Delhi District Court
M/S Shomit Finance Limited vs M/S. Shreyans Motors Pvt. Ltd on 28 March, 2018
IN THE COURT OF GAURAV RAO, ADJ02 & Waqf Tribunal /
NEW DELHI DISTRICT, PATIALA HOUSE COURTS, NEW DELHI.
CS No. 58713/16 (Old no. 1284/14)
CNR No. DLND010101162016
M/s Shomit Finance Limited,
Stilt Floor, Devika Tower,
6, Nehru Place,
New Delhi110019s
..Plaintiff
Vs.
1. M/s. Shreyans Motors Pvt. Ltd.,
Porsche Centre,
A31, Mohan Cooperative Estate,
Mathura Road, New Delhi110044.
Through its Managing Director/Directors/
Authorized Signatories
Also at:
M/s. Shreyans Motors Pvt. Ltd.,
Porsche Centre ( Ashoka Hotel)
50B, Diplomatic Enclave, Chanakyapuri,
New Delhi110021.
2. M/s. Axis Bank Limited,
Retail Assets Centre,
4/6B, Asaf Ali Road, Near Delight Cinema,
New Delhi110002.
...Defendants
CS No. 58713-16 Shomit Finance Vs. Shreyans Motors Pvt. Ltd. and anr 1/28
Date of institution : 05.05.2014
Date on which reserved for judgment : 28.03.2018
Date of decision : 28.03.2018
Final Decision : Decreed
JUDGMENT
1. The present suit for recovery of Rs. 62,05,683/ has been filed by the plaintiff against defendant no. 1. Defendant no. 2 is a proforma party as no relief has been sought against it.
Plaint
2. It is the case of the plaintiff that it is a company duly incorporated under the Indian Companies Act, 1956 and is engaged in the business of building construction. It is its case that the present suit has been filed through its Authorized Signatory Mr. Anand Arya, who is duly authorized by way of a Board Resolution dated 2nd April, 2014 to institute, sign and verify the present suit.
2.1 It is further the plaintiff's case that defendant no. 1 is a company dealing in sale of high valued/imported cars including Porsche in New Delhi. It is further its case that defendant no. 2 is a bank rendering various financial services including car loans etc. to the public.
CS No. 58713-16 Shomit Finance Vs. Shreyans Motors Pvt. Ltd. and anr 2/28 2.2 It is plaintiff's case that it was looking to buy a car for its Directors and opted to purchase a Porsche car. It is further its case that one Mr. Balram Vaid, sales representative of defendant no. 1 company got in touch with it, representing that defendant no. 1 is the authorized dealer of Porsche cars in New Delhi and assured it of best deal i.e. best discounted price and early delivery of car.
2.3 It is further plaintiff's case that believing the repeated requests and representations made by sales representative of defendant no. 1 one Sales Contract was executed between it and defendant no. 1 on 08.12.2011 for one car of "Porsche" make i.e. " Cayenne (3.0) V6" model which was booked in its name for total consideration of Rs.74,47,000/ and as the car was to be imported expected date of delivery, as per sales contract, was fixed in the month of April/May, 2012.
2.4 It is further plaintiff's case that at the time of booking of the said car defendant no. 1 demanded some booking amount and it made advance payment of Rs.15,00,000/ through cheque No. 202072 dated 07.12.2011 drawn in the name of defendant no. 1 against which a money receipt bearing Sl. No. 3336 dated 10.12.2011 was also issued by defendant no. 1. It is further its case that defendant no. 1 acknowledged the said payment by way of Welcome Letter wherein assurance was given for early delivery of the booked car.
CS No. 58713-16 Shomit Finance Vs. Shreyans Motors Pvt. Ltd. and anr 3/28 2.5 It is further plaintiff's case that on 14.12.2011 Mr. Balram Vaid, Sales Manager of defendant no. 1 sent an email informing that the booked car has been manufactured with agreed specification and also provided vehicle identification number as WP1ZMB922CLA29691 and Engine No. as CRCA 038296 as well as request was made for payment of balance amount of the booked car.
