DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi-110016

Case No.266/2008

M/s HGS (India) Ltd.

Little Theatre Group Building

Copurnicus Marg, Mandi House

New Delhi

Through its Director

Sh. Anil Dass                                                                ….Complainant

Versus

1.      M/s Munjal e- Systems

          Hero Corporate Services Ltd.

          E-1, Qutab Hotel Complex

          Shaheed Jeet Singh Marg

          New Delhi-110016

2.      M/s All e  Technologis

          A-67, Sector-57,

          Noida -201301                                               ….Opposite Parties

                                                          Date of Institution: 23.04.08

                                                          Date of Order       : 21.08.17

Coram:

Sh. N.K. Goel, President

Ms. Naina Bakshi, Member

ORDER

The case of the complainant, in nutshell, is that the complainant is a company duly incorporated under the Companies Act, 1956 and is engaged in the business of manufacturing of equipments pertaining to extraction of oil from the earth/sea. The complainant had placed an order dated 20.09.2016 upon the OP No.1 for supply and manufacture of Navision MBS 4.0 of  M/s Microsoft Corporate (I) Pvt. Ltd. and an agreement was executed consisting the following terms:-

1. Modules to be supplied and installed
2. License Fee
3. User Training
4. After Go Live support & AMC
5. Commencement of Project
6.  Implementation schedule

It is stated that the complainant made huge payment of Rs.7,55,100/- to the OP No.1 for the first phase. The complainant had opted for the said system in order to run its business smoothly and to procure the raw material in advance in order to avoid the wastage of time and money and to  supply the ordered equipments in time to its customers. However, the OP No.1 failed to provide the complete system/training as per terms and conditions of the agreement.  The complainant vide its emails inter-alia dated 14.03.2007 pointed out all the discrepancies in the said system and requested the OP No.1 to do the needful as per the terms of the agreement.  It is stated that the OP No.1 failed to rectify the discrepancies and vide its email dated 03.10.2007 informed the complainant that now the OP No.2 will rectify all the discrepancies in the said system. It is submitted that thereafter  the complainant requested the OP No.2 to rectify all the discrepancies in the said system but the OP No.2 demanded extra charges of Rs.1,09,000/- for rectification of the discrepancy/supply and implementation of complete system as per terms of agreement.  It is stated that the complainant already made the payment of Rs.7,55,100/- to the OP No.1 and only a sum of Rs.50,000/- was due against  the complainant for  the first phase, which the complainant is ready and willing to pay provided the OPs should perform the terms and conditions of the agreement. The complainant sent a legal notice dated 23.02.08 to the OPs but the OPs did not respond. Hence, pleading deficiency in service and unfair trade practice on the part of the OPs, the complainant has filed the present complaint for the following reliefs:-

1. Direct the OPs to rectify all the discrepancies in the said system and its implementation and also to perform all the terms and conditions of the agreement dated 20.09.2006 or in the alternative to refund a sum of Rs.7,55,100/- to the complainant,
2. Direct the OPs to pay to the complainant a sum of Rs.10,00,000/- towards mental agony, harassment, inconvenience etc.
3. Direct the OPs to pay Rs.22,000/- to the complainant as cost of litigation.

