Date of Filing      : 20.10.2021

                                                                                                                 Date of Disposal: 31.10.2022

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

 

 BEFORE  TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law)                  .…. PRESIDENT

                 THIRU.P.MURUGAN,.MCom., ICWA(Inter)., B.L.,                                    ....MEMBER-II

 

CC. No.54/2021

THIS MONDAY, THE 31st DAY OF OCTOBER 2022

 

Sree Ram Agencies, 

Rep. by its proprietor T.S.Seenivasa Chetty,

Having Office at S.No.143/2A2,

NH 205, Chennai Thirupathi Highway,

Ponpadi, 

Thiruttani taluk,

Thiruvallur District. 631 213.                                                       .........Complainant. 

                                                                          //Vs//

1.The Manager,

   Paytm, One 97Communication Limited,

   2nd Balammal Building,

   No.33, Burkit Road, T.Nagar, Chennai 600 017.

 

2.The Director, 

   Paytm, Corporate Headquarters,

   One 97, Communications Limited, 

   B 121, Sector 5, Noida 201 301. India.                                      ...Opposite parties.

 

Counsel for the complainant                                 :   Mr.S.Sushil Kumar, Advocate.

Counsel for the opposite parties                          :   Mr.P.Purushotham, Advocate.

                         

This complaint is coming before us on various dates and finally on 18.10.2022 in the presence of Mr.S.Sushil Kumar Advocate,  counsel for the complainant and Mr.P.Purushotham  Advocate, counsel for the opposite parties and upon perusing the documents and evidences of both sides, this Commission delivered the following: 

ORDER

PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI,   PRESIDENT.

 

This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service along with a prayer to direct the opposite parties  to pay Rs.70,38,010.85/- to the complainant for the sale of petrol and diesel and to pay a sum of Rs.6,00,000/- towards compensation for the mental agony and hardship caused to the complainant due to the deficiency in service and to pay a sum of Rs.10,000/- towards cost of the proceedings to the complainant. 

Summary of facts culminating into complaint:-

 

It was the case of the complainant that he was having an ESSAR OIL BUNK at Ponpadi Village, Tiruttani Taluk.  The 1st opposite party’s representative Mr.Sabarinathan visited the complainant in the month of April 2020 and requested the complainant for setting up Paytm Merchant. It was informed that once the customer show transaction done successful, automatically the money would be credited to the merchant account and that the weekly Statement of Account would be given weekly.  The complainant set up a merchant ID SreeRa66136459103033 and display name on QR Codes as Sree Ram Agencies. The opposite party’s representative further informed the complainant that for each and every transaction, complainant would receive message with the balance in his account and assured for sending weekly statement to the complainant and sent money to the complainant’s Union Bank for every 12 hours.  The facility was set for use from May 2020 and the transaction gradually started to increase. Whenever the complainant requested the statement of account, the opposite party gave lame excuses and evaded to furnish the same. Not furnishing the weekly statement of account amounts to gross negligence.  The complainant used to maintain ledger for each and every transaction and deposits day to day cash in his bank account. Without the account from Paytm, the complainant could not close his account.  On verification of his accounts with ledger there were several differences in payment from Online and QR Code.  The complainant questioned the opposite party for non-furnishing of Statement of Account and the mismatch in payment. After several phone calls and reminders the opposite party furnished the Statement of Accounts from May 2020 to July 2021 only on 06.08.2021, The delay in furnishing the Statement of Account amounted to gross deficiency in service and unlawful trade practice. As per complainant’s Statement of Accounts and ledger, the opposite party was liable to pay Rs.1,29,31,649.00/- out of which opposite party had paid only Rs.58,93,458.15/- and was liable to pay the balance amount of Rs.70,38,090.85/-.Thus aggrieved by the act of the opposite parties the present complaint was filed for the following reliefs as mentioned below;

To direct the opposite parties  to pay Rs.70,38,010.85/- to the complainant for the sale of petrol and diesel;

 To pay a sum of Rs.6,00,000/- towards compensation for the mental agony and hardship caused to the complainant due to the deficiency in service;

 To pay a sum of Rs.10,000/- towards cost of the proceedings to the complainant. 