2.6 It is further its case that the representative of defendant no. 1 persuaded and convinced it to take car loan through defendant no. 2 and accordingly, the defendant no. 2, under the scheme named as Power Drive ( Car Loan) opened Account No. AUR012600413294 with Customer ID 842421459 in its name and after execution of the required documents on 22.12.2011 the entire loan amount of Rs.40,00,000/ after deducting the processing fee of Rs.5605/ was transferred directly to the account of defendant no. 1 from defendant no. 2 through RTGS dated 29.12.2011 within a week of execution of loan documents. It is further its case that thereafter defendant no. 1 issued Money Receipt bearing Sl. No. 3412 dated 30.12.2011 for Rs.39,94,395/ towards the payment of booked car.
2.7 It is further its case that on 31.12.2011 defendant no. 2 issued a formal letter to the plaintiff giving details of the car loan account wherein the repayment schedule of the car loan was enclosed as per which the entire CS No. 58713-16 Shomit Finance Vs. Shreyans Motors Pvt. Ltd. and anr 4/28 loan was to be paid in 59 equated monthly installments.
2.8 It is further its case that despite repeated follow ups and requests including letter dated 12.04.2012 and payment of Rs. 54,94,395/ the car was not handed over to it and when it pushed very hard, just to entrap it in its illmotive, the defendant no. 1 on 01st September, 2012 refunded a meager sum of Rs.7,50,000/ through RTGS out of the paid amount of Rs.54,94,395/.
2.9 It is further plaintiff's case that vide communication dated 15.07.2013, defendant no.1 undertook to deliver the car within 15 days of receipt of payment of Rs. 30,72,105/ and persuaded it for revised Sales Contract dated 15.07.2013 under the pretext that the rates of the said car has been revised, now the exshowroom price was Rs.84,17,000/ and hence the revised Sales Contract need to be executed. It is further its case that being in no position to negotiate and to just avoid further loss and duress of recovery of money it agreed and executed the revised sale contract and terms of the payment and made the balance payment of Rs.30,72,105/ through RTGS on 15.07.2013 for which the defendant no. 1 issued money receipt No.4151 dated 15.07.2013.
2.10 It is further its case that despite revised sales contract and undertaking as well as inspite of repeated reminders, the defendant did not CS No. 58713-16 Shomit Finance Vs. Shreyans Motors Pvt. Ltd. and anr 5/28 fulfill its commitment of delivery of car by 30.07.2013.
2.11 It is further its case that thereafter on much persuasion, defendant no. 1 issued cheque no. 705066 dated 20.09.2013 in favour of the plaintiff for Rs.38,22,105/ towards refund of money directly paid by the plaintiff from its account and also promised that defendant no. 1 would get the loan amount of Rs.39,94,395/ transferred in its name and the name of plaintiff will be cleared from the accounts of defendant no. 2 and all the money of plaintiff paid to defendant no. 1 will hence get refunded. It is further plaintiff's case that however the cheque issued by defendant no. 1 got dishonored and after it strongly conveyed to defendant no. 1 that legal action for breach of trust, cheating, misconduct and misrepresentation will be taken against defendant no. 1, it issued a letter dated 11.10.2013 and provided a second hand 'Audi car' temporarily to the plaintiff as security for refund of the amount towards booked Car.
2.12 It is further its case that the said car was given only as a security against the amount which defendant no. 1 had assured to return within a short period and the said car was not intended to be transferred in the name of the plaintiff and its registration documents remained in the name of defendant no. 1 only.
2.13 It is further plaintiff's case that as defendant no. 1 did not refund CS No. 58713-16 Shomit Finance Vs. Shreyans Motors Pvt. Ltd. and anr 6/28 the amount even after assurances it reported the above incident giving details of all the transactions to the concerned police stations through complaints dated 25.10.2013 and 29.10.2013 for taking appropriate action against defendant no. 1.
