UNIVERSAL CYBER INFOWAY LTD. vs SATYAM INFOWAY LTD.

THE complainant, Universal Cyber Infoway Ltd. (formerly known as Amit Fabrics Pvt. Ltd.) has filed this complaint against Satyam Infoway Ltd., Maanasarovar Towers, 271A, Anna Salai, Teynampet, Chennai (opposite party No. 1, opposite party No. 2 - Satyam Infoway Ltd., SCO 146-147 (1st Floor), Sector 34-A, Chandigarh (hereinafter collectively to be referred as the Satyam) and opposite party No. 3, Department of Telecommunications through its Principal General Manager, Sector 18, Madhya Marg, Chandigarh for deficiency in service on their part and having suffered an irreparable financial loss, loss of credibility, loss of clientele and intense sustained mental torture.

THE complainant, Universal Cyber Infoway Ltd. is running the premises named as Login Cyber Cafe at SCO 14-15, Sector 8-C, Chandigarh. This according to the complainant is the largest Cyber Cafe in the region with a total investment of over Rs. 30 lacs which provides internet services and is one of the pioneers in its field. This Cafe is part of the growing information technology industry which focuses on providing fast and affordable internet services. As per the averments made in the complaint, the opposite party, Satyam is one of the leading Internet Service Providers (ISP) having national level presence with Chandigarh being one of the cities where internet service is being provided. The Department of Telecommunications (hereinafter to be referred as the DoT) provides the link between the Internet Service Provider i.e. Satyam, and the user, i.e. M/s. Amit Fabrics Pvt. Ltd. by providing the physical service line connecting the offices of the above stated parties. The complainant entered into a Service Level Agreement for the purchase of a dedicated 64 Kbps leased line link with Satyam in July, 1999, copy annexed as Annexure C-1. The complainant paid a sum of Rs. 76,000/- to Satyam vide demand draft No. 489160 dated 2nd September, 1999 through State Bank of Patiala, Manimajra, Chandigarh and Rs. 42,558/- to the DoT vide demand draft No. 779816 dated 21st October, 1999 through State Bank of Patiala, Manimajra, Chandigarh. Satyam was to provide the dedicated 64 Kbps leased line link within 12 weeks from the date of entering into the Service Level Agreement. It was assured to the complainant that band width will be for 24 hours with 98% uptime through the dedicated 64 Kbps leased line link. The complainant has alleged that the Satyam delayed the installation process by a period of more than 2 months causing huge financial losses to the complainant on account of loss of revenue, payment of the rent of premises, and other expenses for the said period (Annexure C-2).

Right from the first day of the installation of 64 Kbps leased line link, the complainant did not find the said dedicated 64 Kbps line link to be working. As per the commitments and assurances by Satyam in Service Level Agreement, the complainant experienced down time in the said dedicated 64 Kbps leased line link frequently and often for extended periods in a single working day from the said commissoining date till date. Similarly, the complainant experienced very low band width throughout the said uptime from the said commissioning date till date. The complainant further alleged that the Satyam did not honour the Service Level Agreement from the very first day by not providing access to Internet fully, as committed and assured in the same. Access to Network News Transfer Protocol (NNTP) was disabled by Satyam and the fact was admitted by their officials at Chandigarh when it was brought to their notice. Despite repeated reminders, the same was not provided till date.

