State Consumer Disputes Redressal Commission
Hari Darshansevashram Private Ltd. vs Porsche Centre New Delhi on 12 March, 2013
IN THE STATE COMMISSION :
DELHI
Date of Decision :
12.3.2013
Complaint No. C-12/224
Hari DarshanSevashram Private Ltd.
Office at 519, Patparganj Industrial Area,
New Delhi-110 092
..Complainant
VS
1.
2.
3.
4.
5.
Porsche
Centre New Delhi
50-B,
Diplomatic Enclave,
Chanakyapuri,
New Delhi-110 021
Shreyans
Motors Pvt. Ltd.
Porsche
Centre New Delhi
A-31, Mohan
Co-Oprate Ind. Estate,
Mathura Road,
New Delhi-110 044
Porsche
Automobile Holding SE,
Through
Mr. BerNhard
Maier,
Executive
Vice President Sales and Marketing of
Dr. ING. H.C.F. Porche AG,
Porscheplatz 1,
70435 Stuttgart,
Germany
Porsche Middle East & Africa
Through
Mr. George Wills,
Managing Director
4th Floor E-401 S Marg
Dubai Silicon Oasis
P.O. Box 341356 110092
United Arab Emirates
Porecision Cars India Pvt. Ltd.
Through Mr. James Bourne,
Managing Director
3, District Centre, Jasola,
3rd Floor, New Delhi-110 025
6-Porche Centre Mumbai,
Through
Mr. Declan Maclaughlin,
Brand Manager,
13, N.S. PatkarMarg,
Kemps corner,
Mumbai-400 007
CORAM
Salma Noor, Member
V.K.Gupta, Member(Judicial)
1. Whether reporters of local newspaper be allowed to see the Judgment
2. To be referred to the reporter or not?
V.K.GUPTA, MEMBER(JUDICIAL)
1. This is a complaint under Section 12 of the Consumer Protection Act, 1986.
2. Briefly stated factual scenario is that complainant is a private limited company registered under the companies Act, 1956 having registered office at 519, Patparganj Industrial Area, New Delhi and ShriPankajNagdev, is the Director of the company who is fully authorized to sign and verify all the applications and the complaints, who has been authorized by the Board of Directors of the Company on 5.1.2012. The OPs are engaged in the business of manufacturing, production and distribution, service sales, import and booking for worldwide luxury four wheeler brand, under the name Porsche. The OP No.3 is the parent company of all the subsidiary companies of Porsche manufacturing the aforesaid vehicle. The OP No.1 is having show room and booking office in New Delhi and OP No.2 is the dealer for Porsche and manages the Porsche centre in Delhi. OP No.5 is the official importer of the said vehicle since 2007. The complainant approached the OPs through M/s Shreyans Motors pvt. Ltd., OP No.2 for purchasing a Porsche Cayenne s. Hybird, 3000CC, 380 bhp (Stand White Exterior and Black Standard Interior) for the personal use of the Director of the complainant. The OP No.1 has provided the Performa Invoice and the related documents to the complainant whereupon the complainant paid Rs.10,00,000/- (Rupees Ten lakh) as the booking amount, for which the OP No.1 issued receipt No.2127 dated 29.12.2010. The total price of the said vehicle was Rs.1,03,35,240/- inclusive of all the taxes, registration and insurance charges. The OP could not arrange a Demo car for display for the reason best known to it, which resulted the delayed delivery.
Consequently the complainant had to book Porsche Cayenne V6 Diesel, 3000CC, 24 bhp (Jet Black Exterior and Black Standard Interior) on the basis of fresh Proforma Invoice provided by the OPs.
The total sale consideration of this car was Rs.87,27,290/- inclusive of all the taxes, registration and insurance charges. It was promised that the vehicle shall be delivered at the end of the month of July, 2011. However, on 6.5.2011 the complainant informed the OP that they have not given a clear picture of their car whether it is going into production or the payment schedules or the delivery date of the car. The complainant was made to do all follow ups with OPs, which the OP was to do so.