2.14 It is further plaintiff's case that after vigorous persuasion through police officers via police complaint, defendant no. 1 refunded a sum of Rs.38,22,105/ on 25.10.2013 however the amount of Rs.39,94,395/ which was got transferred from defendant no. 2 to defendant no. 1 as disbursement of loan amount taken in the name of plaintiff towards purchase of the said car, is still to be refunded by the defendant no. 1 as no car was delivered as per the sales contract.
2.15 It is its case that non delivery of the booked car and thereafter non refund, blocking of money by defendant no. 1 caused financial loss to the plaintiff apart from agony, harassment to its Directors, Promoters etc. for whose use the car was meant.
2.16 Hence the present suit.
Written Statement of defendant no. 1
3. Defendant no. 1 in its written statement took preliminary CS No. 58713-16 Shomit Finance Vs. Shreyans Motors Pvt. Ltd. and anr 7/28 objections that the plaintiff has concealed the fact that it is in possession of the Audi A6 vehicle belonging to defendant no. 1 which has been damaged by it out of personal vendetta. It was pleaded that plaintiff has concealed letter dated 25.09.2014 of defendant no. 2, responded by the plaintiff vide letter dated 10.10.2014, as per which it was agreed by defendant no. 1 that they were agreeable to close the issue, however, the plaintiff has become greedy and does not want to return Audi A6 car in its possession nor wants the funds to be returned by defendant no. 1 to defendant no. 2 subject to delivery of Audi A6 car.
3.1 It was further pleaded that present suit is bad for misjoinder of parties as there is no privity of contract between the parties.
3.2 It was further pleaded that that the present suit is false, baseless, misconceived and frivolous in nature and has been filed with the sole intention of extorting money from defendant no. 1.
3.3 It was further pleaded that this court does not have any territorial jurisdiction to entertain the present suit as as per the sales contract all disputes pertaining to the sales contract shall be adjudicated by courts in Mumbai which have exclusive jurisdiction to entertain the present suit.
3.4 It was further pleaded that plaintiff has not approached the court CS No. 58713-16 Shomit Finance Vs. Shreyans Motors Pvt. Ltd. and anr 8/28 with clean hands, the plaint does not disclose any cause of action and suit has not been verified in accordance with law, hence, the present suit is liable to be dismissed.
3.5 It was denied that any amount whatsoever is due and payable to the plaintiff and it was pleaded that it was the plaintiff who had approached defendant no. 1. It was denied that defendant no. 1 ever informed the plaintiff that the agreed date of delivery would be April/May 2012 as exact date of delivery can never be committed as the vehicles are customized according to the customers. It was denied that defendant no. 1 had offered consultancy to arrange finance or that it convinced the plaintiff to take car loan through its known sources and introduced defendant no. 2 bank via its direct sales agent Auto Web (India) Pvt. Ltd.
3.6 It was pleaded that there were disputes between the manfacturers of the Porsche vehicle and defendant no. 1 and hence the car could not be delivered to the plaintiff. It was pleaded that since the plaintiff wanted to cancel the sales contract an amount of Rs. 7.5 lacs was refunded to it, even though as per the sales contract no amount was to be refunded in case of cancellation, as a goodwill gesture to maintain customer relation. It was further pleaded that even after the payment of Rs. 7.5 lacs plaintiff wanted the delivery of car and not the refund and accordingly the plaintiff placed an order and a revised sales contract was executed between plaintiff and CS No. 58713-16 Shomit Finance Vs. Shreyans Motors Pvt. Ltd. and anr 9/28 defendant no. 1.
3.7 It was further pleaded that the price escalation was due to increase in excise/other taxes for which defendant no. 1 is not liable and at the time of executing the sales contract plaintiff had agreed to pay the escalation in excise and other taxes.
3.8 It was denied that any undertaking was given by it and it was pleaded that cheque of Rs. 38,22,105/ was given merely as a security and it was not to be encashed.
3.9 It was denied that defendant no. 1 committed any breach of trust, cheating, misconduct and it was pleaded that plaintiff had came to its showroom and forced them to sign some blank documents and also threatened it with dire consequences.
