DATE OF FILING : 17-09-2009..
DATE OF FINAL ORDER : 28-05-2010.
Sri Goutam Mukherjee,
son of Sri Tarun Kumar Mukherjee,
residing at 219, G.T. Road ( South ),
near Shibpur Tram Depot S.B.I., P.S. Shibpur,
District –Howrah---------------------------------------------------- COMPLAINANT.
Versus -
1. People Interactive ( I ) Pvt. Ltd.
Having its registered office at
SHIV-E-NA ( 2nd floor ),
205, Dr. Annie Basant Road, worli,
Mumbai – 400 018. and its regional office at
13-G, Everest House, 46-C, Chowringhee Road,
Kolkata – 700071.
2. Sri Om Prakash Hassanandani,
. Business Head – Shaadi Point,
People Interactive India Pvt. Ltd.,
205, Shiv-E-Numh, Dr. Annie Basant Road,
Worli, Mumbai – 400 018. ---------.----------------------------OPPOSITE PARTIES.
P R E S E N T
1. Hon’ble President : Shri J. N. Ray.
2. Hon’ble Member : Dr. Dilip Kr. Chakraborty.
3. Hon’ble Member : Smt. Samiksha Bhattacharya.
C O U N S E L
Representative for the complainant : Shri Ansu Mukhopadhyay,
Shri Prithwiraj Sarkar,
Ld. Advocates.
Representatives for the opposite party no. 1
: M r. Phiroze Edulji,
Shri Suman Mukherjee,
Ld. Advocates.
F I N A L O R D E R
One Shri Goutam Mukherjee, son of Shri Tarun Kumar Mukherjee, resident of 219, G.T. Road ( South ) under P.S. Shibpur, has filed the instant complaint petition against the o.ps. namely i) People Interactive (I) Pvt. Ltd. , ii) Sri Om Prakash Hassanaandani, alleging deficiency in service.
The case of the complainant is that the complainant Shri Goutam Mukherjee was an unemployed youth and in order to employ himself, as a self-employed youth for the purpose of earning his livelihood by means of self employment wanted to start a business of his own with the help of and assistance from his father and bank or financial institutions. The o.p. no. 1 has been carrying on and conducting business under the name and style of “Shaadi Point” which is a chain of matrimonial service centre to provide services to the members of the public to help them to find their life partners and to provide associated marriage services. So the complainant being desirous to be a franchisee ( under a license ) for a limited purpose only to temporarily use the trade names, design, copy right etc. in connection with the operation of matrimonial service centre approached to o.p. no. 1 and o.p. no. 1 agreed to appoint his as franchisee on non exclusive basis for the territory in Howrah, West Bengal, India, and accordingly entered into a Memorandum of Understanding ( MOU ) on 04-09-2006 for franchisee of matrimonial service centre with various terms and conditions as embodied in the said MOU and the said MOU has been executed and signed at the office of the complainant at 219, G.T. Road ( South ), P.S. Shibpur, District – Howrah. At the time of entering into such memorandum of understanding for franchise the o.p. no. 1 received a sum of Rs. 2,24,840/- only on account of “franchisee fee” for Howrah Centre and also a sum of Rs. 25,000/- on 31-03-2007 towards part payment of advance credited by means of an account payee cheque bearing no. 213464 drawn on Syndicate Bank, Howrah Branch, on grant of proper receipt. At the time of entering into the said MOU it was initially agreed that there would be eight terminals but as the extra bank finance was not ;available to the complainant, the complainant through E-mail wrote a letter dated 12-01-2007 to one Shri Suman Chattoraj, Senior Manager, Business Development & Franchising of the o.p. no.1 interalia requesting him to allow to start franchise business with four P.C.S. Such written request was ultimately accepted by the o.p. no. 1 through E-mail dated 13-01-2007, he was informed relating to such opening of four terminals instead of eight terminals subject to certain conditions but inter alia requesting him to allow to start franchisee fee from Rs. 2,24,480/- to Rs. 3,00,000/- plus 12.24% sales tax. That on receipt of such E-mail dated 13-01-2007 the complainant again wrote a letter dated 16-01-2007 via E-mail inter alia stating that when a sum of Rs. 2,24,480/- as per the said MOU has already been paid and accepted as franchisee fee, the complainant is not required to pay any extra fee. It is alleged that all on a sudden o.p. no. 