined in Section 2(1)(d)(ii) of the Act, which is extracted below:-

'(d)"consumer" means any person who-

(i) xxxxx(ii) hires or avails of any services 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 services 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 services for any commercial purposes;

Explanation.- For the purposes of this clause, 'commercial purpose' does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;'

12. The next question, which arises for consideration, is as to whether the Opposite Parties withdrew an amount of Rs.20,822/-, in excess, of the contractual amount or not. Clauses A(i) and (C) of Annexure R-2, which is Addendum to the Terms of Services, duly signed by the appellant/complainant, are extracted below:-

'(A) This Clause (A) applies if you have availed of the Electroinc Clearing Scheme (ECS) introduced by JustDial to enable easy, regular and paperless transfer of monies by way of service charges from you to JustDial.

You will give your bankers clear instructions for debit from your account the amount you have contracted to pay JustDial at such intervals as agreed with JustDial. A copy of the ECS request shall be submitted to us together with the signature of this Addendum.

Notwithstanding anything contained in the Terms of Service or any other contract with JustDial -

(i) If you are an Advertiser applying for any package or exclusive listing or any other listing/services except Platinum or Diamond listing. The Contract would be valid indefinitely. Except for termination in accordance with the Terms of Service for a material breach of JustDial. You shall not have the right to terminate the Contract other than by prior written notice of three months issued to JustDial after a minimum period of 9 months from the Contract’s effective date. If you terminate the Contract in contravention of this clause you shall be liable to pay JustDial all amounts that you would have paid had not the Contract been terminated. You shall not withdraw the ECS mandate during the validity of your Contract. In addition to any other consequence or liability that you may incur as a result of a breach of this Addendum, JustDial may initiate approptiate legal proceedings including under the Payment and Settlement Systems Act, 2007.

(B) xxxxx

(C) Registration Fee and Payment by ECS: The Contract would be valid for 12 months from the Contract’s effective date. Except for termination in accordance with the Terms of Service for a material breach by JustDial, you shall not have the right to terminate the Contract unless you fulfill both the conditions herein: a) Issue a prior written notice of three months to JustDial only after a minimum period of 9 months from the Contract’s effective date; and b) You have paid the total contract value to JustDial simultaneously with the aforesaid notice. The foregoing terms (Clause A(ii)) related to registration fee and payment through ECS which are applicable to advertisers in categories other than Platinum/Diamond Listing shall be applicable to you as an advertiser of Platinum/Diamond Listing. Provided however that the registration fee may be equivalent, at your option, to two months or three months fees of the total fees payable by you per annum.'

13. It is clearly evident, from the aforesaid clauses, that the appellant/complainant was having the right to terminate the Contract unless it (complainant) fulfilled both the conditions viz. a) Issue a prior written notice of three months to Just Dial only after a minimum period of 9

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months from the Contract’s effective date and b) paid the total contract value to JustDial simultaneously, with the aforesaid notice. However, the appellant/complainant failed to send a written notice to Opposite Party No.1, terminating the contract after the expiry of minimum period of 9 months. In the absence of issuance of notice for termination, as provided by the aforesaid clauses, the contract remained operative. The District Forum, thus, rightly held that the payment charged by Opposite Party No.1, for the period it provided the services, till the receipt of request, from the complainant, for termination of the services, was justified. In this view of the matter, no deficiency in rendering service, could be attributed to the Opposite Parties. 14. No other point, was urged, by the Counsel for the appellant/complainant. 15. For the reasons recorded above, the appeal filed by the appellant/complainant is dismissed, at the preliminary stage, with no order as to costs. The order passed by the District Forum is upheld. 16. Certified Copies of this order be sent to the parties, free of charge. 17. The file be consigned to Record Room, after completion.
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