3.10 It was pleaded that the Audi A6 vehicle belonging to defendant no. 1 was forcibly taken by the plaintiff and letter dated 11.10.2013 is a fabricated document prepared on blank document after obtaining the signature of defendant no. 1. It was pleaded that the plaintiff did not return the Audi A6 car and has caused damaged to it. It was pleaded that as the Audi car in the possession of the plaintiff is worth much more and damage has been caused to it no amount is due and payable by the defendant to the CS No. 58713-16 Shomit Finance Vs. Shreyans Motors Pvt. Ltd. and anr 10/28 plaintiff. It was pleaded that plaintiff is liable to return the said Audi A6 car which has been illegally retained by it.
3.11 It was denied that it has caused financial loss to the plaintiff or loss of business time. It was denied that there was any agony, harassment of its director or loss of opportunity to the plaintiff company.
Written statement of defendant no. 2.
4. It was pleaded that there are no allegations against it, no prayer has been sought against it and it is a proforma party.
4.1 It was further pleaded that plaintiff has defaulted in paying the scheduled EMI of the loan account and total amount of Rs.28,55,075/ is outstanding as on date against plaintiff and defendant no. 1 who are jointly and severally liable to pay the same.
Replication
5. In the replication plaintiff denied the averments of the written statements while simultaneously reiterating and reaffirming the contents of the plaint.
CS No. 58713-16 Shomit Finance Vs. Shreyans Motors Pvt. Ltd. and anr 11/28
6. During the course of trial defendant no. 1 stopped appearing in the court and vide orders dated 08.07.2016, passed by the Ld. Predecessor of this court, defendant no. 1 was proceeded exparte Issues
7. On the basis of pleadings of the parties, following issues were framed on 10.11.2016 by Ld. Predecessor of this court:
1. Whether the suit is without any cause of action against defendant no.
2? OPD
2. Whether there is no privity of contract between the plaintiff and defendant no. 1? OPD
3. Whether the suit is bad for misjoinder of the parties?OPD
4. Whether the plaintiff has not come with clean hand and suppressing the material facts? OPD
5. Whether the plaintiff is entitled for the recovery of Rs.62,05,683/?
OPP
6. Whether the plaintiff is entitled for interest on the aforesaid amount, if so, for what period and at what rate?OPP
7. Relief.
CS No. 58713-16 Shomit Finance Vs. Shreyans Motors Pvt. Ltd. and anr 12/28 Plaintiff's Evidence
8. To prove its case, plaintiff examined Sh. Anand Arya as PW1 who tendered his evidence by way of affidavit EX. PW1/A. He relied upon the following documents:
1. Copy of resolution dated 02.04.2014 as Ex. PW1/1.
2. Sales contract dated 08.12.2011 as Ex. PW1/2.
3. Money Receipt dated 10.12.2011 as Ex. PW1/3.
4. Welcome note as Ex. PW1/4.
5. Email dated 14.12.2011 as Ex. PW1/5.
6. Car Loan documentation including Car Loan cum Hypothecation agreement dated 28.12.2011 as Ex. PW1/6 (colly).
7. Money receipt dated 30.12.2011 as Ex. PW1/7.
8. Copy of letter dated 31.12.2011 as Ex. PW1/8.
9. Copy of letter dated 12.04.2012 as Ex. PW1/9.
10. E mail dated 15.07.2013 as Ex. PW1/10.
11. Revised Sales contract dated 15.07.2013 as Ex. PW1/11 (colly).
12.Money receipt dated 15.07.2013 as Ex. PW1/12.
13. Copy of Cheque no. 705066 dated 20.09.2013 as Ex. PW1/13.
14.Copy of letter dated 11.10.2013 as Ex. PW1/14 (colly).
15.Copy of complaint dated 14.10.2013, 25.10.2013 and CS No. 58713-16 Shomit Finance Vs. Shreyans Motors Pvt. Ltd. and anr 13/28 29.10.2013 as Ex. PW1/15 (colly).
