State Consumer Disputes Redressal Commission
Bhagwati Foods Pvt. Ltd. vs Porsche on 4 July, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/313/2014 1. Bhagwati Foods Pvt. Ltd. 24, Hemanta Basu Sarani, Suite no.205, 2nd Floor, near Mangalam Building, Kolkata-700 001 & also at 305, Mangalam-A, 24, Hemanta Basu Sarani, 2nd floor, Kolkata-700 001. ...........Complainant(s) Versus 1. Porsche Dr. Ing H.C.F. Porsche, AG Porscheplatz 1, 70435 Stuttgart, Federal Republic of Germany & also at Porsche India, Silver Utopia, 3rd floor, Cardinal Gracious Road, Chakla, Andheri East, Mumbai-400 009, Maharashtra. 2. Shreyans Motors Pvt. Ltd. A-31, Mohan Co-operative, Mathura Road, New Delhi-110044 & also at 401C Poonam Chambers, Worli, Mumbai, Maharashtra-400 018. 3. Maneesh Raseen, Manager Sales, Porsche Centre New Delhi, 50-B Diplomatic Enclave, Chanakyapuri, New Delhi-110021 & also at Porsche Centre, New Delhi, A-31, MICE, Mathura Rd., New Delhi-110044. 4. Ujjwal Sampat Chordia, Director, Shreyans Motors Pvt. Ltd. Unit No. 3, Chacellor Court Chs. Ltd., Plot no. A/88, Carmichael Rd., Mumbai-400 026. 5. Ashish Chordia, Director, Shreyans Motors Pvt. Ltd. Unit No. 3, Chacellor Court Chs. Ltd., Plot no. A/88, Carmichael Rd., Mumbai-400 026. 6. Axix Bank Ltd. Trishul, 3rd Floor, opp. Samartheswar Temple, Law Garden Ellisbridge, Ahmedabad, Gujrat & Br. at India House, 69 Ganesh Chandra Avenue, 2nd Floor, Kol-700 013. ............Opp.Party(s) BEFORE: HON'BLE MR. SHYAMAL GUPTA PRESIDING MEMBER For the Complainant: Mr. Ved Sharma Mr. Maheswari Sharma , Advocate For the Opp. Party: S. K. Sharda., Advocate Mr. Prasanta Banerjee , Advocate Dated : 04 Jul 2017 Final Order / Judgement Sri Shyamal Gupta, Member
This complaint is filed over alleged non-delivery of ordered car by the OPs.
Briefly stated, case of the Complainant is that it booked a luxury car with the OPs by entering into an agreement in this regard in or about July, 2011. Thereafter, on receipt of proforma invoice, the Complainant paid a sum of Rs. 5,00,000/- to the OP No. 2 as a booking money. Subsequently, it was noticed that certain essential components which the Complainant wanted to be installed in the said car were missing and so, after accommodating the modifications/alterations/additions suggested by the Complainant, a revised invoice for a sum of Rs. 96,78,000/- was issued on 18-08-2011. It is alleged that despite receipt of full payment, the vehicle is yet to be delivered. Instead by sending a mail on 06-06-2012, the OP No. 3 asked for extra payment on account of changes in import tariff. However, this being unacceptable to the Complainant, it filed the present complaint.
OP No. 1 contested the case by filing WV. Denying all the material allegation of the complaint, it is stated that it was appointed as importer of Porsche vehicles, parts and accessories in India by Porsche Middle East and Africa FZE w.e.f. 01-04-2012. Prior to the said date, the OP No. 2 was the dealer with the previous importer of Porsche cars in India. It is stated that the purported cause of action of the present complaint arose prior to the said date when this op was appointed as importer of Porsche vehicles. The this OP claimed that it was not involved in the sale or purchase transaction of vehicle pertaining to the Porsche brand prior to said date. Therefore, it is not a party to the case. It is further stated that the Complainant paid the price of the said vehicle to the OP No. 2 for the purchase of the said vehicle and not to this OP. As such, the Complainant cannot be considered as a consumer of this OP. Also, from bare perusal of the complaint itself it appears that there was no allegation either directly or indirectly made against the OP No. 1. According to this OP, at the relevant time when the transaction for sale of the vehicle was purported took place and price of the vehicle purportedly paid by the Complainant to the OP No. 2, the OP No. 1 was neither an importer of the Porsche brand cars. Contending inter alia that it has no contractual obligation towards the Complainant as neither it received any amount from the Complainant for the said vehicle nor it had assured to deliver the vehicle to the Complainant. Hence, there is no liability as such on the part of the OP No. 1 either to deliver the vehicle to the Complainant or to refund the consideration amount for the said vehicle which was in fact never paid to the OP No. 1, but to the OP No. 2.
OP No. 6 also contested the case by filing WV. It is the case of this OP that it merely advanced financial assistance to the Complainant. Stating that the Complainant has not made any allegation against it, this OP prayed for dismissal of the case against it.
Decision with reasons At the very outset, it bears mentioning here that despite due service of notice upon all the OPs, only the OP No. 6 contested the case all through. OP No. 1 though initially appeared and filed its WV, thereafter it stayed away from taking part in the present proceedings.
It is the case of the OP No. 1 that it was appointed as the only importer for Porsche vehicles w.e.f. 01-04-2012. In support of such contention, it has placed on record photocopy of a public notice dated 06-07-2012 to this effect. According to this OP, the consideration amount was paid to the OP No. 2 by the Complainant way back in the year 2011 itself. Thus, while it did not receive any consideration money from the Complainant nor entered into any contract with the Complainant for the purpose of delivery of desired vehicle, it cannot be held responsible in any manner for the misfortune of the Complainant.
On a thoughtful consideration of the contention of the OP No. 1, I do find merit in such contention. The Complainant has not filed any counter document to belie the contention of the OP No. 1. Accordingly, I am of opinion that the OP No. 1 cannot be held liable in any manner to make good the loss of the Complainant.
As for the OP No. 6 also I find that the bank religiously discharged its contractual obligation by rendering due financial assistance to the Complainant. Therefore, under any circumstances it also cannot be held responsible for the non-delivered of the subject vehicle.
However, this cannot be said about other OPs, viz., OP Nos. 2 to 5. Documents on record sufficiently prove that despite receipt of consideration money from the Complainant, these OPs have not discharged their contractual obligations towards the Complainant. In my considered view, therefore, these OPs are jointly and severally responsible to refund the price of the vehicle to the Complainant together with other reliefs.
The complaint, accordingly, succeeds.
Hence, O R D E R E D that CC/313/2014 be and the same is allowed ex parte against the OP Nos. 2 to 5 and dismissed on contest against the OP No. 6 and ex parte against the OP No. 1. OP Nos. 2 to 5 are directed to refund the consideration money paid by the Complainant within 40 days from the date of this order together with simple interest @ 9% p.a. on the entire paid up money w.e.f. 03-09-2014 till full and final payment is made. Besides, they are jointly and severally liable to pay Rs. 50,000/- being litigation cost within the aforesaid stipulated time frame. [HON'BLE MR. SHYAMAL GUPTA] PRESIDING MEMBER