Tamil Nadu

StateCommission

A/93/2017

M/s. ADS Softex Pvt Ltd., Rep by its Managing Director & 2 ors - Complainant(s)

Versus

M/s. Veltech Dr. RR & Dr. SR Technical University, Rep by its Registrar - Opp.Party(s)

DMH Partners

05 Jan 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

                       BEFORE   Hon’ble THIRU. JUSTICE. R. SUBBIAH                  ::      PRESIDENT                       

                                         Tmt.Dr.S.M.LATHA MAHESWARI                            ::      MEMBER

 

FA. No. 93/2017

  (Against the order in C.C. No.7/2015, dated 19.12.2016 on the file of the DCDRC, Thiuvallur-1)

                                                    WEDNESDAY, THE 5^th   DAY OF JANUARY 2022

 

M/s ADS Softek Pvt.Ltd,

Rep.by its Managing Director,

H.No. 2A, Shiva Sadan,

D.No.2-7, 44, SRK Colony,

West Maredpally,

Secunderabad – 500 026   

 

2. Mr.Prasad V.Sivalenka,

Managing Director,

M/s ADS Softek Pvt Ltd,

H.No. 2A, Shiva Sadan,

D.No.2-7-44, SRK colony,

West Maredpally,

Secunderabad – 500 026  

 

3. Mr.M.S.Manian,

Director,

M/s ADS Softek Pvt Ltd,

H.No. 2A, Shiva Sadan,

D.No.2-7-44, SRK colony,

West Maredpally,

Secunderabad – 500 026                         ..Appellants/1^st, 2^nd and 3^rd opposite parties

 

                                                  Vs

 

M/s Veltech Dr.RR & Dr.SR Technical University,

Represented by its Registrar,

Dr.E.Kannan,

No.42, Avadi-Veltech Road,

Avadi, Chennai – 600 062                        ..Respondent/complainant 

 

Counsel for Appellants/1^st, 2^nd and 3^rd opposite parties         : M/s DMH Partners

 Respondent/complainant                                                  : served called absent

 

 

This appeal coming before us for final hearing on 22.12.2021 and on hearing the arguments of the appellant and on perusing the material records, this commission made the following:-

                                         ORDER

Tmt.Dr.S.M.LATHA MAHESWARI   

          This appeal has been filed by the appellants/opposite parties under section 15  of the Consumer Protection Act 1986 against the order of the District Consumer Disputes Redressal Commission, Thiruvallur which partly allowed the complaint with cost and directed the opposite parties to refund a sum of  Rs.7,00,000/- along with cost of Rs.10,000/-.

 

The Brief facts which are necessary to decide the appeal is as follows :-

 

1.     The complaint was filed alleging deficiency in service on the part of the opposite parties with a direction to return the amount of Rs.7 lakhs with 24% interest along with  a compensation of Rs.3 lakhs and a  cost of Rs.10,000/-.

2.       It is submitted by the complainant that they were reputed Educational Institutions recognised as  VELTECH Dr.RR AND SR TECHNICAL UNIVERSITY situated  in Avadi and that they are running various Educational Institutions including Engineering colleges, Management and Science, Nursing colleges, Polytechnic and Schools etc.,.  The opposite parties approached the complainant for providing academic programmes to the students of the complainant’s Institutions.  The opposite parties claimed that they have tie-up with Information Technology industry leaders such as Microsoft, Cisco, Infosys, TCS, Wipro, Cognizant, Cap Gemini, IBM etc,. The opposite parties further claimed to have come up with various academic programmes to help the students particularly Engineering college students and they offered to provide Microsoft Innovation Alliance (MIA)  Program in the complainant’s institution.  The opposite parties wanted the complainant to create an innovation platform for the said purpose in the complainant’s premises and that the innovation platform should possess area about  3000 to 3500 sq.ft with two different project labs, conference room and training room etc. The complainant also created the innovation platform as per the requirement of the opposite parties in order to facilitate them to commence the MIA programme in the Institution. The opposite parties agreed to ensure certification to students who participate in the programme. The opposite parties agreed for Rs.9,36,000/- as consideration for their services. Thus the opposite parties agreed to provide service from creation of innovation platform,  awareness programme, evaluation/overseeing, certification and atlast introducing the students to various industries. A proposal was received by  the complainant by email dated 8.12.2010 and the complainant paid a sum of Rs. 8,42,400/- on 15.3.2012 and Rs.93,600/- on 19.3.2012 totalling a sum of Rs.9,36,000/-.  The course training was agreed to be conducted for 8 to 10 weeks with training period of 120 hours. The opposite parties  conducted 3 seminars/Awareness programmes on 12.10.2011, 17.2.2012, and on 5.7.2012. The 2^nd opposite party participated in the 1^st Awareness Programme and the 3^rd awareness programme.