8.1 Plaintiff also examined Sh. Pranav as PW2 in support of its case who proved the power drive car loan document and letter dated 31.12.2011 already exhibited as Ex. PW1/6 and Ex. PW1/8.
Defendant's Evidence 8.2 Defendant no. 1 was already proceeded exparte and defendant no. 2 did not lead any evidence.
Findings
9. I have heard the Ld. counsels for the parties, given due consideration to the rival contentions raised at bar and have carefully gone through the record.
9.1 As all the issues being interconnected my finding is as under:
Issue no. 1: Whether the suit is without any cause of action against defendant no. 2? OPD Issue no. 2: Whether there is no privity of contract between the plaintiff and defendant no. 1? OPD Issue no. 3: Whether the suit is bad for misjoinder of the parties?OPD CS No. 58713-16 Shomit Finance Vs. Shreyans Motors Pvt. Ltd. and anr 14/28 Issue no. 4: Whether the plaintiff has not come with clean hand and suppressing the material facts? OPD Issue no. 5: Whether the plaintiff is entitled for the recovery of Rs.62,05,683/?OPP Issue no. 6: Whether the plaintiff is entitled for interest on the aforesaid amount, if so, for what period and at what rate?OPP 9.2 In nutshell the case of the plaintiff is that the plaintiff had booked a Porsche Car (hereinafter referred to as the "car") however neither the car was delivered to the plaintiff nor the entire amount paid by the plaintiff towards the booking, purchase of the car was returned/refunded to it.
9.3 After going through the entire material on record I am of the considered opinion that the plaintiff is indeed entitled to the return, refund of the amount paid by it to defendant no. 1 for the booking, purchase of the car.
9.4 Plaintiff had booked the car vide sales contract Ex. PW1/2 dated 08.12.2011 and had paid the booking amount of Rs. 15 lacs out of total consideration of Rs. 74,47,000/. Plaintiff was also issued a receipt separately i.e. Ex. PW1/3 dated 10.12.2011 for the amount of Rs. 15 lacs. A welcome note/letter Ex. PW1/4 was also addressed to the plaintiff by way of which the plaintiff was welcomed to the world of Porsche.
CS No. 58713-16 Shomit Finance Vs. Shreyans Motors Pvt. Ltd. and anr 15/28 9.5 As per Ex. PW1/2 the expected date of delivery of the car was April/May 2012. Vide Ex. PW1/5 dated 14.12.2011 plaintiff was informed that its car has completed production and it was provided the engine number and chasis number of the car. Request was also made to the plaintiff to release the balance payment in terms of the sales contract. The balance payment was arranged by the plaintiff by taking a loan of Rs. 40 lacs from defendant no. 2 vide Ex. PW1/6 (colly). Plaintiff accordingly paid a sum of Rs. 39,94,395/ to defendant no. 1 vide Ex. PW1/7 dated 30.12.2011 as a sum of Rs. 5605/ was deducted, adjusted from the loan amount of Rs. 40 lacs towards processing fees.
9.6 Hence by 30.12.2011 the plaintiff had paid a sum of Rs. 54, 94,395/ towards the booking, purchase of the car. This fact, as is writ large from the pleadings of the parties, stands duly admitted by the defendants, in particularly defendant no. 1. However the car was not delivered and accordingly the plaintiff was constrained to write a letter to defendant no. 1 on 12.04.2012 i.e. Ex. PW1/9 showing its displeasure on account of non delivery of the car. The car was still not delivered. On 15.07.2013 defendant no. 1 wrote an email to the plaintiff i.e. Ex. PW1/10 undertaking to deliver the car within 15 working days upon receipt of a sum of Rs. 30,72,105/. In between i.e. 01.09.2012 defendant had returned an amount of Rs. 7.5 lacs to the plaintiff.
