HYDERABAD

FA.No.1629/2005 AGAINST C.D.No.1264/2004, DISTRICT CONSUMER FORUM-I, HYDERABAD.

Between:

WIN INFORMATION TECHNOLOGY PVT. LTD.,

(Formally known as Win Information Technology Consultants

Pvt. Ltd.,) rep. by its Managing Director,

Mr.Prakash Srivastav, Road No.9,

H.No.402, Plot No.30-C, Film Nagar,

Jubilee Hills, Hyderabad-500 033.                                                 ..Appellant/

                                                                                                                          Opp.party

                        AND

Mr.C.V.Madhusudhan Rao,

S/o.C.Chalamaiah,

Aged about 32 years,

R/o.Plot No.426, B.N.Reddynagar,

Vanasthalipuram,

R.R.District.                                                                                                   Respondent/

                                                                                                                        Complainant

Counsel for the Appellant: M/s.Ajay Kumar

Counsel for the Respondent: M/s.D.Jagadishwar Rao.

QUORUM: THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT

AND

SMT.M.SHREESHA, MEMBER

FRIDAY, THE TENTH DAY OF OCTOBER,                

TWO THOUSAND EIGHT

Oral Order:(Per Smt.M.Shreesha, Hon’ble Member)

***

Aggrieved by the order in C.D.No.1264/2004 on the file of District Forum-I, Hyderabad, opposite party preferred this appeal.

The brief facts as set out in the complaint are that the complainant is a post graduate and approached opposite party in response to an advertisement  for providing training followed by placement.  The complainant entered into an agreement on 21-12-1999 according to which he has to pay Rs.1 lakh to the opposite party and opposite party agreed to provide training for a period of six months in several subjects of computer like VB 6.0 Active X.Com DCOM. HTML, V.B.Script, J.script, ASP, Visual Interdev and back office servers (II9, Microsoft Transactions Server, SQL Server, Proxy Server, INDEX Server.  It is the case of the complainant that the opposite party also agreed to provide four weeks training in case of inadequacy and also promised to provide 4 months development training prior to placement and after completion of all successful training courses, agreed to place the complainant with a job abroad with handsome salary.  Opposite party accordingly stipulated a term in the said agreement and in case of unavoidable circumstances of not providing a job to the complainant  abroad within 10 months, they promised to pay a salary of Rs.8,000/- per month and in case the placement is delayed beyond six months, then the salary will be increased to Rs.12,000/-.  The complainant further submitted that after completion of the training, opposite party did not provide any job either abroad or in India and also did not return Rs.1 lakh and made the complainant run from pillar to post.  After thorough persuation and repeated requests, opposite party paid a sum of Rs.16,000/- by way of 4 cheques at Rs.4,000/- each from July, 2001 to October, 2001 and thereafter paid a sum of Rs.4,000/- by way of cheque in October, 2002 thus the opposite party in total paid a sum of Rs.20,000/- and  did not show any interest in absolving the complainant in any job as agreed in the Agreement.  The complainant therefore got a legal notice dated 24-6-2004 calling upon the opposite party failed to pay the balance amount with interest at 24% p.a. together with costs but received no response.  Hence the complaint for a direction to the opposite party to pay Rs.80,000/- along with interest at 24% p.a., damages of Rs.1,00,000/- and costs.

Opposite party filed counter and admitted that the complainant has paid Rs.1 lakh to him and that he has provided training as per the terms and specifications mentioned in the agreement in various courses pertaining to computer and software.  Opposite party submitted that the complainant is having very weak grasping power and therefore he had to take extra classes to make the complainant perfect in the course specified with great difficulty and the complainant completed the course and that they did not charge extra amount for the additional training period classes.   Opposite party submitted that they forwarded the papers of the complainant to send him abroad and thereafter sent the complainant for interview but he miserably failed in the interview.  Opposite party also submitted that they again sent the complainant for another interview but on this occasion also the complainant failed and  submitted that they complied with the terms and conditions laid down in the agreement dated 29-12-1999 and if the complainant failed in the interviews and his candidature was rejected, they cannot be held responsible.  Opposite party further submitted that with an intention to help the complainant on humanitarian grounds, they considered his candidature and provided job in their office and paid salary through cheque but the complainant misused the same as payment source for Rs.1,00,000/- and was very irregular to office and never worked to their satisfaction.  They submitted that there is no deficiency of service on their behalf and prayed for dismissal of the complaint.

Based on the evidence adduced i.e. Exs.A1 to A6 and B1 and the pleadings put forward, the District Forum allowed the complaint in part directing the opposite party to refund Rs.80,000/- with interest at 12% p.a. from 16-11-2002 till the date of filing of the complaint and from the date of filing of complaint at 9% p.a. together with costs of Rs.2,000/-.

Aggrieved by the said order, opposite party preferred this appeal.

