ORDER

SRI.H.R. SRINIVAS.  PRESIDENT

1.     This is the Complaint filed by the Complainant against the Opposite Party (herein referred to as OP) under section 35 of the Consumer Protection Act 2019 for the deficiency in service in not carrying out the agreed work in respect of providing software and hardware work in respect of the banks transaction though it has received Rs.75,000/- against the agreed amount of Rs.1,70,000/- and for refund of the same, Rs.25,000/- as compensation for the loss of the credit worthiness and causing hindrance for the function of the activities of the complainant’s bank and for awarding cost and for such other reliefs as the Hon’ble District Commission deems fit.

2.     The brief facts of the complaint are that; complainant is carrying on the banking business under Sri Kalikamba Souharda Sahakari Niyamitha in Yashwanthpur serving the public and to its members. It wanted to improve the efficiency of the system and intended to digitalize and computerize their banking transactions and at its place of work and to upgrade the computer software package and hardware to be installed in its branches for which, it called tender and proposal given by the OP to install Unicore version 1.0 banking software and hardware package to its branches for a sum of Rs.1,50,000/- was accepted. It paid Rs.75,000/- on 05.04.2017 towards part consideration to carry on the work to OP. OP also entered into agreement to execute the said project and also further agreed to do the same by installing the software and hardware within 3 months from the date of agreement. It also entered into an non-disclosure agreement agreeing not to disclose any details or information regarding 1) confidential information transpired between the bank and customer. 2) to protect the proprietary information 3) Security of the system installed and 4) to train the staff member for the use of the installed software and hardware.

3.     After entering into agreement by receiving Rs.75,000/-, from the very inception, OP deliberately delayed the installation and implementation of the digitalization in the office.  Inspite of repeated emails and communications, OP failed to carryout the project in time.  Being aggrieved and fed up with the delay in project by OP, it sent a letter on 20.07.2017 to Sri Nilesh Jariwala the director of OP regarding delay in supply of banking software unicore 1.0 to the complainant.  Another email was also sent to that effect giving a warning that for further delay, they would take legal action.  Complainant did not expect the attitude of the OP which made the complainant to loose the trust gained from the public and the members. The act of OP betrayed the complainant who has to bow down its head.  Inspite of undertaking by OP to install the software within time, it failed to do so. Hence they had to issue a legal notice on 11.06.2018 and demand OP to refund the advance amount received and also compensate by paying Rs.25,000/- to which OP has sent an untenable reply and there is deficiency in service and prayed to allow the complaint.

4.     Upon the service of Notice OP appeared before the commission and filed version contending that the complaint is not maintainable either in law or on facts and liable to be dismissed by imposing exemplary costs. It has admitted having entered into with the work agreement to provide and install banking software technology UNICORE version 1.0 to be carried out for Rs.1,50,000/- for which it received Rs.75,000/- as advance on 05.04.2017. It was given the contract to install the software only and not the hardware and it was also agreed to have executed the agreement in respect of the same and to abide by the terms and conditions mentioned therein. It was also agreed by it that it would provide warranty for UNICORE software for a period 1 year from the date of complete installation and transition period of 3 months, within which, any changes to the software rating relating to report format, adding to the data information to be executed. The agreement was for a period for 1 year 3 months which was customized.  It has denied that from the very beginning there was a deliberate delay in carrying out the project work by it.  The staff of the complainant were not at all cooperating and furnishing true correct proper information about the servers, datas and it was kept in dark regarding the function of ‘maintech’ two different software version.  When the said glitches were identified and brought to the notice of the complainant, instead of accepting the mistake, kept OP and technical team in dark and confronted the OP and started addressing false and fictitious mails which caused unnecessary delay in implementing the project.

5.     The staff of the complainant provided informations stored in the ‘MAINTECH’ software and after the same was uploaded to UNICORE 1.0, version, the complainant started making allegation that the installed software was not installed properly and there were defects.  When the technical team of OP visited the complainant office explained and tutered the staff of the complainant, afterwards, they gave another set of datas and that those information were supposed to be uploaded to the new software that was installed.  Whatever the data and information given by the complainant, were uploaded to the new customized version.  There is no delay on their part in implementing the banking software UNICORE 1.0 version. It has uploaded whatever the data and information given to them whereas complainant it suppressed the information about the usage of two different software versions. 

