Punjab

StateCommission

A/168/2015

Blossoms Senior Secondary School - Complainant(s)

Versus

M/s Educamp Solutions Ltd. - Opp.Party(s)

Renu Rishi Gautam

10 Mar 2017

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL COMMISSION,  PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                   First Appeal No.168 of 2015

 

                                                          Date of Institution: 10.02.2015

                                                          Order Reserved on : 09.03.2017

                                                          Date of Decision:   10.03.2017

 

Blossoms Senior Secondary School, Nabha Road, Patiala through its authorized representative Smt. Sant Kaur Chahal.

 

 

                                                                           Appellant/Complainant

                   Versus

 

1.      M/s Educomp Solutions Limited 1211, Padma Tower -1, 5,  Rajendra Palace, New Delhi 110008 through its Managing        Director.

2.      M/s Edu Smart Services Private Limited, Regd., Office WZ 931 A/2, Street No. 14 A/2, Sandh Nagar, Palam Colony, New       Delhi through its Managing Director

 

 

                                                              Respondents/Opposite parties

 

First Appeal against order dated 22.09.2014 passed by the District Consumer Disputes Redressal Forum,  Patiala.

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member.

            Smt.Surinder Pal Kaur, Member

         

Present:-

          For appellant                : Sh.Aman Dhir, Advocate

          For respondents           : Sh. N.S.Sidhu, Advocate

          . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellant has directed this appeal against order dated 22.09.2014 of District Forum Patiala, dismissing the complaint of the complainant. The appellant is the complainant in the original complaint before District Forum and respondents of this appeal are OPs therein and they be referred as such hereinafter for the sake of convenience.

2.      The complainant has filed the complaint U/s 12 of The Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that OPs approached the complainant on 23.02.2010 to provide services for giving smart class programs for the students of Blossoms Senior Secondary School Nabha Road Patiala including providing the hardware and making available the repository of its digital content and further to provide service for proper working of the system for five years. Agreement dated 19.03.2010 was entered into between the opposite party no.1 on one part, complainant on second part and opposite no.2 on third part in this regard. The OPs agreed to provide the educational service including hardware in computer, UPS, server, printer, networking etc to the complainant. There was no sale of hardware envisioned thereunder and the contract signed by the complainant was not reflective of the actual service being offered. It was settled that OPs would provide service for the proper and smooth working of the said system for a period of five years and they would also engage resource coordinator for smooth running of the hardware and the repository. The other terms and conditions were also settled between the parties in the shape of an agreement. The complainant could ask for additional service to provide more classrooms, as per promised discussion. The OPs were asked to provide the services in eight more classrooms, but OPs flatly refused to add eight more classes. Additional equipments with new rates and demand of a huge amount was raised from the complainant therefor. The complainant spent huge amount in this regard on the infrastructure. The complainant sent letter, vide reference no. BS/201-11 dated 14.07.2011 to OPs terminating the agreement dated 19.03.2010 and requesting to collect the outstanding amount of Rs.72,000/-. The OPs sent letter dated 07.09.2011 to complainant with malafide intention and raising huge demand of Rs.14,04,000/- from the complainant on account of upfront hardware cost for 03 ETEC - Rs.5,52,880/- and service cost as on 31.07.2011 - Rs.8,51,320/-. The complainant was not liable to pay such amount to the OPs. The OPs again sent a letter dated 23.04.2012 to the complainant by reducing their illegal demand from Rs.14,04,000/- to Rs.5,52,510/-. Rachna Narag on behalf of OPs sent an e-mail dated 21.02.2013 to the complainant by reducing demand to Rs.4,69,780/- contrary to the assurances. The OPs served legal notice dated 27.06.2013 upon complainant through counsel raising illegal demand of Rs.2,16,000/-, it was duly received by counsel for the complainant on 13.09.2013. The OPs were requested to receive the amount of Rs.72,000/-  to clear the dues. The complainant was not liable to pay any such amount to OPs because agreement stood terminated between the parties on 01.08.2011, if any. The amount sought to be recovered by the OPs has become time barred. The complainant has, thus, filed complaint directing the OPs to uplift the hardware/equipments lying at the premises of complainant, to collect Rs.72,000/- from complainant and to clear all dues as per agreement, besides Rs.4,00,000/- as compensation for mental harassment and Rs.55,000/- as costs of litigation.

3.      OP no.1 was set exparte by District Forum, vide order dated 10.07.2014 and OP no.2 was also set exparte by District Forum, vide order dated 20.08.2014.

4.      The complainant led exparte evidence before District Forum consisting of documents Ex.C-1 to Ex.C-14. On conclusion of evidence and arguments, the District Forum Patiala dismissed the complaint of the complainant by virtue of order dated 22.09.2014. Dissatisfied with the order of the District Forum Patiala dated 22.09.2014, the complainant now appellant, carried this appeal against the same.

5.      Initially, the appeal was dismissed as barred by this time by this Commission, vide order dated 26.03.2015. Revision Petition was preferred in the National Commission New Delhi by the appellant and National Commission condoned the delay on payment of Rs.5,000/-  and thus remanded the case for decision of appeal on merits. Cost paid, vide order dated 18.07.2016 and appeal proceeded further for arguments of the case.

