MRS. NEENA SANDHU, MEMBER

1.       This is an appeal filed by the complainant/appellant against order, dated 5.3.2009 passed by District Consumer Disputes Redressal Forum-I, UT, Chandigarh (for short hereinafter to be referred as District Forum) in complaint case No. 1047 of 2008 vide which, it dismissed the complaint with costs of Rs.5,000/- filed by Sundlass Consultants, complainant and directed the complainant to pay the balance amount of Rs.9,000/- to the OP. 

2.         Briefly stated, the facts of the case are, that the complainant in the month of February, 2008, approached the OP, who deals in the business of providing net/web support in the form of Domain Name and Website. It was stated that the complainant made a total payment of Rs.13,180/- by way of two cheques for an amount of Rs.2,000/- & Rs.5,000/- and cash to the tune of Rs.6180/-. It was further stated that the OP assured the complainant that it would upload all information in regard to its company on the web and even upload the same in various search engines like Yahoo, Google etc and the complete web support was also to be supplied it (OP).  It was further stated that subsequently in the month of April, 2008, the complainant got the shock, when he visited the website, as developed by the OP, as it found that the information supplied on its website was simply copied from another website and this led to the ‘commission’ of a serious offence under the Copyright Act and the Information Technology Act, 2000. The complainant contacted the OP and even told about various shortcomings, on the website, upon which, the OP had assured that these facilities would be made available over the website, but it did nothing.  It was further stated that the website as desired by the complainant was never ever developed by the OP but rather through theft and illegal means, they procured information from the internet, copied it and pasted it to create an incomplete website, for the complainant. The complainant sent an e-mail to the OP on 1.5.2008, but the same failed to evoke any positive response, from it (OP).  It was next averred that the complainant was to serve as a gateway of intensive inter-action, with the visitors and its prospective customers. The complainant had, put in its hard earned money to develop this website. The complainant had asked for refund of the complete amount from the OP but it refused to do so. The complainant was forced to avail of the services of another Company for uploading the information over the internet, in relation to its company and in the process incurred expenses to the tune of Rs.2,800/- approximately. The above said act of OP amounted to deficiency, in service and hence, the complaint was filed.

3.         Reply was filed by the OP wherein it admitted the factual matrix of the case. It was pleaded that the complainant approached the learned District Forum with unclean hands by not disclosing the material facts. It was next pleaded that a total sum of Rs.32,000/- was settled, out of which, the OP received Rs.13,000/- and the balance amount of Rs.9,000/- was due from the complainant as it did not opt to have the Login Software.  It was further pleaded that no paid or search engine optimization was offered by the OP, to the complainant, and only designing the site, hosting and web support was the part of the contract. It was stated that the OP had sent an invoice dated 23.4.2008 for Rs.26,000/- in which it was stated that the complainant shall owe the deliverables after final payment, but as the complainant was having old relations with the OP, hence it ignored this condition and forwarded the hosting user name and password to it on 30.4.2008, through e-mail and trusted that it would make the payment, which it never made.  It was denied by the OP that the website of the complainant was copied from any other website. It was further stated that in fact, it was fully developed and prepared by the OP on the instructions of the complainant, sent by it through e-mails by way of attachments on different dates. All other allegations levelled by the complainant in the complaint were denied. It was further stated that there was no deficiency in service on its part.

4.       The parties led evidence, in support of their case.

5.       The learned District Forum dismissed the complaint, in the manner, referred to, in the opening para of the judgment.  

6.          Aggrieved by the order passed by the learned District Forum, the complainant filed an appeal. 

7.       We have heard Sh.R.K.Kakkar, Advocate for the appellant/complainant, Sh.Vikas Bali, Advocate for the respondent/OP and, have perused the record, carefully.

8.       The learned Counsel for the appellant/complainant argued that the complainant approached the OP for certain specific services of net and web, for which he had paid a sum of Rs.13,180/-. It was submitted that the website developed by the OP was simply copied from another website. Not only this, there were many shortcomings, which were duly pointed out to the OP, it failed to rectify the same and the complainant left with no other alternative than to seek the refund of the amount, which it had already deposited with the OP.

9.       The learned counsel for the respondent/OP argued that the complainant had an unnecessarily filed the complaint just to avoid the payment of balance amount of Rs.9,000/-. It was submitted that the complainant made false allegations that the website, which was developed by the OP was a copied one, whereas it had failed to produce any document/proof in that regard. It was further submitted that if the complainant had any grievance, regarding the discrepancies in the formation of the website then it should have lodged a complaint under the Copyright Act, rather than to file a complaint in the Consumer Forum. 

10.     After giving our thoughtful consideration to the submissions of the learned Counsel for the parties and, on going through the facts of the case and evidence, on record, carefully, we are of the opinion that the appeal filed by the complainant is liable to be dismissed. Admittedly, the parties entered into contract, as a result whereof, the website of the complainant was to be developed, hosted and domain name was to be booked including the login software, by the OP, on payment of Rs.32,000/- by the complainant. It was also settled that if login software was not availed of by the complainant, then it had to pay a sum of Rs.22,000/-. Out of this amount, a sum of Rs.13,000/- was paid by the complainant on different dates. R-1 e-mail was sent by the OP to the complainant that the former had developed and hosted the website of the latter. The complainant was also asked to check the functionality of the website and, in case of any problem intimation be given, so that the same could be solved. The hosting details were also provided vide this e-mail. It was also intimated that in case, the complainant did not want to avail of login software then a sum of Rs.10,000/- would be deducted from the total cost. The complainant was also asked to pay the remaining amount of Rs.9,000/-. Instead of doing so, the complainant alleged that the information supplied in the website of the complainant was simply copied from another website. No evidence was produced by the complainant that information supplied in the website by the OP, was copied by the latter from another website. In response to the e-mail sent by the complainant e-mail R-3 was sent by the OP, paras No.3 to 5 whereof read as under :-

“3. Well in case the existing site was never as per your specification, you should have stopped us from hosting the site on net and communicated us. The site was hosted 26 days back and since then you have been using the site and today, we are talking about specifications.

4. We are not here to command anybody’s business and giving any sort of advt.’s as per your wish, we cannot be held responsible. We were never told or communicated about advertisements, rather in case the site was not complete as per your specifications and time frame, you should have held the advts or stopped us then from proceeding, rather than sending such mails.

5. To put to your notice once again that, you had done similar thing when your other site was being made (www.tea-theenglighacademey.com). We had designed dynamic pages for you and rather being paid for that, we had to finally offload the dynamic part designed specifically for your (mails of the communication are still in our record).”

Even the complainant was unable to point out any deficiency, in the website developed by the OP. An after-thought story was invented by the complainant to avoid the payment of balance amount of Rs.9,000/-. No complaint under the Copyright Act, was filed by the complainant, as there was no violation of the provisions thereof by the OP. The District Forum was right in holding that there was no deficiency, in service, on the part of the OP. The order of the District Forum does not suffer from any illegality or perversity warranting the interference of this Commission.

11.     The appeal filed by the complainant, being devoid of merit, is dismissed with no order as to costs. The order passed by the learned District Forum is upheld. The parties are left to bear their own costs.

12.          Copies of this order be sent to the parties, free of charge.

Pronounced.                                                                        

20^th April, 2011.