OP No.1 in the written statement has inter-alia stated that the complainant does not come under the definition of “consumer” as defined in the Consumer Protection Act, 1986; that the complaint has been filed by an unauthorized person; that the complainant made the payment of Rs.6,78,830/- to the OP No.1 after deduction of tax; that the OP No.1 had provided the systems/training as per terms and conditions of the agreement and the delay as alleged by the complainant was due to change in target dates by the complainant himself as evident from an email dated 14.10.06 and, therefore, the alleged discrepancies in the system are on the part of the complainant and not due to the OP No.1. It is denied that the OP No.1 failed to rectify the discrepancies and vide email dated 03.10.2007 informed the complainant that now OP No.2 will rectify all the discrepancies in the said systems.  It is submitted that w.e.f. 1^st October, 2007 OP No.2 became a Strategic Business Alliance of OP No.1 and the same was intimated to the complainant vide email dated 03.10.07. It is further submitted that  from the said date, OP No.2 has an obligation to complete the project of on-going customers as well as projects of the future customers and after the said date the OP No.1 was not liable for any dealing with any client/customer as well as complainant and the complainant was informed as is evident from the correspondence exchanged between the complainant and OP No.2 vide emails dated 05.10.07, 23.10.07, 07.11.07 & 23.11.07. It is denied the complainant has already made the payment of Rs.7,55,100/- to the OP No.1 and only a sum of Rs.50,000/- is due against the complainant for the first phase.   It is submitted that there is no discrepancies on the part of OP No.1 as it has performed the project as per the terms and conditions of the agreement dated 20.09.2006 and after the business alliance with the OP No.2 i.e. on 01.10.07 it is the matter of the complainant and OP No.2. It is submitted that the complainant has not suffered any mental agony, harassment etc. and, on the other hand, it is the OP No.1 who has to suffer due to the revised program, change in projects and incorporation of the team of the complainant and hence the complainant has no right in law to get any compensation or damages. Other averments made in the complaint have been denied. OP No.1 has prayed for dismissal of the complaint.

In the written statement OP No.2 has inter-alia stated that the complainant is not a “consumer” and hence the complaint merits dismissal. It is stated that an order was placed on 20.09.06 on OP No.1 for supply and implementation of Navision BS 4.0 of M/s Microsoft Corporate (I) Pvt. Ltd. It is denied that the OP No.1 failed to provide the complete system/ training as per terms and conditions of the agreement. It is submitted that the complainant has to pay a sum of Rs.1,09,000/-.  The complainant has still not paid a sum of Rs.50,000/- which is admitted by the complainant.  Other averments made in the complaint have been denied.  It is prayed that the complaint be dismissed.

     Thereafter, OP No.2 has been proceeded exparte.

Complainant has not filed rejoinder to the written statements of OP No.1 & 2.

Affidavit of Sh. Anil Dass, Director of the complainant Co. has been filed in evidence. On the other hand, affidavit of Sh. Manoj Bharija, Company Secretary-cum- DGM (legal) has been filed in evidence on behalf of the OP No.1.

Written arguments have been filed on behalf of the Complainant and OP No.1.

We have heard the arguments on behalf of the Complainant and OP No.1 and have also gone through the file very carefully.

As is seen in number of cases parties give Exhibit Nos. to their respective documents in the affidavits but do not mark the Exhibit Nos. on the corresponding documents which besides causing undue hardship also results in wastage of precious working time of this Forum. This has also happened in the present case. The complainant has marked the documents as Ex. C1 (Colly) to Ex. C3 (Colly) and the OP No.1 has marked its documents as Ex. RW1/1 in their respective affidavits but neither of them has marked the Exhibit Nos. on their respective documents.  Therefore, we have spent valuable judicial time in laying our hands to the documents of the parties.

           The main grievance of the complainant is that all the discrepancies in the system had been pointed by the complainant to OP No.1 vide email dated 14.03.07. The copy of the said email has been placed at page 32 which we mark as Mark A for the purposes of identification. The relevant portion of the same is reproduced as hereunder:-

“… I am contacting you to express my concern at the delays that have crept in regarding implementation of Phase 1 of the ERP packages HGSI has purchased. Without going into who has caused the delays, I currently find that we have got bogged down on the aspect of training. We understand that the team assigned to this project has undergone major changes and currently stands at one individual who cannot cope with the work.

I request that an emergency timebound program be finalised and due resources from HCSL (MS) be provided to complete training and go live.”

Thus, it would be seen that no specific discrepancy/defect in the system in question has been pointed in the said email message.  In the written arguments filed on behalf of the complainant reliance has been placed on the email dated 17.04.07 [(page 33) (Mark AA)] and email dated 05.10.07 (page 35 & 36). We mark the said document dated 05.10.07 as Mark B for the purposes of identification. Relevant portion of document Mark AA reads as under:-

“… Present:

Mr. A. Dass                                                         Mr. S. K. Jha

Mr. Samir Gugnani                                   Mr. Ambarish Patnaik

Mr. Vashista                                              Mr. Shashidhar

Mr. Roy

Agenda

1. User Rights Finalization.
2. Opening balances
3. BOM finalization.
4. Terms & Conditions for sales and purchase needs to be finalized.
5. Appointment of coordinator from HGS side in absence of Mrs. Pooja Chhabra
6. VPN connectively issue.
7. Revised ‘Go Live’ date finalization.

