First Appeal No. 2007/575

(Arising from the order dated 18.04.2007 passed by District Forum(South-II) Udyog Sadan, Qutub Institutional Area, New Delhi, in Complaint Case No.906/2002)





M/s. Compunnel Softwares … Appellant/OP

India Private Limited,

8C, Scindia House, K.G. Marg,

New Delhi.











Versus



Mohan Exports India Pvt. Ltd., ... Respondent/Complainant
Mohan House, through Mr. Saurabh Banerjee
Community Centre advocate

Zamrudpur, Kailash Colony Extn.

New Delhi





CORAM



Justice Barkat Ali Zaidi ... President

Sh. M.L. Sahni … Member



1. Whether reporters of local newspapers be allowed to see the judgment?



2. To be referred to the Reporter or not?



Justice Barkat Ali Zaidi, President(ORAL)





1. Brief facts of the case are that the respondent complainant is a company doing its business of export of garments, while the appellant OP is the provider of IT services. They initially entered into an agreement on 13.09.1999 and subsequently on same day with supplementary agreement for total consideration of Rs.6,75,000/- , according to which the appellant OP had to provide services of five softwares namely (i) Money Vista (2) Pay Roll Module (iii) Export Documentation Package (iv) Email Messageint and (v) The Gems Flow, within a period of 4 to 6 months latest by March 2000. Pursuant to this agreement the respondent complainant paid Rs.3,25,000/- to the appellant OP against two invoices raised by the appellant. The appellant OP installed only Money Vista, Pay Roll Module and Export Documentation but all three turned to be ineffective while E-mail Messagint package which the OP arranged from somewhere else also failed to function. Appellant OP could not install the Gems Flow package.

2. For this failure of the OP, the complainant filed a complaint before District Forum claiming refund of Rs.3,25,000/- paid by it to the appellant OP, Rs.1,00,000/- towards damages and compensation, Rs.44,318.80/- towards charges spent upon making its system again functional and operational with old modules besides cost of litigation.

3. OP contested the claim of the complainant alleging that in place of Money Vista it has offered to install Tally free of charge with an alternative offer that the complainant can deduct Rs.25,000/-, the price of the tally from total consideration. The appellant further alleged that on 20.02.2001 and 22.02.2001 the parties had arrived at an agreement that the appellant company would get sign for pay roll documentation for agreement and after that Gems Flow sing of will be taken, but the respondent did not allow the appellant to install the system. The appellant also alleged that the project could not be implemented because the respondent complainant withheld further payment, the appellant OP also pleaded that the services of the appellant were hired for commercial purpose and also that the complaint was time barred.

4. The District Forum after scrutinising the evidence of both the parties repelled the contention of the appellant OP including the legal objections that the services of the appellant were hired for commercial purpose and the complaint was therefore not maintainable under the provision of Consumer Protection Act 1986. It also repelled the contention that the complaint was time barred, holding that the agreement between the parties was dated 13.09.1999, which was to be executed within 4 to 6 months while project was not completed even in the year 2001 and therefore the complaint filed in May 2002 was prefect within the limitation. The District Forum also repelled the contention of the appellant that the respondent complainant was responsible for the failure of the project, holding that the agreement fell and could not be completed within stipulated period, because the service provided by the appellant OP, were neither adequate nor upto the mark and held the OP guilty for deficiency in service, and for that, directed the appellant OP to refund Rs.3,25,000/- to the complainant, to pay Rs.20,000/- towards compensation and Rs.5,000/- towards cost of litigation.

5. That is what brings the appellant OP in appeal here.

6. The counsel for the appellant did not appear and Sh. Saurabh Banerjee, counsel for the respondent has been heard.

7. We have gone through the Memo of appeal very carefully.

8. With regard to the first contention that it is a time barred complaint , according to the agreement dated 13.09.1999 it is to be noticed that the project was to be completed within 4 to 6 months which the appellant could not complete. The appellant’s plea is also that there was that there was an agreement between the parties subsequently on 20.02.2001 for completion of the project and for making it functional. The complaint is filed in May 2002. The District Forum, therefore rightly rejected the contention of the appellant that the complaint is time barred.

9. With regard to other contention of the appellant that it is the respondent who did not cooperate which resulted in not installing the systems within time and in its non-success. It will be noticed that 3 out of five systems were installed by the appellant and all of them were a failure and did not function. The appellant company was therefore prima facie liable for compensation because the systems installed by it were found to be unusable. The plea of the appellant company is that after the three installed by it failed to function there was a fresh agreement between them whereby the remaining two systems will be installed by the appellant company but the company could not install the system because of non cooperative attitude of the respondent. It is apparent in the circumstances which transpired that the appellant company wants to shift the blame on the respondent firm for its failure to install the two agreed systems. The respondent company contacted to get the system installed and there was no reason or occasion to them to obstruct the installation. The plea of the appellant in this regard is unacceptable.

10. For all these reasons the District Forum was fully justified in passing the impugned order in favour of the respondent complainant.

11. Appeal is therefore dismissed being devoid of merit.

12. FDR/Bank Guarantee, if any deposited by the appellant be released in favour of the appellant subject to complete of formalities.

13. A copy of this order as per the statutory requirements, be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room.

14. Announced on the 23rd day of November 2009.