THE complainant has averred in Para 11 of the complaint that uptime was nowhere near 98% from the first day after the official commissioning of the said dedicated 64 Kbps leased line. THE downtime was up to more than 10 hours in a day. Satyam confirmed in the faxes dated 15th February, 2000 and 21 February, 2000 that the said service of the dedicated 64 Kbps leased line was not functioning in desired capacity. Due to this, an alternative routing plan through International Private Leased Circuit (IPLC) was assured to the complainant within 3-4 weeks (Annexures C4 and C5). However, the same commitment was not honoured. It has further been alleged that Satyam defrauded and cheated the complainant by committing and assuring the complainant of the services of the said dedicated 64 Kbps leased line will be provided as per the Service Level Agreement, and were fully aware of the fact that it would be impossible for Satyam to provide the said services, since they were highly dependent on Videsh Sanchar Nigam Limited (VSNL), a fact that was admitted in a fax dated 15th February, 2000. THE routing was shifted to Bombay from 6th May, 2000. Satyam failed to provide the said service i.e. dedicated 64 Kbps leased line which continued to provide unsatisfactory performances to the complainant. After few days of shifting of the routing to Bombay, the routing was again partially shifted back to Delhi on 12th May, 2000 after a short duration without fully testing the performance through Bombay. In the end, the complainant has averred that the said dedicated 64 Kbps leased line link was the Unique Selling Point (USP) of the complainant and the complainant was solely dependent upon Satyam for the said service, who discontinued the service with effect from 16th June, 2000 without any prior notice causing huge financial and credibility losses to the complainant since then till date as LOGIN Cybercafe is unable to function without any alternative. The complainant''s equipment consisting of one piece of Modern (RAD ASM 31) and two pieces of Modern (RAD ASM 31) are still lying with Satyam and DoT. The complainant has alleged that it has suffered an irreparable loss of credibility, loss of clientele and intense and sustained mental torture on account of its association with Satyam for the provision of the services of which the complainant is directly dependent on the services being provided by Satyam. The total amount of the loss has been calculated and placed on record as Annexure C-8. The complainant has alleged that there is gross negligence on the part of Satyam and VSNL and has, therefore, prayed that the complainant be compensated for the value of Rs. 19,94,000/- and any other compensation or award which the Commission may deem fit.

THUS, it has been averred in the replication that the delay occurred on the part of Satyam caused huge financial losses to the complainant. The complainant has denied having received the e. mail dated 20.1.2000, 22.5.2000 and has averred that they never received any prior notice Satyam disconnected the said services. All other charges averred in the reply of the opposite party Nos. 1 and 2 have been denied by the complainant in his replication. In reply, filed on behalf of opposite party Nos. 1 and 2, Satyam has raised preliminary objections saying that at the outset the complaint filed by the complainant is false, frivolous, vexatious, not maintainable, without jurisdiction and hence the same is liable to be dismissed with costs. In para 2 of the preliminary objections it has been averred by Satyam that the complainant has concealed material facts relating to the agreement reached between the complainant and Satyam. Satyam had agreed to allocate one 64 Kbps port for M/s. Amit Fabrics Private Limited (Universal Cyber Infoway Ltd.) at the router of Satyam at SCO 146-147, Sector 34, Chandgarh. Satyam assured 98% uptime on availability of the above 64 Kbps port dedicated to the complainant. These have been specifically provided in Clauses 2 and 9 of the Service Level Agreement signed between the complainant and Satyam.The obligations assumed by Satyam is restricted to the said 98% uptime is in regard to the 64 Kbps port/router maintained by Satyam and does not extend to things under the control of DoT and VSNL. It was never intended by the parties that Satyam will undertake the availability of the entire network from the place of work of the complainant to the entire world with 98% uptime. Satyam cannot assure such 98% uptime of the entire internet network which are managed by innumerable other persons including VSNL which at the relevant time was at the monopoly for telephone and internet gateways from and to India. The complainant is deliberately trying to confuse the matter relating to 64 Kbps port maintained by Satyam for the complainant with other matters such as link with DoT, VSNL internet gateway, etc. over which Satyam had no control. Satyam had maintained the 64 Kbps port for the complainant with 98% uptime as per the agreement between the parties and there has been no default or failure on the part of Satyam in regard to the said obligations. Satyam cannot be held responsible for lack of proper availability of DoT link or VSNL gateways or other external factors over which Satyam has no control. In Para 3 of the reply, it has been alleged that the complainant has failed to pay outstanding dues to the tune of Rs. 3,14,000/- which was billed till that time. The service was suspended on 16.6.2000 on account of default on the part of the complainant in making the payments. Satyam is initiating legal proceedings against the complainant for non-payment of the dues which amount to approximately Rs. 2,36,000/- for the period of service from 24.11.1999 to 16.6.2000.