The complainant started facing problem for the updates on the production and delivery of the said car, whereupon the OPs vide letter dated 75.2011 and 8.5.2011 tendered apology to the complainant for the lack of communication. The OP No.1 vide letter dated 12.5.2011 confirmed that the car, which was booked by the complainant had secured a production slot and scheduled for June, 2011 production and also attached the revised and final performa invoice. The complainant, during a meeting with the OPs on 8.6.2011 was told to make complete payment for the case, if the complainant wanted to avoid losing the production slot for the said car in June, 2011, which was a utter shocking and surprising in as much as the complainant was never informed about the exact payment schedule. The complainant further insisted the OP to disclose the actual status of the car and also requested for the entire payment schedule. The complainant had booked the car about 8 months back, but the schedule payment plan has not been submitted. The OPs were aware and in their knowledge that the complainant had taken a loan of Rs.65,75,000/- from DhanLaxmi Bank Delhi for making further payment of Rs.61,37,660/-. The said amount was duly remitted to the OPs and receipt No.2865 dated 22.7.2011 was issued by the OP No.2 to the complainant. The OP vide letter dated 23.7.2011 has confirmed the delivery of the vehicle in Oct., 2011. The complainant many times requested the OPs to provide the production details break up of payment qua invoice, taxes and import duties, but the OPs have not provided the same despite nine letters written to the OPs. The OPs demanded Rs.10,86,340/-, which was also paid and receipt No.3054 dated 21.9.2011 was issued by OP No.4. The OPs illegally malafidely in order to achieve their ulterior motives of making wrongful gain and causing wrongful loss and damages to the complainant without any reason what so ever, had cancelled the order of the complainant for purchase of Porsche Cayenne V6 Diesel, 3000CC, 24 bhp (Jet Black Exterior and Black Standard Interior). The OPs further asked the complainant to furnish bank details for the purpose of the refund.
Since the complainant has fulfilled all the terms and conditions of the agreement executed between the OP and the complainant, therefore, the OP had no right to cancel the order of the complainant despite the fact that an amount of Rs.61,37,660/- was paid to the OPs, which was taken by the complainant as a loan. The amounts to cheating and criminal breach of trust by the OP in as much as the OP has already received the entire amount from the complaint in terms of the invoice No. PCND 800323 DATED 9.3.2011. The amount of Rs.61,37,660/- has already been transferred to the OP, on which the complainant is paying interest of Rs.2,15,520/- per month towards the entire car loan for thirty six months. The complainant claims Rs.14.43,529/-, the payment made by the complainant to the bank, and also Rs.20,00,000/- as compensation for mental agony, harassment and sheer suffering along with interest @ 18% p.a.
3. OP No.1 has not filed any written statement.
4. OP No.2 and 5 filed the joint written statement and denied the entire allegations. It is contended that the State Commission has no jurisdiction to entertain the complainant in as much as there was an agreement that all legal proceedings in respect of any matter covered by this order shall be decided by the courts in Mumbai to the exclusion of any other court. The complainant is not a consumer under Section 2(1)(d) of Consumer Protection Act, 1986 in as much as the vehicle in question is required for the commercial purpose and not for the personal use. The complainant is not entitled to file the complaint, as there is no Resolution of the Board of Directors. The complaint is bed for mis-joinder of the parties.
Further the complainant is guilty of suppression veri and suggisti falsi as the complainant has not come with the clean hands. The complainant has not disclosed the cause of action. There is no willful and deliberate deficiency in service or any intentional and purposeful unfair trade of practice. The complainant has not purchased Porsche Cayenne s. Hybird, 3000CC, 380 bhp (Stand White Exterior and Black Standard Interior). It is admitted by OP No.2 & 5 that vide letter dated 12.5.2011revised performa invoice for an amount of Rs.83,24,000/- inclusive of road tax and insurance charges was sent to the complainant. It is further admitted that e-mail dated 14.7.2011 was sent by the complainant. It is also admitted that the complainant had taken a loan of Rs.65,75,000/- from the bank.
The complainant has not fulfilled the terms and conditions of the contract. Op No.2 & 5 have a right to cancel the order placed by the complainant, and there is no financial loss or any physical and mental harassment. The OP No.2 & 5 have not committed any cheat or criminal breach of trust. The booking made by the contract in respect of the purchase of vehicle has been cancelled in accordance with the sale contract, therefore, the complaint is liable to be dismissed. Further DhanLaxmi Bank, from whom the loan has been taken by the complainant for the payment of the price of the car, has not been made a party in this proceedings.