Crux of the defence put forth by the opposite parties:-

The opposite party filed version disputing the complaint allegion that he was the owner of the website www.paytm.com along with the Mobile Application named “paytm” which provides online marketplace service through its platform in order to facilitate listings/bookings by aggregators directly or through its merchants. The complaint was filed by the complainant without any basis because the claim has been already been settled by the opposite party. The complainant had erroneously claimed an amount of Rs.70,44,119.85/- towards outstanding payment from the opposite party which has accrued during the course of business. The complaint is liable to be dismissed on the ground that the complainant does not fall under the ambit of the definition of “consumer” under Consumer Protection Act 2019. The complainant and the opposite party has a commercial relationship with each other. Having valid contractual arrangement had agreed to provide QR Code machine for transactions to the complainant for conducting his business and the complainant had agreed.  The opposite party had already paid Rs.58,93,458.20/- during course of his business.  The agreement was accepted and executed by both the parties. Opposite party‘s entity undertakes and agrees to indemnify at all times and hold harmless one 97 facility providers, participating banks and NPCI from and against all actions, proceedings, claims, liabilities, penalties, demands and costs, awards, damages, losses however arising as a result of any breach of applicable laws, GST, rules and regulations etc. But the complainant had not abided by the terms and conditions of the agreement. Both the parties agreed that the competent courts at New Delhi shall have the exclusive jurisdiction. The complainant‘s outlet was managed by the brother of the owner of the outlet and whatever transaction takes place at the outlet via Paytm QR Code, the opposite party used to send SMS confirmation with the value/transaction id/date and time on the merchant register mobile number and also provided business app and dashboard access to the outlet registered number. The complainant has been checking transaction details on a real time base.  The opposite party visited the outlet regularly and they are very well aware of the process.  Every day the settlement amount is being notified to the merchant via SMS.  The complainant has not shared any details of order id to claim the amount. The complainant shared with the opposite party manual ledger but they did not provide on what basis they made the same.  Hence the opposite party could not consider the same because for validation account they needs paytm order id with amounts. In case the merchant feels any deviation against the order id, the merchant can share order id for which payment was not settled. The opposite party has explained the same to the owner of the complainant’s company and Essar Sales Officer, but till date there was no such order shared by the complainant. In legal notice the complainant has claimed different amounts. The opposite party provided the payout details from May 2020 to July 2021 to the complainant as requested by him. As per the payment details the complainant was eligible for Rs.58,93,458/- and the said amount was already paid by the opposite party and explained vide email dated 11.08.2021 and 16.08.2021. The complainant alleged that the total outstanding was Rs.1,29,31,649/- and out of which the opposite party had already paid Rs.58,93,458.15/- to the complainant.  The amount pending as per the calculation in the complaint was Rs.70,38,090.85/- but the complainant mentioned in the legal notice dated 12.08.2021 that the pending amount was Rs.70,44,119.85/-.  Thus contending that there is no deficiency in service on their part, the opposite parties sought for complaint to be dismissed. 

The complainant had filed proof affidavit and documents Ex.A1 to Ex.A7 were marked on their side.  On the side of opposite parties proof affidavit was filed and documents Ex.B1to Ex.B6 were filed by them.  

Point for consideration:-

Whether the complaint is maintainable before this commission and whether this commission has jurisdiction to try the complaint?

Whether the complaint allegation against the opposite parties constitutes deficiency in service and whether the same has been successfully proved by the complainant?

If so to what relief the complainant is entitled?

Point No.1:-

On the side of the complainant the following documents were filed in support of the complaint allegations;

Sree Ram Agencies production details dated 28.03.2020 was marked as Ex.A1;

Payment report dated 06.08.2021 was marked as Ex.A2;

Complainant’s statement from 01.05.2020 to 31.07.2021 was marked as Ex.A3;

Paytm received payment particulars from 20.05.2020 to 22.07.2021 was marked as Ex.A4;

Legal notice issued by the complainant to the opposite parties dated 12.08.2021 was marked as Ex.A5;

Acknowledgement card for proof of delivery was marked as Ex.A6;

Reply notice issued by the opposite parties was marked as Ex.A7;

On the side of opposite parties the following documents were filed in support of their defence;

Copy of the board resolution letter in favour of Mr.Jitender Kumar was marked as Ex.B1;

Copy of agreement was marked as Ex.B2;

Copy of legal notice issued by the complainant to the opposite parties12.08.2021 was marked as Ex.B3;

Copy of reply to the legal notice dated 27.08.2021 was marked as Ex.B4;

Copy of email dated 28.07.2021 issued by opposite parties to the complainant was marked as Ex.B5;

Copy of email dated 11.08.2021 & 16.08.2021 was marked as Ex.B6;

  Heard the oral arguments adduced by both parties and perused the written arguments, pleadings and material evidences produced by them. 

The crux of the complainant’s case is that they were running an Oil Bunk and had utilized the services of the opposite parties for setting paytm for the complainant’s Oil Bunk, but the opposite parties had failed to furnish the weekly statement. Further, on verification it was found that there were differences in the payment to be made by the opposite parties.  As per the complainant’s statement the opposite parties were liable to pay Rs.1,29,31,649/- but the opposite party had paid only Rs.58,93,458.15/- and that the opposite parties is still liable to pay the balance amount of Rs.70,38,090.85/-.  Thus the complainant alleged the deficiency in service on the part of the opposite parties and sought for the complaint to be allowed directing the opposite parties to pay the balance amount of Rs.70,38,090.85/- to the complainant and a compensation of Rs.6,00,000/- along with cost.

