VIKRANT GUPT vs SPECTRUM BUSINESS SUPPORT LTD

-THIS appeal has been filed against the judgment dated 21. 8. 2006 passed by the District Consumer Forum-II, Jaipur by which the complaint was dismissed.

THE complainant filed the complaint with this version that he purchased Grand Jurix from opposite party, which is in manufacturing of Electronic Library. The complainant paid a sum of Rs. 13,520 through two cheques which included subscription charges and updation charges for a period of one year. During this period, the opposite party was to deliver four CDs to the complainant. The opposite party vide its letter dated 23. 11. 2002 communicated to the complainant for updation charges for eight quarters CDs. The complainant deposited the required amount and in lieu thereof he received CDs for a period from December 2002 to September, 2004. The last pack of CDs of September 2004 was received by the complainant on 17. 11. 2004. It has been further averred that these CDs became non-operative from the month of December, 2004. It has further been stated that when the CDs did not operate after December 2004, a representation was sent to the opposite party and for the first time it was disclosed by the opposite party that since the complainant had not given subscription and updation charges, he was not entitled for use of CDs. It is alleged by the complainant that at the time of receiving subscription by the opposite party, he was informed that CDs would be effective and operative even if the complainant does not want to pay updation charges. Complainant prayed for refund of Rs. 25,235 with interest @ 18% per annum besides claiming Rs. 67,000 under different heads. The opposite party filed the reply submitting that the terms and conditions were known to the complainant at the time of giving subscription and as per terms and conditions he was supposed to pay further charges to continue the facilities of use of CDs.

The learned Forum arrived at the conclusion that the CDs made available to the complainant were not sold to him but those were given to him under a Licence Agreement. It was observed that the complainant could use the CDs only after paying renewal charges from time-to-time. As he stopped paying required charges, the Licence agreement came to an end. As no deficiency in service on the part of opposite party was found, the complaint was dismissed.

WE have heard both the Counsel. We have given due consideration to the arguments raised before us. We may at this juncture like to mention that acceptance of proposal is not necessarily to be in writing. It has been the contention of the opposite party that during installation of the product the computer screen showed the agreement and ''yes'' button was to be pressed, if the complainant agreed with the terms and conditions. Annexure R-3 clearly mentions as under : "spectrum Business Support Ltd. Product Licence Agreement" read this Agreement carefully before obtaining this package. By opening this package you agreed to be bound by the terms and conditions of this agreement. If you do not agree on this then immediately return this package unopened to their authorized dealer. . . . . Do you accept all the terms of the preceding Licence Agreement, if you choose no, the set up will close. To instal Grand Jurix you must accept this agreement. " Keeping in view the facts and circumstances as mentioned above, it cannot be said that terms and conditions of the agreement were not known to the complainant. The complainant is a practitioner Advocate in the Rajasthan High Court and, therefore, we expect that the terms and conditions must have come to his knowledge. From the terms and conditions of the agreement, the fate of the case is to be decided. It has to be seen whether it was a case of sale of the CDs or simply a licence, which was given to the complainant for a particular period. The entire scheme available on the record goes to show that the subscription was to be given from time-to-time. For continuing the use of the CDs, the complainant was required to continue with subscription payment. Even the password was not disclosed to him. All these facts go to show that the use of CDs was based on Licence Agreement by which the complainant was required to pay the subscription charges to make it continued. For this particular case, the charges as required were not paid by the complainant and, therefore, the CDs became non-operational. After going through the order of the learned Forum, it cannot be said that the same suffers from infirmity or illegality.

CONSEQUENTLY, we find no force in this appeal and the same is dismissed. Appeal dismissed.