Resolved:

1. Mr. Gugani has been given responsibility to finalize User rights & authorization by 16/04/07.
2. Mr. Vashista has been given responsibility to make available opening balances by 16/04/07.
3. BOMs shall be finalized by 18/04/07.
4. Terms & conditions shall be finalized by HGS by 16/04/07.
5. Coordinator shall be appointed by HGS shortly.
6. MeS shall suggest the name of the vendors for VPN connectivity.
7. Revised ‘G-Live’ date has been fixed for 23^rd April 2007.”

Vide email dated 05.10.07 the meeting was suggested at 11.00 a.m. on 08.10.07 at Gurgaon Factory.  Here again no specific discrepancy/defect in the system in question was pointed out.  Reliance has also been placed on an email dated 08.10.07 (page 61 & 62) which we mark as Mark C for the purposes of identification. The relevant portion of the same reads as under:-

          “ Ref. our discussions at our factory today, below are the pending issues concerned with different modules:-

Sales & Marketing- Not yet live

1.      In Order Processing, Order Acknowledgement report is

not complete.

2.      Before posting shipment, the structure is calculating net weight and gross  weight in INR.

3.      At the time of posting every shipment (if it is foreign or domestic), system is asking for T.C.A.N. No. at location code for TCS calculation while TCS should not be calculated for every invoice.

4.      Structure is not automatically refreshed in the invoice (after getting shipment lines) evenif it was defined/posted in the shipment.

5.      Posting  shipment form needs to be changed for some fields.

6.      Problem in posting TCS structure invoices (for scrap invoicing). While posting,  error comes like TCS is not setup in the system while it is setup in financial TCS setup.

7.      Invoicing related reports are not complete.

8.      As we are EOU, we had given a requirement of some more reports during FRD which have not been made.  

Purchase & Warehouse- Live (reporting issues)

1.      Daily Receipt Register (report) is to be correct (data is not flowing correctly in all fields)

2.      Purchase Order wise Item Received report was require, but not been given.

3.     

4.      Direct Purchase Report is to be completed.. (data is not flowing correctly in all fields

5.      Stock Journal Report was required, but not been given.

6.      Vendorwise & Itemwise periodic purchase report was required, but not been given.

7.      No jobwork related report is given to us.

8.      In jobwork process, we are unable to reverse G/L entry.

9.  N Challan & RGP series need to be activated.

Financial management- Live (reporting issues)

1.      Purchase invoicing is not yet live. Some excise duty related problem is coming.

    Above are the issues, we are facing in our ERP.

Please let us know what your plans & timeframe to close the project live ASAP.”

Therefore, it would be seen that no specific discrepancy/defect in the system in question has been pointed out by the complainant which could be rectified /removed by the OP No.1 or by OP No.2 or by both.  Problem/s seemed to occur with regard to the installation of the system itself.

Now according to the complainant admission regarding deficiency in service has been admitted by OP No.1 in en email dated 23.11.07 paced at page 58.  We mark page 58 as Mark D. The same is a copy of email dated 07.11.07 and 31.10.07 and not a copy of email dated 23.11.07.  Therefore, we hold that the complainant has failed to prove any deficiency in service on the part of the OPs.

In view of the above discussion, we do not want to decide the point whether the complainant is a ‘consumer’ or not as defined in the Consumer Protection Act. It is for the first time that in the written arguments the OP No.1 has pointed out that the complainant had purchased the system in question for commercial purpose. It is a legal point and can be raised at the time of final arguments.  But since we have already held that the complainant has failed to prove any deficiency in service on the part of the OPs we leave this question undecided. 

In view of the above discussion, we do not find any merit in the complaint and dismiss it with no order as to costs.

Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations.  Thereafter file be consigned to record room.

Announced on 21.08.17.