1 beyond the scope of the said MOU asked for providing excess area although at the time of execution of the said MOU the o.p. no. 1 was given to understand exact area which was available fro the purpose of starting the said franchise business and it was duly accepted by the o.p. no. 1. Due to some unavoidable circumstances the complainant send a letter dated 29-11-2007 requesting the o.p. no. 1 to do the needful as per as possible and within the stipulated period as fixed by the o.p. no. 1 as 31-01-2007. The stand taken by the complainant through his letter dated 29-01-2007 through E-mail was duly accepted and acknowledged by the o.p. no. 1 through telephonic discussion inter alia asking the complainant to submit plan and the complainant on 02-02-2007 through E-mail sent the plan for approval of the o.p. no. 1. As nothing was received from the o.p. no. 1 after the plan was submitted through E-mail on 02-02-2007, the complainant was constrained to write another letter dated 14-05-2007 through E-mail to the o.p. no. 1 asking a written approval on the part of the o.p. no. 1 so that the matter can be finalized. But unfortunately in spite of acceptance nothing has been received from the o.p. no. 1 & 2. So the complainant was constrained to right a letter dated 15-02-2008 at Kolkata Office of the o.p. no. 1 asking for refund of sum of Rs. 2,24,480/- which was already been paid towards franchisee fee and other. After received of the said letter dated 15-12-2008 there was telephonic conversation in between the complainant and the o.p. no. 1 and it was ultimately agreed by the o.p. no. 1 that the aforesaid sum of Rs. 2,24,480/- and Rs. 25,000/- will be refunded to the complainant as early as possible. Since no reply was received in spite of writing the letter dated 15-02-2008 through E-mail which was duly received by the Kolkata office of the o.p. no. 1. The complainant as a last ditch effort through his authorized agent namely Aloke Kumar Adak, Advocate, wrote a letter dated 15-11-2008 to the o.p. no. 1 at both the Mumbai Office as well as Kolkata Officer of the o.p. no. 1 requesting for refund of the total sum of Rs. 2,24,480/- + Rs. 25,000/- thus in all Rs. 2,49,480/- within a fortnight from receipt of the said letter. The o.p. no. 1 also gave a reply through his ld. Counsel expressing their willingness to refund a sum of Rs. 25,000/- only but expressed their inability to refund the sum of Rs. 2,24,480/- on the plea that the said sum was paid as non refundable franchisee fee for setting up a matrimonial service centre at Howrah and cast entire liability upon the complainant alleging that there was breach of the terms of the said MOU on the part of the complainant. On that account of such deficiency in service, unfair trade practice and reckless activities on the part of the o.ps. the complainant has suffered mental pain and agony and also the prestige and dignity of the complainant has been lowered for such willful activities on the part of the o.ps. and his business reputation has also suffered for which the complainant is entitled to get a sum of Rs. 5,00.000/- towards condensation for causing such mental pain, agony and damage etc.
The o.ps. on receipt of the notice of the complainant filed their written version in form of affidavit in opposition and admitted the existence of the said MOU to the complainant on 04-09-2009. the o.ps. also have highlighted few clause of the MOU as well as its salient feature with the light of their own standing in respect of the matter of this Forum. It is contended that the o.p. no. 1 was a franchiser and the complainant was a franchisee and therefore there has been no relationship between the complainant and the o.p. no. 1 as a consumer as defined under the Consumer Protection Act. It is also contended that there being a Arbitration Clause in the said Memorandum of Understanding this case is not maintainable before this Forum. It is further contended that the complainant failed to honour the MOU and failed to open four further terminals by 19-10-2006. Moreover, there was delay in filing the application as contemplated under the Consumer Protection Act and the this Forum has no jurisdiction to try and entertain such application.