4.       Though the complainant wanted the opposite parties to enter into a memorandum of understanding, the opposite parties dragged the execution of the MOU. Thus due to the inordinate delay on the part of the opposite parties, the students who got them enrolled for the training  had lost interest and started to withdraw the enrolment for the training programme. To conclude the opposite parties miserably failed in executing the MOU and had also not made Microsoft to execute the agreement with the complainant as promised by them earlier.

5.       In view of the same, the complainant had decided to cancel the launching of training programme and wanted the opposite parties to return the amount paid by them. Thus the complainant alleging deficiency in service on the part of the opposite parties sought for refund of the amount paid by them amounting to Rs.7,00,000/- along with compensation of Rs. 3 lakhs with 24% interest p.a.   

6.       The opposite parties filed version stating that they were established persons in conducting training programmes for the students of various Technical Institutions. They admitted that the complainant had issued a purchase order dated 22.7.2011  for the training  programme and the initial charges of the consultation amounts to Rs. 15 lakhs, exclusive of course charges for the students at Rs.3000/- per head. The opposite parties had stated that they were very much interested in commencing the programmes as proposed and accordingly conducted 3 awareness programmes on 12.10.2011, 17.2.2012, and on 5.7.2012. The opposite parties denied the allegations that they were dragging the execution of the contract/MOU.  Further they contended that though they were ready to continue the programme, there was total silence on the part of the complainant after October 2012 and there was no communication from the complainant except the issuance of  legal notice, demanding Rs.10,00,000/-  (Rs.7,00,000/- paid to the opposite parties  and Rs.3,00,000/-  as compensation).

7.       The complainant filed proof affidavit and documents Ex.A.1 to A.12 were marked on their part, the opposite parties filed their proof affidavit and documents Ex.B.1 to B.8 were marked on their side.

8.       The District Commission after perusing the pleadings and documents filed by both the parties, partly allowed the complaint holding that the opposite parties had committed deficiency in service and also ordered them to return a sum of Rs.7 lakhs within one month along with the cost of Rs.10,000/-.  Aggrieved by the said order, the opposite parties have preferred the present appeal.

Point for consideration :-

Whether there is any deficiency in service on the part of the opposite parties and if so,

 to what relief the complainant is entitled?

Point :

9.       Heard the counsel for the Appellant and perused the written arguments filed on their behalf. The complainant/Respondent did not turn up inspite of sufficient notice. The learned counsel for the appellant argued that the complaint is not maintainable as the services availed was for commercial purpose and contractual obligations are involved.  It is submitted that they were engaged in imparting training through academic programmes to various educational institutions and for the purpose of training the students of the complainant’s Institutions an MOU was intended to be executed  between both the parties. He further submitted that an initial fee of Rs. 15 lakhs per year was proposed by them towards consultation charges alone which does not cover the course fee of the students. But only on the request made by the complainant the amount was reduced to Rs.9,36,000/- (Rs. 9,00,000/-  towards consultation charges and Rs.36,000/- amounts to 4% tax). Therefore his main contention was that the amount received by them from the complainant was not towards the training fee but only towards the consultation charges which could not be refunded at any cost. He further submitted that for the consultation charges received, they have conducted 3 awareness programmes in the complainant’s premises and hence the complainant has no authority to ask for refund of the said amount as the appellants had already acted upon consequent to the consultation fee received by them.

