COMPLAINT FILED: 29.01.2008<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> 10th SEPTEMBER 2008<br /> <br /> PRESENT :- SRI. A.M. BENNUR PRESIDENT<br /> SRI. SYED USMAN RAZVI MEMBER <br /> SMT. M. YASHODHAMMA MEMBER <br /> <br /> <br /> COMPLAINT NO. 259/2008<br /> <br /> <br /> COMPLAINANT M/s. Amber Valley Residential School,<br /> No. 2, Raheja Chambers,<br /> 1 Museum Road,<br /> Bangalore – 560 001.<br /> Represented by its <br /> authorized signatory.<br /> <br /> <br /> Advocate (Shreyas Jayasimha)<br /> <br /> <br /> V/s.<br /> <br /> <br /> OPPOSITE PARTY M/s. Pacsoft Solutions Ltd.,<br /> 12th Floor, DU Parc Trinity,<br /> No. 17, M.G. Road,<br /> Bangalore – 560 001.<br /> Represented by its<br /> authorized signatory.<br /> <br /> <br /> Advocate (K.V. Omprakash)<br /> <br /> <br /> O R D E R<br /> <br /> This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant to direct the Opposite Party (herein after called as O.P) to rectify the defects in the software modules already implemented, complete implementation of the product and pay a sum of Rs.25,000/- with interest on an allegations of deficiency in service. <br /> <br /> The brief averments, as could be seen from the contents of the complaint, are as under:<br /> The case of the complainant that he entered into an agreement dated 27.04.2004 on the proposal of OP for the purchase of licenses of Lyceum Software for lyceum services. An order for purchase was placed for the software as per the letter dated 27.04.2004 for an amount of Rs.8,00,000/-. The case of the complainant is that OP failed to perform its part of obligation under the agreement dated 27.04.2004 and was deficient in rendering services pertaining to Lyceum Software. Many modules of the products were not implemented and there were defects in modules that have already been implemented. The agreement was for a period of one year and that as per the clause 1.4 of the agreement OP was required to impart training to the staff of the complainant about the whole product for a period of 15 days. The OP failed to provide the training. Further the support staff required to be stationed at the school campus of the complainant as per clause 1.5 of the agreement were also deficient in rendering the requisite services. OP failed to develop the knowledge management module to the requirements of the complainant. Despite several reminders OP failed to provide the system administration password, failed to rectify the defects in the modules and complete implementation of the product, grossly violating the terms of the agreement. OP has also failed to inform the complainant in writing about the delay in implementation of the product and also failed to pay the sum of Rs.25,000/- being the monetary compensation for delay in implementation and therefore prayed for direction to the OP to rectify the defects in the software modules already implemented and complete implementation of the product and pay a sum of Rs.25,000/- with interest from 15.12.2007 or in the alternative to refund a sum of Rs.8,00,000/- along with the interest. <br /> <br /> 2. The OP in their version has stated that they are the service providers for all educational institutions in India. The respondent company namely pacsoft was incorporated in the year 1996 and has a decade of domain knowledge in the field. They also stated that the product namely Lyceum Software developed by the OP is an advanced ERP system, which is web enabled and is described as modular software consisting of 12 packages designed to automate one or more areas of an educational institutions work and thereby render efficiency Lyceum is intended to utilize technology in the existing education system which allows the educational institutions to educate the students by web enabled media and allow the children and parents interaction through this media. The school with the help of Lyceum can provide academic window with sections on information, knowledge, entertainment, e-commerce to the student community. OP states that the licenses of Lyceum Software has been provided and installed in almost all big schools in Karnataka and is already functioning 800 ICSE institutions network as its clients. 90 big schools have purchased the Lyceum and have benefited with their advantage. <br /> <br /> 3. The OP admits that they enter into agreement with the complainant for the purchase of licences of Lyceum Software and Lyceum services had an agreement of Rs.8,00,000/-. The OP states that a proposal to the complainant for customization of Lyseum Software and based on the proposal the software was installed in the complainant school at Chickmagalur and the support team addressed all the initial technical issues relating to installation and customization. The OP also provided with a resident support specialist in the school campus of the complainant. Complainant has so far made a payment of only Rs.6,00,000/- and still a sum of Rs.2,00,000/- is due from them. Complainant have availed the services from April 2004 till date. The OP also submit that the complainant did not extend their full cooperation in the installation process, customization process and are not prepared to adhere to the requirement to the Lyceum Software. The complainant on every occasion would demand for new requirement, modification, changes and demand addtonal feature which was not part of the proposal for the customization of Lyceum. The OP submit that inspite of demands the OP have carried out necessary changes and modifications keeping in view the spirit of business ethics and welfare to the students and parents. Further no person from the complainant school is prepared to take responsibility and acknowledge the changes and amendments carried out by the OP. <br /> <br /> 4. In the actions of such authentication and acceptance the OP has to repeat the process time and again and the OP have incurred the heavy loss for the process and have not been compensated for the same. That they have given training to the complainant school which is required for understanding and operating Lyseum Software all modules have developed as agreed without delay on several occasions. They further submit that they are willing to address and rectify all the issues/problems faced by the complainant even today. The OP visited the complainant school at Chickmagalur and initiated sorting of problems faced by the complainant. A detailed term of settlement and status report as on 14th March 2008 was sent to the complainant and the Counsel of the complainant. The same was produced before the Hon’ble Forum. The OP has so far not got any feedback on the same. The OP also submits that still the amount due has not been paid to them and submits that the complainant has ulterior motive in not paying the balance and thereby trying to showcase problems in the Lyceum Software and therefore prays for the dismissal of the complaint and for direction to pay the balance sum of Rs.2,00,000/- with interest and also direct the complainant to co-operatie with the OP to carry out the clarification and rectification of the Lyceum Software. The complaint is devoid of merits. There is no deficiency in service on the part of the OP. Among these grounds, OP prayed for dismissal of complaint.