ON merits, Satyam have craved reference to the Service Level Agreement between the complainant and Satyam and other related documents at the time of hearing in regard to the scope and nature of agreement signed between the parties. The order was confirmed by the complainant on 28.8.1999. The agreement was put to operation on 2nd September, 1999 when the complainant made the advance payment of Rs. 76,000/- (Annexure R-2). In Para 5 of the reply it has been averred that the complainant failed to pay outstanding dues of Rs. 3,14,000/- which was billed upto 16.6.2000. The service was, therefore, suspended on account of default on the part of the complainant on making the payment. It is further averred that as per the Clause 13 of the Service Level Agreement, it was stipulated that a lease line typically takes about 12 weeks for commissioning the agreement and was put into operation on 2nd September, 1999 after the complainant had made the advance payment. The complainant, it has been alleged, was responsible for delay in payment of advance amount till 2nd September, 1999 after signing the Service Level Agreement on 1st July, 1999. The complainant had asked for change in DoT Link, namely, from the four-wire leased line circuit to two-wire leased line circuit on 16.9.1999 and the installation was completed on 24.11.1999.

IN para 9 of the reply, Satyam has made a reference to the preliminary submissions in regard to the scope of Clauses 2 and 9 of the Service Level Agreement. It was also assured that this physical port shall not be shared with any other customer and will be available 98% uptime. As far as band width is concerned, all private internet service providers are getting band width from VSNL as it was only available source at that time. No band width taken from VSNL was given by Satyam as they have no control over the matters handled by DoT or VSNL or any other person connected with the internet network. Satyam can assure uptime availability only in regard to the 64 Kbps port and not with reference to the work to be undertaken or the service to be rendered by the DoT, VSNL and others. Satyam has averred in para 17 of the reply that the services were disconnected on 16.6.2000 after due notice to the complainant and its failure to pay the sum of Rs. 3,14,000/-. The copies of the letter dated 16.6.2000 and e. mail dated 20.1.2000, 22.5.2000 sent Satyam calling upon the complainant to make payment of the outstanding amount, are placed on record as Annexure R-2. In para 18 of the reply, Satyam has confirmed that one Modern Radasm 31 of the complainant is lying with it and two Modems of the complainant are lying with the DoT. The complainant is entitled to collect the Modem lying with Satyam after making payment of all outstanding bills. It has been denied that Satyam never issued any bill for the sum of Rs. 3,14,000/-. The complainant had paid Rs. 76,000/- to Satyam for DoT loop rental charges. However, the sum was also not deposited with DoT by Satyam and the complainant had to deposit the sum with the DoT independently. Satyam has averred that there is no deficiency in service on its part and it is denied that the amount of Rs. 19,94,000/- has become payable as alleged or otherwise. The complaint, therefore, is liable to be dismissed.

We have heard Mr. Vishal Singal, learned Counsel for the complainant and the learned Counsel for the opposite party Nos. 1 and 2, Mr. Sanjiv Pabbi, Mr. G.C. Babbar, Advocate appeared for the opposite party No. 3 and we have perused the documents and evidence on both the sides placed on record.

LEARNED Counsel for the complainant alleged that Satyam did not provide the dedicated 64 Kbps leased line link and did not keep up its promise for 98% uptime through the dedicated 64 Kbps leased line link. He drew our attention to Annexure C-1 regarding the Service Level Agreement for 64 Kbps leased line between Satyam and Amit Fabric Ltd. The learned Counsel for the complainant has further drawn our attention to Annexure C-8 which relates to calculations of the losses suffered by the complainant Company which comes to Rs. 19,94,000/-. He contended that the opposite parties never raised the bill of Rs. 76,000/- against the complainant Company. The payments are made half-yearly at the end of the sixth month. He referred to a number of letters and fax messages which the complainant Company sent to the opposite parties. In the end he vehemently pleaded that the opposite parties have indulged in the gross deficiency in service, hence the complainant Company should be compensated for 19,94,000/- as prayed in the complaint. Learned Counsel for the opposite party Nos. 1 and 2, Mr. Sanjiv Pabbi, Advocate has denied and charges levelled against opposite party Nos. 1 and 2 and has alleged the mere fact that the complainant and opposite party Nos. 1 and 2 are business organisations and carry out business dealings with the public, hence cannot be assumed to be consumer. On this fact only, the complaint is liable to be dismissed as it does not fall within the ambit of Consumer Protection Act, 1986. The learned Counsel for the opposite party Nos. 1 and 2 drew our attention to the definition of the consumer given in Sections 2(1)(d)(i) and (ii) and 2(1)(o) of the Consumer Protection Act which reads as under : "2(1)(d) "Consumer" means any person who- (i) buys any goods for a consideration which has been paid or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or (ii) [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are available of with the approval of the first mentioned person. "2(1)(o) "service" means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board, or lodging or both [housing constructions] entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service."