The complainant is not entitled to claim any compensation. It is admitted that the complainant has made a complaint with the Police Station, ChanakyaPuri, New Delhi, and the matter was investigated and the police came to know that the OP No.2 has refunded the entire amount to the complainant, therefore, the closure report in the said criminal case was made by the police.
The OP remitted the sum of Rs.8,35,525/- to the complainant. The entire amount paid by the complainant has been refunded by OP No.2, and therefore, there is no amount due and payable by the OPs. The complainant is not entitled to claim an amount of Rs.14,43,529/- along with any compensation.
5. OP No.3 & 4 filed the joint written statement and denied all allegations. They contended that the complainant is not a consumer underSection 2(1)(d) of Consumer Protection Act, 1986.
There is no breach of contract between the complainant and OP No.3 & 4 and the complaint is bed for non joinder of the parties. OP No.3 is the manufacturer of Porsche Cayenne car in Germany and does not maintain hot deal with customers either directly or indirectly. OP No.4 is a subsidiary of OP no.3 incorporated in U.A.E. OP No.4 used to either his car to OP No.5, therefore, the OP No.5 is the agent of OP No.4. The OP No.1,2& 5 are the dealers of OP No.5, which are directly controlled by OP No.5. The vehicles booked through OP No.1,2& 5 were imported into India by OP No.5. OP No.4 had been receiving several other complaints against OP No.5, and its various dealers, including OP No.2, therefore, OP No.4 has since terminated its agreement with OP No.5 w.e.f. 1.4.2012.
OP No.5 had unsuccessfully challenged the termination of the agreement by OP No.5. Therefore, neither OP No.4 nor OP No.3 are liable to pay any amount including the compensation.
6. The complainant has filed the rejoinder and denied the fresh allegations of the OPs in the written statement.
7. Both the parties have filed the evidence by way of their affidavits.
8. We have heard Ld. Counsel for both the parties and perused the material on record.
9. The Counsel for the OPs very vehemently argued that the complaint is not maintainable in as much as it is not a consumer within the meaning of the Section 2(1)(d) of Consumer Protection Act, 1986. It is pointed out by the Counsel for the OPs that it is a commercial transaction, which is beyond the ambit and scope of Section 2(1)(d) of Consumer Protection Act, 1986. On the other hand, it is argued by the Counsel for the complainant that it is not a commercial transaction and the vehicle in question was being booked and purchased for the personal use of the Director. The material on record goes to show that the present complaint is filed by Shri Pankaj Nagdev, one of the Director of the complainant company, who has singed and verified the complaint. In para No.5 of the complaint, it is very categorically and specifically mentioned that the vehicle to be purchased from OP No.2, and to whom the payment has been made, was meant only for the personal use of Shri Pankaj Nagdev, Director of the company. This goes to show that the vehicle in question is not meant for the commercial purpose. Had it been so, it must have been mentioned in the complaint and the very purpose of the use of the vehicle is a personal for the Director of the Company with the exclusion of the commercial purpose. This averment has been made in the affidavit of the complainant also.
The OP has not filed any evidence to rebut the averment made by the complainant in the complaint. Therefore, we are convinced that the vehicle in question is for the personal use of the Director of the Company and the transaction is within the meaning of Section 2(1)(d) of Consumer Protection Act, 1986, hence the complainant is a consumer.
10. A feeble attempt by the counsel for the OP has been made that the complaint has been filed by HariDarshanSevashram Pvt. Ltd., registered under the Indian Companies Act, but ShriPankajNagdev has not been authorized to file the said complaint, therefore, the complaint is not maintainable. This argument is devoid of all force. Admittedly ShriPankajNagdev is the director of HariDarshanSevashram Pvt. Ltd. and he has been authorized to conduct the legal proceedings and to file the complaint on behalf of the company in terms of the resolution of Board of Directors of the complainant company in January, 2012. The Counsel for the OP has invited our attention that the date of January is not mentioned, to this Counsel for the complainant submitted that this is 5th January, which has been inadvertently left out in the complaint, which is a typographical mistake, for which the complainant could not be punished.
It may be mentioned that the Counsel for the complainant has very specifically and categorically mentioned that the date is 5th January, on which the Board of Directors of the Company has passed the resolution. Therefore, the complaint is maintainable.
