Order-18.
Date-18/10/2016.
This is an application u/s.12 of the C.P. Act, 1986.
The instant case relates to an application alleging deficiency of services and unfair trade practice.
The Complainant’s case in short is that complaint is a school duly affiliated to the ICSC Board of Delhi and is represented by its Principal and Joint Secretary namely Sr. ManisaRobutof 120/6 N. Dev Banerjee Road, Picnic Garden, PS. Tiljala, Kolkata-700 039. The OP No. 1 is a Company engaged substantially in business in providing Smart Class Rooms learning basing on digital technology inclusive of but not limited, supplying computer hardware, digitalized content of curriculum for the syllabus of various classes with Animation, Adios, Videos, Graphics and pictures for the purpose of digital learning by the students. The OP No. 2 is also a Company registered under the Companies Act represented by its Director, Mr. PromodThatoi, who has entered into an agreement with OP No. 1, to implement the establishment of smart class rooms, installation of computer hardware and digital repository of the contents of syllabus on behalf of OP No. 1 as its assignee in the school premises of the Complainant. The parties as mentionedi.e, Complainant and the OPs initially entered into a tripartite agreement among them at Kolkata on 19.09.2010 to which it was agreed upon among the parties that on behalf of the OP No. 1, OP No. 2 will install computer hardware and make available the digital content of repository of syllabus pertaining tothe classes of the school and keep the hardware up to date with proper maintenance and update the digital content of the smart classes in the school premises of the Complainant. Apart from that the OP No. 1 was to appoint a full time resource coordinator in the premises of the school at Itsexpenses, to oversee the entire programme and keep it workablewith necessary maintenance or replacement of the hardware at all times for the benefit of the students of the said School who avail this facilities. The period of the first agreement was for 60 months initially from the time of the completion of the installation of the first agreement. For this purpose the Complainant has paid a total sum of Rs.3,06,000/- to OP No. 2 as a contained in the agreement for the price of hardware, digital repository and support services. The Complainant has also furnished the details of the transaction in para-8 of the petition of the Complainant. The OP No. 2 failed in complying with the vital part of agreement dated 29.09.2010 as the resource persons appointed by the OP No. 2made a nominalappearance just once or twice a week, that too, from July,2011 to December, 2011. The Complainant has initially invested a good amount of money to the tune of Rs.3,06,000/-, which the Complainant collected from the students or from parents, who are hailing from lower middle class, economically weaker section of the society. It is alleged that even the repository / the digital content of the syllabus was not up dated as per the requirements of the terms and conditions contained in the said agreement dated 29.09.2010. The Complainant made several attempts over phone to connect the OPs, but the OP did not give any suitable response. It is also alleged that the classes dedicated for smart classes were installed with faulty, mal functioning hardwares in the form of projectors,Digital Boards, Computers, whose CPUs functioned erratically .The Complainant also served a letter dated 19.04.2013 upon the OPs but to no good. The Complainant has alleged gross negligence and deficiency of service and unfair trade practice, as such, against the OPs. The Complainant also served a legal notice to the OPs, but the OPs neither replied nor taken any action as required in the aforesaid notice. Hence, this case.
The OPs have entered into appearance and contested the case in filing written version containing inter alia with the present complaint is not maintainable either in fact or in law. It is also stated that the tripartite agreement contains an arbitration clause and as such the proceeding is barred under section 8(1) of the arbitration and Conciliation Act 1996. It is also stated that the Complainant is running a school business to earn profit from the fees of the students and as such the Complainant isearning profit by running school business. It is stated that the Complainant and the OPs had entered into atripartite agreement to transform class rooms into smart classes. As per tripartite agreement, the OP No.2 will appoint trained and deploy one full time smart class coordinator, is required and at the option of the Complainant, for the smart class program and one full time coordinator was also deployed. It is stated that the consideration amount of the first agreement was of Rs.8,10,000/- and the Complainant has paid only Rs.2,70,000/-. The consideration amount as per second agreement was Rs.4,15,564/- and the Complainant has paid only Rs. 36,000/-. It is also stated that after being satisfied with the one installation of one smart class, the Complainant has issued letter of satisfactory dated 30.03.2011 and thereafter instructed the OPs to set up 4 other smart classes. Thus, an agreement dated 24.10.2011 was entered upon. Thus, it shows that there was no deficiency in service on the part of the OPs. It is stated that the Complainant has also defaulted in making the payment of both the agreements. These OPs have prayed for dismissal of the case.