6.      We have heard learned counsel for parties at considerable length and have also examined the record of the case.

7.      Affidavit of Sant Kaur Chahal Manager Blossoms Senior Secondary School Nabha Road Patiala  Ex.C-A is placed on the record in support of the case of the complainant. Agreement for smart class programme between the parties is Ex.C-1 on the record. Clause 4 of the agreement is reproduced as under :-

          "In case it is considered necessary by both the parties mutually       to provide any additional equipment or services or to upgrade       the equipment installed in Party B during the duration of the     agreement, the same shall be supplied by Party C to Party B at   the price as agreed between both the parties."

The entire case hinges on the interpretation of Clause 4 of the agreement. It is evident from perusal of Clause 4 of the agreement that the below noted conditions have to be complied with for making it operative. It is considered necessary by both the parties mutually to provide any additional equipment or services or to upgrade the equipment installed in Party B during the duration of the agreement, the same shall be supplied by Party C to Party B at the price, as agreed between both the parties during the duration of the agreement. The same shall be supplied by Party C to Party B at the price, as agreed between both the parties. The case of the complainant now appellant is that, as per agreement executed between the parties, the OPs were bound to provide the additional service for the added classes therefor. The District Forum has dealt with this point and recorded the observation in the order under challenge in this case.    Clause 4.1 of the agreement Ex.C-1 provides, "in case it is considered necessary by both the parties mutually to provide any additional equipment or services or to upgrade the equipment installed in Party B during the duration of the agreement, the same shall be supplied by Party C to Party B at the price as agreed between both the parties." Here it may be noted that in the agreement Ex.C-1, OP no.1 has been referred to as Party A, complainant is referred to as Party B and OP no.2 has been referred to as Party C. In case the complainant realized that, the OPs were not agreeing to provide the additional equipments or the service in eight more classrooms and they rather insisted upon the execution of additional agreement on different terms and conditions between the parties. The complainant had not opted for the same and rather the complainant terminated the agreement Ex.C-1 dated 19.03.2010, vide its letter dated 14.07.2011 Ex.C-2 addressed to OPs.

8.      The complainant unilaterally terminated the agreement Ex.C-1. The crux of the matter is, whether there is any deficiency in service on the part of OPs in not providing the above-referred services in the additional classrooms. The agreement Ex.C-1 has been considered by us. Clause 4.1 is relevant provision of the agreement. The gist of the clause 4.1 is that both the parties, if considered necessary, mutually to provide any additional equipment or service or to upgrade the equipment installed by Party B during the duration of the agreement, the same shall be supplied by Party C to Party B at the price, as agreed between both the parties. Clause 4.1 nowhere directs the OPs to provide the service immediately to complainant. Both parties have not considered it necessary nor it was mutually resolved by them to provide services and equipment for additional class rooms or to upgrade the equipment installed by Party B  during the course of agreement. Unless and until, condition of Clause 4.1 of the agreement are fulfilled, there is no question of enforcment of the claim of the complainant. OPs cannot be held to be liable responsible for providing any such services for the additional equipment or additional services for eight more classrooms on account of non-compliance of Clause 4.1 of the Agreement Ex.C-1. The OPs insisted upon execution of new agreement providing above service to additional more classes, as it was feasible only by execution of fresh agreement on the fresh rate between the parties. As case of the complainant dehors the purview of Clause 4.1 of the agreement Ex.C-1 and hence, we find no deficiency in service on the part of OP. The complainant rather unilaterally terminated the agreement Ex.C-1 and it is not  bounden obligation of the OPs to provide the services for additional eight classrooms, which is not covered under Clause 4.1 of the agreement Ex.C-1. The complainant has not filed this complaint that OPs are deficient in service with regard to providing the services regarding the Clause 4.1 as agreed upon the between the parties, as per agreement  Ex.C-1. The complainant seeks additional services from OPs for additional classes, which is beyond the purview of the terms and conditions of Clause 4.1 of the agreement Ex.C-1.

9.      Now, dispute between the parties on this point is, as to whether the demand of Rs.2,16,000/- is justified or complainant is to pay Rs.72,000/- only. The onus is on the complainant to prove that the demand of Rs.2,16,000/- raised by OPs is illegal and unauthorized. The District Forum has correctly observed that dispute between the parties is for settlement of account, which is triable by the civil court only. There is no dispute of deficiency in service or unfair trade practice on the part of OPs qua the above amount. The OPs have not violated the terms and conditions of the contract Ex.C-1 particularly Clause 4.1 in this case.

10.    As a result of our above discussion, we find no merit in the appeal and same is hereby dismissed by affirming the order of District Forum Patiala dated 22.09.2014 under challenge in this appeal.

11.    Arguments in this appeal were heard on 09.03.2017 and the order was reserved. Certified copies of the order be communicated to the parties as per rules.

12     The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                          PRESIDING JUDICIAL MEMBER

                    

                                                               (SURINDER PAL KAUR)

                                                                               MEMBER

 

                                                                                                         

March 10,  2017                                                                  

(ravi)