11.     The point as to maintainability of the complaint was  alleged by the appellant that the complainant is not a consumer and the transaction is a commercial transaction. With regard to the same we like to reiterate that the term "commercial purpose" have not been defined under the Consumer Protection Act or under the Rules framed therein. Therefore, interpretation of the word “commercial purpose ” has to be made according to facts and circumstances of each case.  In Synco Textile Private Ltd Vs Greaves Cotton and Co Ltd (1991) 1 CPJ, the Court while emphasizing on the word "commercial purpose" laid down that "for any commercial purpose are wide enough to take in all cases where goods are purchased for being used in any activity directly intended to generate profit".  Thus Synco Textile's case implicates that "commercial purpose" should be distinguished from commercial organization or commercial activity. Also while dealing with the ambit and the scope of the term "Commercial Purpose " the Hon'ble Apex Court in Lakshmi Engineering works Vs PSG Industries, AIR 1995 SC 1428, has laid down "what is a commercial purpose" is a  question of fact to be decided in the facts of each case. In Super Computer Centre V. Globiz Investment Pvt. Ltd. III (2006) CPJ 265 (NC) where the complainant, a company, had purchased computer system along with related accessories from the opposite party filed a complaint alleging that machine which was supplied with the computer, was not giving performance up to the mark and the same was defective, the opposite party contended that the complainant was not a consumer as the computer and the machine were purchased by the company for business purpose i.e. for commercial purpose. But the same was negatived. Thus it has been established by the Apex court and NCDRC that the persons who purchase goods or services only with a view to make profit, will fall outside the scope of the definition of "consumer". But in the present case the services availed by the complainant was only to impart training to their students through the appellant/opposite parties and there was nothing to make profit out of the same. Even if it is such a case, the appellant opposite parties had not pleaded and proved that the complainant by availing their services is making huge profit out of the same. Even in various decisions rendered by the Apex court & NCDRC, it has been held that ‘Education’ falls outside the purview of definition of commodity. In such circumstances we are unable to accept the contention of appellants that the complainant is not a consumer and that the complaint is not maintainable.

12.     On perusing the records and on hearing the arguments of the learned counsel for appellant we could see that though it is alleged that the MOU i.e Ex.B.1 was sent through email dated 8.12.2010, it could be seen that the email does not reflect a format of MOU but it has only a brief description about the training programme. Further when it is admitted by both the parties that the MOU was not signed between them the argument raised by the appellant that the issue involves contractual obligation and therefore the consumer Commission has no authority to decide the same is also to be brushed aside. We could also see that nothing was produced by the opposite parties to prove their contentions that the amount paid by the complainant amounting to Rs. 9,36,000/- was only towards consultation charges. No proof was also submitted by the opposite parities that the entire amount was utilised for the 3 awareness programmes conducted in the complainant’s premises. In such circumstances we are unable to accept the submission putforth by the appellant that the entire amount of Rs. 9,36,000/- was paid only towards consultation charges. It is amply proved that though the amount was received by the opposite parties no MOU was entered between the parties and no training was also provided by the opposite parties to the students of the complainant. Things being so, the findings of the District Commission that the complainant was entitled to refund of Rs. 7 lakhs after the deduction of Rs. 2,36,000/- spent for the expenses of conducting the 3 awareness and innovative programmes by the opposite parties in the complainant premises is justified.

13.     Thus we hold that though the opposite parties approached the complainant during December 2010 and sent the MOU, both parties did not sign the same and in such circumstances when the appellants had not proved that they received Rs.9,36,000/- only towards the consultation charges, the complainant is entitled for the amount of Rs.7 lakhs after the deduction of Rs.2,36,000/-, the expenses made towards conducting the 3 innovative programmers by the opposite parties. We could not see any material to interfere with the findings of the District Commission. Thus point No.1 and 2 is answered in favour of complainant and we hold that the opposite parties had committed deficiency in not rendering the service of imparting training to the complainant’s Institution  inspite of receiving money from them.  The complainant is thus entitled to the relief of refund of Rs.7 lakhs from the opposite parties.  The order of the District Commission is hereby confirmed.

          In the result, the appeal is dismissed. Considering the facts and circumstances of the case there is no order as to cost in this appeal. 

 sd/-                                                                                                                   sd/-

S.M.LATHA MAHESWARI                                                                         R. SUBBIAH             

          MEMBER                                                                                              PRESIDENT