6.     It is further contended that OP company was undergoing monetary transition and at no point of time delayed implementation of UNICORE VERSION1.0. There was no delay on its part. The allegations have been made by the complainant in order to make unlawful gain for itself on false, and fictitious grounds and letters.  From the date of agreement OP and its technical team were tirelessly working for the implementation and customization of the software in the complainant banking society.  It is the complainant and its staff who did not cooperate with the project.  From the date of agreement, OP had been regularly updating the complainant through phone, through mail, through letter and personal visit regarding the progress of the project and the problems facing by it. Taking undue advantages of the lacunas on its part. Complaint regarding non-disclosure of the proper information about the existing software used by the complainant at the time of installation of the new software by the OP has made false allegations.  At no point of time, OP deviate or violate the terms and conditions stipulated in the agreement nor is a willful defaulter or delayed in implementation, installation up-gradation and customization of the agreed software.  It has not acted irresponsibly or practiced unfair trade practice. When once the up-gradation and customization of new software is carried out, it is the duty of the complainant to have the continuity of the data entered into the new version. In order to minimize its work load the complainant insisted the OP to carry out the same activity.  It is not liable to pay and refund Rs.75,000/- and damages of Rs.25,000/- as claimed in the legal notice and hence prayed the commission to dismiss the complaint.

7.     In order to prove the case, complainant filed his affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the Opposite Party?

2) Whether the complainant is entitled to the relief prayed for in the complaint?

8.     Our answers to the above points are:-

POINT NO.1 & 2:     In the Affirmative.

                                For the following.

REASONS

POINT No.1:-

9.     On perusing the complaint, version, documents, evidence filed by the both the parties, it becomes cleared that, the complainant and OP entered into an agreement of executing the project to install software Unicore 1.0  and OP received Rs.75,000/- to execute the project. It is the contention of the complainant that the said project was not implemented by the OP and even OP was not receiving calls and request to execute the agreement, by that, they were put to untold hardship and since their activity is banking, the customers have suffers immensely. OP failed to fulfill the commitment and the undertaken given by it and hence they have to suffered immensely and the OP had betrayed the trust that the complainant had with OP. 

10.   On the other hand, it is the case of the OP as narrated in the earlier part of this order, that there was no cooperation from the complainant side to execute the project of installing UNICORE 1.0-version banking software. Complainant did not inform it that it was having another software working i.e. Maintech and two different software version do not work together.  It has also denied the fact that the complainant has provided all the facts and materials, and information to upload to the new software and there was delay on the part of the OP’s in installing the same.

11.   It is the specific contention of OP that there is no delay on its part. Several correspondences have taken place between complainant and OP which has been produced before this forum and has been admitted by both the parties. Especially in Ex.P5 email letter dated 06.08.2017 mailed to the complainant by OP wherein it is specifically stated that:

“With reference to the installation and implementation of Unicore 1.0 software at your both Head office and branch, and also in reply to your letter dated 20.07.2017, we had sent one mail on 28/07/2017 and also our engineer Taqoor Singh visited the branch on 04.08.2017 for date collection and the process is still continuing, the same over telephone communicate to head office.

We regret the delay in the implementation, initially the delay was because we took time to understand your previous date and by the time we completed the data transfer tool, we stuck with our problems which was mentioned in my earlier mail. However we do take note and understand the delay in the process, but we were really in bad shape during last 2 months, and our priority was to overcome our internal and financial issue so that we could move forward. It is true that we did not keep your updated on the situation nor communicated, but we could not do it because of various intenral reaons. We respect the agreement made between us and are also committed to complete the job at the earliest. We have proper implementation plan made from our side are ready to start the work, need your permission to start the same. The details of implementation plan is as below:

1. Collect the Head office data  of a particular date
2. Convert the data at our end within 10 working days.
3. After conversion team up with your staff members at your office and complete the verification process within 5 days.
4. After verification of master data is completed, link the schemes and ledgers and enter atleast 2^nd days transactions to new software and confirm that the data is updating correctly, this process should take atleast 3 working days.
5. Once steps 4 to 5 is completed, thereafter we make your staff to enter the transaction data of 3 to 4 days in our software, during this time updates or corrections as requested will be taken care by our engineers, and simultaneously training and implementation will be done.
6. Fine tuning and customization of product wherever possible and necessary.  