The learned counsel for the appellant submitted that the Forum has not appreciated the fact that the complainant is not a ‘consumer’ and that it ought not have admitted the complaint as the same was filed in 13-9-2004 and the agreement is dated 21-12-1999 and therefore the complaint was barred by limitation.  He also submitted that the duty of the appellant under the Agreement was to provide training to the respondent for a period of six months and providing employment is only incidental and that the appellant fulfilled their part of obligation by providing the necessary training  and by giving necessary assistance to respondent to apply to various companies and also providing employment with themselves thereafter.  He submitted that they assisted the respondent in getting an appointment letter from U.S.A. on the basis of which the respondent filed documents for Visa at U.S. Embassy and his failure to get visa is not their failure and thus they discharged their part of obligation He further submitted that the Forum erred in holding that the appellant has not complied with clause 7 of the agreement and not paid Rs.8,000/- to the complainant and ought to have seen that the complainant was placed in their organization and as the complainant failed to convert his interviews into employment.  The learned counsel for the appellant contended erred in holding that the salary paid to the respondent during his course of employment as repayment of Rs.1,00,000/- paid by respondent to the appellant towards training.  He  submitted that there is no clause in the agreement which states that the appellant shall be liable to refund any money to the complainant even if there is any deficiency of service.  He further submitted that the District Forum erred in holding that the amount of Rs.1,00,000/- is taken by the appellant for providing training and placement.  He submits that there is no question of repayment of money to the respondent whatsoever and that District Forum erred in grating interest on Rs.80,000/- and that the question of payment of any interest under the said agreement dated 21-12-1999 does not arise.  He also submitted that the letter of appointment given to the respondent on the basis of which he attended interview was not filed, which shows that there is clear deficiency of service and prayed to allow the appeal.

The facts not in dispute are that the complainant approached opposite party in response to an advertisement and entered into an agreement dated 21-12-1999 and paid Rs.1,00,000/- to provide training in various computer software courses.  It is the complainant’s case that the opposite party agreed to provide four weeks training and also four months development training prior to place and after successful completion of these courts also promised to place the complainant with a job abroad with handsome salary.  Opposite party accordingly stipulated a term  in the said agreement and in case of unavoidable circumstances of not providing a job to the complainant abroad within ten months, promised to pay a salary of Rs.8,000/- per month and if it is delayed beyond a period of six months then an amount of Rs.1200/- will be paid.  It is the case of the appellants that it was the complainant, who was not successful in the interview inspite of several opportunities provided to him and was very irregular to the office and was continuously absent and never worked to their satisfaction.  The learned counsel for the appellant/opposite party contended that there was no clause in the agreement which states that the appellant is liable to refund any money to the complainant in the event of any deficiency of service and that the letter of appointment given to the respondent/complainant  on the basis of which he attended the interview was suppressed by the complainant.

On perusal of the agreement  i.e. Ex.A1 admittedly entered into between the complainant and the opposite party on 21-12-1999, we observe the following terms and conditions, which is the main point for consideration in this appeal.

3. The training provided to the SECOND PARTY shall be imparted

    at 5 hours per day for a total duration of six months and in case of

    inadequacies deemed so solely by the FIRST PARTY the training

    shall be prolonged to another 4 weeks extra i.e. one month period.

4. After the successful completion of the program the FIRST PARTY

      shall put the SECOND PARTY on the Development Project for a

      period of 4 months prior to Placement.

5.        After placement of the SECOND PARTY, the SECOND PARTY is

alone responsible for all the acts, deeds and things done by him/her

at that place and the FIRST PARTY is not liable in whatsoever

manner.  The SECOND PARTY further agreed to indemnify and

keep indemnified the FIRST PARTY all the damages etc. sustained

by the FIRST PARTY on account of the acts, deeds and things done

by the SECOND PARTY after placement in UK, USA, Singapore,

New Zealand, Australia or Canada.

          6.  The SECOND PARTY will be provided with a letter of appointment

               within a period of twelve months from the commencement of Training.

           7.  In case of some unavoidable circumstances if the FIRST PARTY is

                 unable to place the SECOND PARTY within 10 months, the FIRST

                PARTY is liable to pay a salary of Rs.8,000/-(Rupees eight Thousand

                only) per month to the SECOND PARTY till the FIRST PARTY places

                the SECOND PARTY.  In case the placement is delayed beyond 6

                months (after the initial first 12 months) then the salary will be

                increased to Rs.12,00/-‘.

These terms and conditions clearly state that in case of any inadequacy, the training will be prolonged to another four weeks.  The appellant also failed to file any attendance particulars in support of their contention that the respondent/complainant was very irregular, therefore the contention of the appellant that the complainant was very irregular is unsustainable.  The appellant also contended that they have discharged their part of the obligation and that it was the complainant, who failed to convert his interviews into employment.  Clause 7 of the agreement does not state anywhere that these terms will not be complied with by the appellant, if the respondent fails to convert his interviews into employment.  Any such condition has not been stipulated in these terms and conditions.  Clause 7 clearly states that if the first party i.e. appellant is unable to place the second party i.e. the respondent/complainant within ten months, the appellant has to pay a salary of Rs.8,000/- per month to the complainant and if the placement is delayed beyond six months then the salary will be increased to Rs.12,00/-.  To reiterate, no further conditions are stipulated and we also observe from the record that the complainant was paid Rs.4,000/- per month in June, July, August, September and October, 2001 (Ex.B1).  Thereafter the complainant was not placed and shown any job opportunity and the appellant is bound by the terms and conditions of the agreement dated 2012-1999.  However, we are of the considered view that the respondent/complainant is not entitled to the interest that is awarded by the District Forum since the entire balance amount of Rs.80,000/- has been directed to be refunded.  We do not see any justifiable grounds for interest to be awarded, since the complainant has taken training for a couple of months from the appellant.

            In the result this appeal is allowed in part and the order of the District Forum is modified by deleting interest awarded by the District Forum while confirming the other aspects of the order of the District Forum.  Time for compliance four weeks.

PRESIDENT.             LADY MEMBER. 

                                                                        Dated 10-10-2008