11. In this case some of the facts are admitted.
It is admitted by both the parties that the complainant booked Porsche Cayenne s. Hybird, 3000CC, 380 bhp (Stand White Exterior and Black Standard Interior) for a total sale consideration of Rs.1,03,35,240/-, but when an inquiry was made from the OP no demo of the car was given nor any payment schedule was made, however some correspondence took place and instead of previous car, the complainant had booked the other car Porsche Cayenne V6 Diesel, 3000CC, 24 bhp (Jet Black Exterior and Black Standard Interior) for a sale consideration of Rs.87,27,290/-. It may not be germane to mention that the complainant has also filed the copies of the invoices which are on record.
12. The complainant has also filed the copy of the receipt No.2127 dated 29.12.2010, by which an amount of Rs.10,00,000/- has been paid by the complainant to M/s Shreyans Motors pvt. Ltd., OP No.2. The complainant has also filed various copies of the letters, which are sent to the OPs making inquiry with regard to the schedule of payment, but at no time any detail was furnished by any of the parties and the booking was cancelled.
13. It is also an admitted case of both the parties that the complainant took a loan of Rs.65,75,000/- from DhanLaxmi Bank, Delhi on an interest of Rs.12,5% p.a. for a period of 36 months. Out of this amount, Rs.61,37,660/- was paid to M/s Shreyans Motors pvt. Ltd., OP No.2, which issued receipt No.2865 dated 22.7.2011, which goes to show that the entire sale price has been paid by the complainant, but it remains empty hands in as much as that despite the amount received by the OPs, the booking of the car was cancelled without any reason and for the reason best known to the OPs. It is significant to note here that the OPs have not mentioned anywhere, at any point of time in the WS, as to why the booking of the car was cancelled despite of the receipt of the entire amount knowing willfully that the complainant has taken a loan of Rs.65,75,000/- and paying interest @ 12.5% p.a., out of which an amount of Rs.61,37,660/- was paid to OP No.2 M/s Shreyans Motors pvt.Ltd.On 22.7.2011. The complainant has filed the re-payment schedule of loan to DhanLaxmi Bank, which goes to show that the complainant has to pay an amount of interest to the bank of Rs.2,15,520/- p.m. and up to the date of refund of the amount, the complainant has paid Rs.14,43,529/- (paper No.14) to the bank in respect of the payment of the loan, which is a clear result of the deficiency of the service, and adoption of the unfair trade practice on the part of the OPs.
14. So far as the amount of compensation is concerned, the complainant has claimed Rupees twenty lakh as compensation for mental agony, harassment and sheer suffering and Rs.55,000/- as the litigation charges.
There is no denying the fact that the complainant has paid the entire amount of car to the tune of Rs.87,00,000/- to the OP No.2, but the said OP No.2 in connivance of other OPs played a foul role to achieve wrongful gain to them and wrongful loss to the complainant, who is deprived of the use of the said amount. There is a sheer misuse or abuse of the amount paid by the complainant to the OP and the complainant had to obtain a loan of Rs.65,00,000/- for the DhanLaxmi Bank.
15. It is admitted case of both the parties that for the various offences including the cheat and criminal breach of trust committed by the OPs, the complainant had to knock the doors of the Police Station by lodging an FIR against the OPs. It is also an admitted case that during the course of investigation police made a compromise by settling that the entire amount received by the OPs shall be refunded to the complaint, which the complainant agreed and on account of this fact, the Police was compelled to submit the closure report. This shows the height of high handed and criminal intention on the part of the OPs, for which the complainant had to take recourse on the criminal side also.
16. The whole gamut of the above said facts and circumstances leans on the side of the complainant and taking into consideration the peculiar circumstances of the case we quantify the amount of compensation of Rs.15,00,000/-, inclusive of the litigation charges.
17. We hereby direct that
i) OPs jointly and severally shall pay Rs.14,45,529/- to the complainant.
ii) The OPs shall also pay Rs.15,00,000/- as compensation for mental agony, harassment and sheer suffering in view of the peculiar facts and circumstances of the case inclusive of the litigation charges.
(Salma Noor) Member (V.K.Gupta) Member(Judicial)