Point for Decision
- Whether, the OPs are deficient in rendering services to the Complainant-School?
- Whether the Complainant is entitled to get relief as prayed for?
Decision with Reasons
We have perused the document on record, namely, the photocopy of agreement for smart class program dated 29.09.2010, photocopy of letters/correspondences between the parties on different dates, legal notices and agreement dated 24.10.2011, payment schedules and other documents on record. It appears that OP No. 1 is a Company duly incorporated and registered under the Companies Act,1956. OP No. 2 is the sister concern of OP No.1. It appears that the Complainant and the OPs have entered into a tripartite agreement to transform class rooms into smart classes. As per the tripartite agreement the OP No. 1 will appoint trained and deploy one full time smart class coordinator, if required at the option of the Complainant for the smart class programmeapart from other various tasks. The said agreement was for a period of five years. As per the said agreement, one full time coordinator was also deployed. We find that there was two tripartite agreements. the first being dated 29.09.2010 and the second being dated 24.10.2011. As per the first agreement dated 29.09.2010 the OPs to install one computer along with other accessories, digital repository of syllabus as applicable to the respective classes, required for one smart class and after being satisfied with the performance of the one smart class, the second agreement dated 24.10.2011 was entered upon for installation and set up of 4 other smart classes. The first agreement was for a period of 6 months i.e. 5 years and the second agreement was also for a period of 5 years. It appears that the Complainant is a school, and after being satisfied with the installation and performance ofone smart class, the Complainant has issued a letter of satisfactory dated 30.03.2001 to the OP No. 1. From the materials on record we find that in such letters, Complainant-school has stated that the OP has successfully completed the installation of smart class for one no. of class rooms along with knowledge center which is working satisfactorily with the equipments in the school on 30.03.2011. It also appears that after being satisfied with one installation of smart class, the Complainant has issued letter of satisfactory dated 30.03.2011 and thereafter, as instructed the OPs to set up 4 other smart class. Thus we find that the second agreement dated 24.10.2011 was entered upon. It also appears that the Complainant did not revoke the second agreement and it can not be said that it was enforced upon unilaterally on the Complainant. We also find that on the contrary the Complainant school allowed the smart classes to be set up by letter dated 17.12.2012. The principal of the Complainant-school also issued letter showing that the installation of 4 nos. smart classes were completed satisfactorily. We have perused the letter of satisfaction dated 30.03.2011 and 17.11.2012 on record. We find that the Complainant-school was satisfied with the work of the OPs forequipments for smart school and has issued a letter of satisfaction dated 30.03.2011 and also further issued a letter of satisfaction dated 17.11.2012 .Thus it shows that there was no deficiency in service on the part of the OPs. We also find that consideration amount of the first agreement was of Rs. 8,10,000/- to be paid in instalments as specified in the said agreement and the Complainant has paid only R s.2,70,000/- against total dues of Rs.9.66,586/- ( which accrued due to late payment charges). We also find that the consideration amount as per the second agreement was Rs.4.15.564/- to be paid in installments as per the agreement and the Complainant has paid only Rs.36,000//- against the total dues of Rs.5,86,254 ( which accrued due the late payment of charges) we find that the Complainant equally defaulted in making payment of the both agreement. It is clear from the letter issued by the Complainant n 30.03.2011 and 17.11.2012 that installation of the smart classes was done satisfactorily and we also see that the teachers were also trained. It also appears that the Complainant-school has defaulted in making the payment even after time lapse of the 4 year of the first agreement and 3 years of the second agreement. We are, as such, constrained to hold that there was no deficiency of service and as such there can not be any basis of the grievances as ventilated by the Complainant school. We do not think that there was deficiency in service and unfair trade practice from the side of the OP as such. We think that the Complainant school has not come in clean hand before us and the complaint petition is not sustainable and liable to be rejected.
In result, the instant case fails.
Hence,
Ordered
That the instant case be and the same is dismissed on contest against the OP.
No order as to cost.