OUR attention has also been drawn to paras 2, 9 and 10, 15 and 16 of the Service Level Agreement which is reproduced as under : "2. The Service Provider would allocate one 64 Kbps port for the Amit Fabrics at the Service Provider''s router located at SCO 146-147 Sector 34, Chandigarh. 9. The Service Provider assures 98% uptime on availability of the 64 Kbps Satyam Port dedicated to the Amit Fabrics at the Service Provider Network in SCO 146-147, Sector 34, Chandigarh. 10. Satyam Infoway Ltd., will not be responsible for any downtime of the DoT Leased Line Link, between the Amit Fabrics'' premise and our node. While calculating the Network uptime, the time for which the Local Link is down, will not be considered." 15. The Billing period begins from the date of commissioning of the service. 16. The billing quarters are calculated with effect from the date of commissioning."

The learned Counsel for the opposite party Nos. 1 and 2 raised a legal point regarding the breach of contract between the two business organisations. He contended that it is an established law that if there is a breach of contract between the parties, the case lies with the Civil Court and not with the Consumer Redressal Agencies and hence the complainant should have sought redressal at the appropriate legal authorities. He further submitted that there is no deficiency in service on the part of Satyam, hence the complaint is liable to be dismissed. Mr. G.C. Babbar, Advocate appearing for the opposite party No. 3, DoT contended that DoT had nothing to do with the whole case. The main dispute is between two business enterprises, hence opposite party No. 3 has unnecessarily been impleaded in the present case. There is no contract signed between DoT and the complainant. DoT is only responsible to Satyam and not the complainant.

PARAS 2, 9 and 10 clearly show that the service provider i.e. Satyam Infoway Limited had proposed to allocate 64 Kbps port for the Amit Fabrics at the Service Provider''s router i.e. Kbps. Satyam according to the contract is also responsible for any downtime of the DoT Leased Line Link. All these have been provided by the Service Providers i.e. Satyam Infoway Limited. The contention of the complainant that the billing period is for six months is not true. According to paras 15 and 16 of the Service Level Agreement, it is clear that the billing period begins from the date of the commissioning of the service and the billing quarters are calculated w.e.f. the date of commissioning. In other words, the billing is quarterly. The law is well established as to who is a consumer. In case the two business organisations are dealing in goods then they are considered to be consumers under Section 2(1)(d)(i) of the C.P. Act. However, if the business organization like the complainant, Universal Cyber Infoway Ltd. are conducting business for the matters relating to services, they are consumers under Section 2(1)(d)(ii) of the C.P. Act. In view of this, the contention of the complainant not being consumer is not acceptable. This is also an established fact that under the Contract Act, if there is breach of contract then the case does not fall under the C.P. Act. However, in case, in the breach of contract there is a deficiency in service then it definitely fals under the C.P.Act.

IN view of the foregoing discussion, we are of the considered opinion that the opposite party No. 1 - Satyam INfoway Ltd. has adhered to the Service Level Agreement in toto. It is merely the fault of the complainant, who did not pay the requisite amount and clear the bills for a sum of Rs. 3,14,000/- which were due for which the services were rightly disconnected by Satyam. No deficiency in service on the part of Satyam has been established. The complaint is devoid of merit and is resultantly dismissed with no order as to costs. Copy of this judgment be sent to the parties free of charges. Complaint dismissed.