Both parties also filed brief notes of argument on behalf of their respective cases along with the xerox copy of the annexure.
Now the question whether the complainant is a consumer as defined under the Consumer Protection Act, 1986 or not as there is a contract between the complainant and the o.p. that of a franchisee and franchiser ?
DECISION WITH REASONS :
In this regard it is submitted by the o.ps. that o.p. was a franchiser and the complainant was a franchisee and therefore there has been no relationship between the complainant and o.p. as a consumer as defined under the Consumer Protection Act, 1986. It is further submitted that the o.p. no. 1 had entered into a MOU with the complainant dated 04-09-2009 and admitted that the complainant would open eight terminal at his place where he will open the Shaadi Point and for which he deposited non refundable fee. In terms of MOU the complainant applied for four terminals to which he paid Rs. 2,24,480/- with a commitment that he would open the said Shaadi Point with four terminals within 45 days as per specifications laid down by the o.p. no. 1. The complainant further admitted that he would make the balance payment of Rs. 2,24,480/- for the rest of the four terminals as further non-refundable franchisee fee and Rs. 25,000/- towards advance credit by 19th October, 2006. But the complainant failed to honour the Memorandum of Understanding and failed to open four further terminals by 19-10-2006. It further appears that o.p. no. 1 by email dated 13-01-2007 clearly stated that the infrastructure of Shaadi Point completed within 31-01-2007 and stated that the fee for four terminals was Rs. 3,00,000/- at the given point of time. It was clearly mentioned that the MOU was extended till 31st January, 2007 as the time frame in the MOU had expired. The said email has also been annexed by the complainant in the application filed by the complainant. On 17-01-2007 the complainant had confirmed that he would complete the infrastructure within 31-01-2007 but he failed and neglected to complete the infrastructure and start the business within such extended period. The fault completely was with the complainant as he could not comply with the requisition of the o.p. no. 1 to open the said Shaadi Point. So it is submitted on behalf of the o.ps. that the complainant had breached the terms of MOU and is not entitled to any relief whatsoever. It is further contended that one year on or about November, 2008 the complainant caused a false and frivolous advocate’s letter dated 15-11-2008 which was duly replied by the ld. Advocate for the o.p. no. 1 by his letter dated 28-11-2008 wherein it was clearly stated that the non-refundable franchisee fee shall not be refunded but the o.p. no. 1 shall refund Rs. 25,000/- which was the advance credit amount and the same was not accepted by the complainant. Further it is also stated that the complainant filed this application in late stage as contemplated under the Consumer Protection Act and the complainant filed the same for enforcement of a contract which is not beyond the scope of the Consumer Protection Act and this Forum has no jurisdiction to entertain such application. Moreover, there is no relationship between the complainant and o.ps. as a consumer as defined in the Act. Ld. Advocate for the o.p. further submitted that the parties agreed any dispute between the parties shall be referred to a sole arbitrator to be nominated by the o.p. no. 1 and the courts in Mumbai will have exclusive jurisdiction to any proceedings. In this regard ld. Advocate appearing for the o.p. has placed on two recent judgments reported in III (2009) CPJ 87 (NC) and III (2009 ) CPJ 409( J & K State Consumer Disputes Redressal Commission ) where it has been held that a franchisee cannot be said to be a consumer of franchiser as both of them are service providers. It has been further held that the franchisee is rendering service to the granter of the franchisee i.e., the franchiser and gets commission from such work and therefore he is a consumer but himself is a service provider to several consumers. In both the cases it was held that franchisee are not consumer under the definition of consumer as defined in Section 2(1)(d ) of the Consumer Protection Act, 1986.