<br /> <br /> 5. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced some documents. OP has also filed the affidavit evidence and produced some documents. Then the arguments were heard.<br /> <br /> 6. In view of the above said facts, the points now that arise for our consideration in this complaint are as under:<br /> <br /> Point No. 1 :- Whether the complainant has proved <br /> the deficiency in service on the part of the OP?<br /> <br /> Point No. 2 :- If so, whether the complainant is <br /> entitled for the reliefs now claimed?<br /> <br /> Point No. 3 :- To what Order?<br /> <br /> 7. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:<br /> <br /> Point No.1:- In Negative<br /> Point No.2:- Negative<br /> Point No.3:- As per final Order.<br /> <br /> <br /> R E A S O N S<br /> <br /> 8. At the outset it is not in dispute that the complainant and OP have entered into an agreement in respect of supplying and installing the software Lyceum which has been described in the website of the OP as modular software consisting of 12 packages designed to automate one or more areas of institutions and thereby render efficiency. In order to keep good relationship OP evenafter receiving the summons in the above complainant instead of contesting, promptly initiated steps for settling the matter amicably. Pursuant to this step after a meeting arrived at settlement and visited the complainant school at Chickmagalur, as detailed term of settlement and status report dated 14.03.2008 was sent to the complainant and the Counsel of the complainant by E-mail. <br /> <br /> 9. The OP has stated that so far the complainant has not responded and he is waiting for the complainant’s feedback and he is interested to take steps. The OP has taken all the steps and complainant has not extended co-operation. In the status report dated 14.03.2008 furnished by OP details have been furnished regarding description of problems action taken and current status in respect of equipments at complainant’s school. In the additional affidavit the complainant says that the Lyceum Software stopped functioning from 01.04.2008 causing severe hardship and inconvenience to the complainant. Due to the failure of the software the complainant cannot save additional data or information and cannot have access to previous data in the system. Therefore OP is deficient in service. <br /> <br /> 10. Here it is to be stated that as per Annexure 1 E-mail dated 22.04.2008 sent to the OP that the licence for Lyceum Software was has expired on 31.03.2008 and hence they cannot open the Lyceum data, etc. The E-mail dated 22.04.2008 is after the filing of the affidavit by the complainant on 16.04.2008. After this E-mail additional affidavit is filed on 28.04.2008. The complaint has been filed on 29.01.2008. From this it is seen that complainant is making an attempt to establish a case against the OP. The complainant have to restrict the contention in the affidavit only to the pleadings in the complainant and not the subsequent development. Complainant aver that agreement is for a period of one year from 27.04.2004 as per clause 6 of the agreement. <br /> <br /> 11. They further state that in view of the E-mail dated 19.11.2007 document No.3 it is clear that both the parties intended to keep the agreement alive and infact to continue to be bound by terms even today. From this it is clear that the complainant is making an attempt to prove their case that it is within time. The agreement dated 27.04.2004 is agreed to be valid for one year and that they have not approached the OP as per the agreement. As per clause 1.4 of the agreement OP shall impart training to the complainant staff abut the whole product for a period of 15 days. OP “pact soft” shall give the details of the same. Any training requirement for any Amber Valley Personnel in future would be charged as per the rate prevailing at that time. <br /> <br /> 12. From this clause it is clear that future service is not binding on the OP it is at the OP’s will and wish, still OP approached the complainant to solve their problem. Complainant’s have not controverted to the proposal of the OP to do the service nor they have disputed to the OP offer of doing service. Complainants have relied on clause 2.3 of the agreement that the OP have to give the monetary compensation of Rs.25,000/- to the complainant. This clause says that if there is a delay on the part of the OP to complete the work within the deadline OP shall be liable to compensate. The complainant’s have not produced any material to show that they have not performed the job within the deadline agreed. From the above it is clear that complainant have not established their case. What prevented them to approach within time. Further more the case has been filed after 2 years after the validity of agreement has expired. The complainant relied upon the E-mail dated 19.11.2007 saying that limitation is continued by mutual consent. Here it is stated that the E-mail dated 19.11.2007 it is after the expiry of limitation. <br /> <br /> 13. Further complainants have not stated anywhere in their complaint about the balance of Rs.2,00,000/- to be paid to the OP nor they have controverted in their affidavit. It appears in order to avoid the payment of balance they have come up with this case. From this it is clear that the complainant have not come with clean hands. It is said he who seeks equity must do equity and must come with clean hands. Even the OP’s have offered to setright the problems of the Lyceum Software. But the complainants did not come forward to co-operate and assist the OP’s in doing the service. Therefore it appears complainants are not interested in getting the problems solved. Evenafter the filing of the case also the OP’s have offered to extend their services to the complainant. <br /> <br /> 14. Viewed from any angle it is clear that the case against OP has not been established by the complainant. There is no proof of deficiency in service on the part of OP. Hence the complainant is not entitled for the relief claimed. The complaint appears to be devoid of merits. Accordingly we answer point nos.1 and 2 and proceed to pass the following: <br /> <br /> O R D E R<br /> <br /> The complaint is dismissed. In view of the nature of dispute no order as to costs.<br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 10th day of September 2008.) <br /> <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br /> <br />