On the other hand the opposite parties filed version disputing the complaint allegations on the ground of maintainability of the complaint before this commission.  It was contended that as the services was availed in the mode of business to business the present complaint is not maintainable before this commission and thus they sought for the complaint to be dismissed.  It is argued by the learned counsel for the opposite parties that the complainant had failed to produce the details of transaction and transaction ID to show that there was balance amount of payment to be made by them. Further they argued that as per clause 20 of the agreement only Delhi Court has jurisdiction to try the complaint. 

As the opposite parties had raised an issue with regard to maintainability of the complaint, this commission decided to discuss the maintainability of the complaint as a preliminary issue.  It is seen that the complainant had relied upon the paytm report dated 06.08.2021, complainant statement for the period of 01.05.2020 to 31.07.2021 and the paytm received payment particulars for the period 20.05.2020 to 22.07.2021.  However the opposite parties had filed an elaborate written version disputing the allegations.  The amount claimed by the complainant was a sum of Rs. 70,38,090.85/- towards the outstanding payment which was disputed by the opposite parties.  They also relied upon the agreement executed between the parties to dispute the complaint allegations.  However no agreement was produced by the complainant and also the opposite parties when both parties are relying upon the agreement.  However, when the defence raised by the opposite parties are considered, this commission is of the view that the complaint involves complicated questions and facts which could not be decided before this commission as the dispute is with regard to the accounts in respect of amounts collected, date of payment and amounts payable by the opposite parties to the complainant etc.  This commission is of further opinion that such dispute could not be resolved in a summary proceeding in the Consumer Commission and of the view that such dispute should be adjudicated before a Civil Court where elaborate evidence can be recorded by both parties.  Further the issue involved in the complaint is of contractual nature and the dispute needs a trial procedure which is possible only before a Civil Court.  

We find our view supported by the NCDRC order passed in CC.No.140/2009 in M/s. Safe Home Developer and Contractors Vs Samata Sahakari Bank Limited dated 16.10.2012 wherein after considering various judgments the commission has held that “after going through the pleadings if complicated question of facts and law arises, complaint should be returned to the complainant to approach the Civil Court or any other Forum.  Perusal of pleadings clearly reveals that forgery/genuineness of 250 cheques is in issue which involves complicated question and law and involves lot of evidence and detailed enquiry which cannot be decided in a summary way and in such circumstances application filed by the opposite party should be allowed and complaint should be returned to the complainant”.  Also in a recent order passed by Supreme Court in The Chairman & Managing Director, CUB Vs R.Chandra Mohan it is held that “the proceedings before the Commission being summary in nature, the complaints involving highly disputed questions of facts or the cases involving tortious acts or criminality like fraud or cheating, could not be decided by the Forum/Commission under the said Act. The "deficiency in service", as well settled, has to be distinguished from the criminal acts or tortious acts.

There could not be any presumption with regard to the wilful fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance in service, as contemplated in Section 2(1)(g) of the Act. The burden of proving the deficiency in service would always be upon the person alleging it.” Thus we hold that the present complaint is not maintainable before this commission and that the complainant had to approach a competent Civil Court for redressing his grievances.  Thus we answer the point accordingly in favour of the opposite parties and as against the complainant.

Point No.2:-

As we have held above that the complaint could not be adjudicated before this commission we restrain ourselves from going in to merits of the complaint leaving it open to be adjudicated before appropriate Forum.

Point No.3:-

The complainant is not entitled any reliefs from the opposite parties. Thus we answer the point accordingly.

In the result, the complaint is dismissed.  No order as to cost. 

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 31st day of October 2022.

 

    Sd/-                                                                                                             Sd/-

MEMBER-II                                                                                                PRESIDENT

 

List of document filed by the complainant:-

 

Ex.A1 28.03.2020 Sree Ram Agencies production details. Xerox

Ex.A2 06.08.2021 Payment report from May 2020 to July 2021. Xerox

Ex.A3 .................. Complainant’s statement from 01.05.2020 to 31.07.2021. Xerox

Ex.A4 ................ Paytm received payment particular from 20.05.2020 to 22.07.2021. Xerox

Ex.A5 12.08.2021 Legal notice issued by the complainant to the oppostie parties Xerox

Ex.A6 ................ Acknowledgement card. Xerox

Ex.A7 27.08.2021 Reply notice. Xerox

 

List of documents filed by the opposite parties:-

 

Ex.B1 ............. Copy of board resolution letter. Xerox

Ex.B2 ............. Copy of Agreement. Xerox

Ex.B3 12.08.2021 Legal notice issued by the complainant. Xerox

Ex.B4 27.08.2021 Reply notice. Xerox

Ex.B5 28.07.2021 Copy of email. Xerox

Ex.B6 ................ Copy of email. Xerox

 

 

   Sd/-                                                                                                                Sd/-

MEMBER-II                                                                                                 PRESIDENT