For step 1 to 4 it is more of our work and need support from your staff, where we are able to commit  on the completion of the work, once your staff starts involving during step 5, we need to take their feedback on progress and kind of support they need further, based on that we again commit a deadline to complete step 5 and 6.

We understand your concern about the non-completion of the job and also regarding our capability to complete the job on time, but we would like to assure you that we have come out of the bad phase we were going through and made all the necessary arrangements within our organization such that services to our customers do not suffer and we grow further.

We once again seek permission to start the work at your head office.”

12.   When these facts and circumstances are taken in to consideration, it becomes clear that, OP failed to implement the project as assured and agreed in the agreement. Further it is not made clear as to whether OP has completed the project and the same is in operation. To that effect both parties are silent. Whereas it is the duty of the OP to prove with cogent and convincing evidence that it has carried out the project of installing of UNICORE to banking software to the system of the complainant even though lately.  Even no evidence to that effect is also been adduced by OP. Even OP has not come out as to where the project stands, and whether it has been done or not at all started, let alone completed. Under the circumstances, we have to presume that even after receiving 50% of the total cost of the project, OP did not start the project, completed it and put it in action to the benefit of the complainant and to its customers. Hence there is inordinate delay in implementing the project and hence it amounts to deficiency in service and not refunding the amount received as advance and keeping it with it, without refunding the same also amounts to unfair trade practice and hence we answer POINT NO.1 IN THE AFFIRMATIVE.

POINT NO.2:

13.   Complainant has sought for refund of Rs.75,000/- which it has given as advance towards the implementation of the project. The same has been admitted unequivocally by OP.  In view of OP not producing any evidence to convince this commission regarding implementation of the installation of software, to the system of the complainant, we have to presume that OP has not at all commenced and carry out the project hence it is the bounden duty of OP to refund the amount of Rs.75,000/-along with interest at 12% per annum from date of demand i.e. 11.06.2018 till the payment of the entire amount. The act of OP put the complainant to difficulties in not carrying out the changes which it wanted to implement in its day to day banking affairs. Complainant has sought Rs.25,000/- as damages under the head for causing hindrence and functioning of the activity and we deem it quite reasonable, and award the same. Further act of OP made the complainant to approach this commission by filing this complaint for which it has paid legal and professional fee and we quantify the same at Rs.10,000/- and direct OP to pay the same to meet the cost of litigation. Hence we answer POINT NO.2 ALSO IN THE AFFIRMATIVE and pass the following:-

ORDER

1. The complaint is partly allowed with cost.
2. OP i.e. “M/s. UNIFY INFOTECH (P) Ltd.,” represented by its Managing Director/Authorized Signatory is hereby directed to refund a sum of Rs.75,000/- to the complainant along with interest at 12% per annum from the date of demand i.e. 11.06.2018 till the payment of the entire amount.
3. Further OP is directed to pay Rs.25,000/- towards damages for causing mental agony, physical hardship and financial loss to the complainant and Rs.10,000/- towards the litigation expenses to the complainant.
4. OP is hereby directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this Commission within 15 days thereafter.
5. Send a copy of this order to both parties free of cost.

Note: You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Commission on this day the 08^th day of April 2022)

MEMBER                     PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the Authorization letter..

Ex P2: Copy of the agreement entered in OP-1.

Ex. P3: Copy of the Non-disclosure agreement.

Ex P4: Copy of the correspondences.

Ex P5: Copy of the email correspondences.

Ex P6: Copy of the legal notice

Ex P7: Copy of reply.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: -Nil-.

Copies of Documents produced on behalf of Opposite Party/s

-Nil-

MEMBER                PRESIDENT

RAK*