In the instant case the complainant has failed to produce any document to enter into a business with the o.p. for the purpose of earning his livelihood by means of self-employment and in absence of such evidence it cannot be said that he is a consumer under the definition of ‘Consumer’ as defined U/S 2(1)(d) of the Consumer Protection Act, 1986. Apart from ld. Advocate for the o.ps. has submitted that whether the arbitration clause being their in the agreement all disputes and differences arising out of the agreement ought to be referred to an arbitrator under the Arbitration and Conciliation Act, 1996 ? Has the o.p. filed application under Sectin 5 and 8 of the Arbitration and Conciliation Act 1996 and thus this Forum ought to have referred the matter to arbitrator under the Arbitration and Conciliation Act, 1996 ? It is not disputed that in the said agreement the parties agreed that in dispute between the parties shall be refereed to a sole arbitrator to be nominated by the o.p. no. 1 and the courts in Mumbai will have exclusive jurisdiction to any proceedings. But in this regard the ld. Advocate appearing on behalf of the o.ps. submits that recent Calcutta High Court has reported judgment in CO 218 of 2009 the ;Hon’ble Justice Jyotirmay Bhattacharya while discussing about the ouster of jurisdiction of the Consumer Forum and by referring the Section 8 of the Arbitration and Conciliation Act 1996 held that “------------ the said provision thus makes it clear that the jurisdiction of a judicial authority to decide any dispute between the parties covered by an arbitration agreement is not as such ousted under the provision of the said Act and it is only when a party applied for such reference before submitting his first statement on the substance of the dispute, before such judicial authority, a reference will be made to the Arbitrator for Arbitration of the said dispute between the parties and in that event the judicial authority will not proceed further to decide the said dispute between the parties.” But in this case the o.p. on the first instance had filed an application U/S 5 & 8 of the Arbitration and Conciliation Act 1996 and has also prayed before this Forum to dismiss the application and referred the mater to arbitration. As the opportunity has been taken tby the o.p. at the very first instance this Forum being a judicial authority under the Scheme of Section 8 of the Arbitration and Conciliation Act 1996 wought to have allowed the said application U/S 5 & 8 of the Arbitration and Conciliation Act 1996.
Now regarding the arguments as raised by the complainant it is submitted that if the Forum accepted the preliminary objection as raised hereinabove the complaint filed by the complainant ought to be dismissed in limini . As there is no relationship between the parties as contemplated under the Consumer Protection Act, 1986 and the complaint not being a consumer there is no deficiency of service, unfair trade practice and reckless activities as alleged by the complainant as alleged or at all. Therefore there cannot be any mental pain and agony and there has been no lowering of the prestige and dignity and loss of business reputation of the complainant as alleged or at all. Ld. Advocate appearing for the o.p. lastly submitted that when there is an arbitration clause in any agreement and one party files an application under Section 5 & 8 of the Arbitration and Conciliation Act 1996 at the first instance before the judicial authority then the judicial authority must refer the matter to arbitration. The principle of such arbitration is to lessen the burden of Court and judicial authorities.
In this regard we find that any recent judgment passed by the Hon’ble Apex Court there is no bar to seek remedy before this Forum in case of Arbitration clause as the Consumer Protection Act has got special remedy available to the consumer. But when the complainant does not come under the purview of consumer under the definition of Consumer Protection Act then the question of referring the matter through arbitration does not arise.
Having heard on both sides and also considering the decision referred by the parties we are of the view that the submission on behalf of the o.ps. are very much sustainable and acceptable.
In view of the facts and circumstances of the case the complainant is not a consumer under the Consumer Protection Act, 1996 and the complainant has failed to honour the MOU within the time framed i.e., 31st January, 2007 and there has been relationship between the complainant and the o.p. no. 1 as a consumer and as a the complainant is not entitled to get refund the amount as prayed for and also not entitle to get any compensation as prayed for. Moreover, the decision referred in the case reported in III (2009 ) CPJ 87 (NC) and III ( 2009 ) CPJ 409 ( J & K State Consumer Disputes Redressal Commission ) are very relevant in this case.
Thus the complainant failed to substantiate his case by adducing any cogent evidence and decision and as such it is not tenable in law.
Hence,
O R D E R E D
That the complaint petition is dismissed on contest against the o.ps. with cost of Rs. 1,000/- to be paid to the o.ps. by the complainant within one month from the date of this order.
The complaint petition is thus disposed of.
Supply the copies of the order to the parties, free of costs.
