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Judgment
V.K. Jain, J
The complainant is a company incorporated under the provisions of the Companies Act, 1956 and is engaged in manufacturing of fabrics and bags etc., which are used in industrial bulk packaging. The complainant company claims to have an yearly turnover of around Rs.200 Crores and claims to employ about 750 employees and workers. It is alleged in para 7 of the complaint that the business of the complainant being vast, cannot be managed without having an effective Enterprises Resource Planning (ERP), which is a business management software, usually a suite or collection of integrated applications, which an organization can use to store, manage and retrieve data from and at every stage of business. It is alleged in para 10 of the complaint that ERP provides an integrated real time view of core business processes using common databases, maintained and managed by a database management system. The use and applications of ERP have been detailed in para 10 to 13 of the complaint and need not be elaborated.
The complainant selected the OP as the Base Product selling organization on the recommendation of the Godrej Infotech Ltd., the said company being an implementing agency. The complainant selected a product of the OP namely 'Infor ERP (LN 6.1 FP 7) and also executed a Software License Agreement and a Software Support Agreement with the OP. Alleging defects and deficiencies in the product as well as the services provided by the OP, the complainant is before this Commission by way of this Consumer Complaint seeking payment of Rs.30,41,61,604/- from the OP in addition to expenses etc.
The complaint has been resisted by the OP which has taken a preliminary objection that a Consumer Complaint invoking the provisions of Consumer Protection Act is not maintainable. IA No. 7682 of 2017 has also been filed by the OP seeking dismissal of the Consumer Complaint. No reply to the said application has been filed and when this matter came up for hearing on 06.08.2018, about nine months ago, the Authorized Representative of the complainant namely Mr. Ankur Srivastava stated that no reply was sought to be filed by them to this application.
I have heard the learned counsel for the parties.
Section 2(1)(d) of the Consumer Protection Act which defines the term "Consumer", to the extent it is relevant, provides that the said term does not include a person who purchases goods or hires or avails services for a commercial purpose unless he can bring his case within the four corners of the explanation below Section 2(1)(d) of the Consumer Protection Act.
In the present case, the complainant has not invoked the explanation below Section 2(1)(d) of the Consumer Protection Act. Even otherwise, the said explanation is not applicable in the case of a company, the same being applicable only to an individual who purchases goods or hires or avails services for the purpose of earning his livelihood by means of self-employment.
It is evident from the averments made in the complaint itself that ERP Solution is vital for the business purpose of the complainant company. This is complainant's own case that its business being vast, it cannot be managed without having an effective ERP. The importance of ERP for the business of the company has been explained in para 9 to 13 of the Consumer Complaint and need not be elaborated. Suffice it to say that the large business of the complainant cannot be efficiently managed without the ERP Solution. The said solution, as per the case of the complainant, helps in advancing the business of the complainant company.
The learned counsel for the complainant relies upon the decision of this Commission in Meera and Co. Ltd. Vs. Chinar Syntex Ltd. decided on 29.01.2004. In the above referred decision, the respondent before this Commission had purchased a diesel generating set on 14.02.1994 which developed some defects. Alleging deficiency in the services, the respondent filed a Consumer Complaint in which a preliminary objection was taken that the respondent was not a consumer since the generating set was purchased for a commercial purpose. The contention was rejected by this Commission holding that even if the generating set was purchased for commercial purpose, since the defects had developed within the warranty period of one year, the respondent would be a consumer. This judgment however, would not apply to the present case inter-alia for the reasons that the generating set was purchased years before Section 2(1)(d) of the Consumer Protection Act came to be amended with effect from 15.03.2003.
On the other hand, the learned counsel for the OP has placed reliance upon the decision of the Hon'ble Supreme Court in Birla Technologies Limited Vs. Neutral Glass and Allied Industries Limited (2011) 1 SCC 525 decided on 15.12.2010, wherein the respondent before the Hon'ble Supreme Court had purchased a computer software from the appellant on 01.04.1998. The Consumer Complaint against the appellant, alleging deficiency in the goods purchased and the services hired or availed by the respondents however, came to be filed on 26.06.2003. It was inter-alia held by the Hon'ble Supreme Court that the complaint itself was not maintainable, goods having been purchased for commercial purpose and the services also having been hired for a commercial purpose.
The present matter in my opinion, is clearly covered by the above referred decision of the Hon'ble Supreme Court. I have no hesitation in holding that the ERP Solution was purchased and the services of the OP were hired by the complainant for a commercial purpose. In fact, in this case, even the ERP Solution was obtained after amendment of the Act. As a result, a Consumer Complaint for redressal of the grievances alleged in this complaint, is not maintainable. The complaint is therefore, dismissed with liberty to the complainant to avail such remedy other than a Consumer Complaint as may be open to it in law. It is made clear that the Consumer Complaint has not been examined by this Commission on merits and in the event the complainant approaches a Civil Court for the redressal of his grievances, it shall be open to it to seek benefit of the provisions contained in section 14 of the Limitation Act, provided such a benefit is otherwise admissible to it in law.