CS No. 58713-16 Shomit Finance Vs. Shreyans Motors Pvt. Ltd. and anr 16/28 9.7 In terms of Ex. PW1/10 a fresh sales contract i.e. Ex. PW1/11 was executed between the parties on 15.07.2013 itself wherein the ex showroom price of the car was now Rs. 84,17,000/. On 15.07.2013 itself plaintiff paid a sum of Rs. 30,72,105/ vide Ex. PW1/12 to defendant no.1 which fact also stands admitted. However still the car was not delivered to the plaintiff. Hence in terms of revised sales contract i.e. Ex. PW1/11 and receipts Ex. PW1/3, Ex. PW1/7 & Ex. PW1/12 defendant no. 1 had received a total sum of Rs. 78,16,500/ however the car was still not delivered to the plaintiff despite undertaking dated 15.07.2013 i.e. Ex. PW1/10 as per which the car was to be delivered within 15 working days upon receipt of amount of Rs. 30,72,105/ which was duly paid by the plaintiff vide Ex. PW1/12.
9.8 Aggrieved with the non delivery of the car and repeated violations of its undertaking, agreement by defendant no. 1 plaintiff sought refund of its amount and accordingly defendant no. 1 issued a cheque bearing no. 705066 dated 20.09.2013 for a sum of Rs. 38,22,105/ i.e. Ex.
PW1/13 however the said cheque was dishonored. Nonetheless the said amount was later on admittedly refunded by defendant no. 1 i.e. on 25.10.2013.
9.9 On 11.10.2013, vide Ex. PW1/14, defendant no. 1 wrote to the plaintiff acknowledging receipt of the amount of Rs. 78,16,500/ and its non payment. Defendant no. 1 also acknowledged the default in its CS No. 58713-16 Shomit Finance Vs. Shreyans Motors Pvt. Ltd. and anr 17/28 commitments, undertakings and gave one Audi A6 car to the plaintiff as a security. This fact was brought to the notice of the local police by the plaintiff vide Ex. PW1/15 dated 14.10.2013.
9.10 Hence it stands proved that despite receipt of Rs. 78,16,500/ the car was never delivered to the plaintiff by defendant no. 1. Out of the said amount of Rs. 78,16,500/ plaintiff had paid a sum of Rs. 38,22,105/ from his own and amount of Rs. 39,94,395/ by taking loan from defendant no.2. Though amount of Rs. 38,22,105/ was ultimately refunded on 25.10.2013 however amount of Rs. 39,94,395/ was not refunded, returned to the plaintiff nor the loan account adjusted with defendant no. 2.
9.11 It was the stand of defendant no. 1, who otherwise had admitted receiving Rs. 78,16,500/ from plaintiff and the non delivery of the car, that it had not assured the delivery of the car by April/May 2012 which stands negated in view of Ex. PW1/2 where it is mentioned as "Expected date of delivery April/May/12". Furthermore the car was not delivered despite undertaking Ex. PW1/10 which read as "we undertake to deliver the car within 15 working days starting from the receipt of payment of Rs. 30,72,105/...." and rather the fact remains that the car was never delivered. It will be pertinent to highlight that defendant no. 1 did not lead any evidence whatsoever and its contentions remained bald and unsubstantiated. In fact defendant no. 1 did not even bother to cross examine the plaintiff's witnesses CS No. 58713-16 Shomit Finance Vs. Shreyans Motors Pvt. Ltd. and anr 18/28 so as to confront them or contradict their claim and ultimately was proceeded exparte.
9.12 In fact on a careful reading of the written statement it would be revealed that despite giving the expected date of delivery to the plaintiff as April/May vide Ex. PW1/2, defendant no. 1 defaulted in the delivery, reasons for which it had explained in para 14 of the written statement as "
there were disputes between the manufacturer of the Porsche vehicle and defendant no. 1 and hence the car could not be delivered to the plaintiff". In addition to the said admission defendant no. 1 could not, did not bother to prove on record any default on the part of the plaintiff which might have led to the delay, non delivery of the vehicle.
9.13 It was also the contention of defendant no.1 that cheque of Rs. 38,22,105/ was issued merely as a security and it was not be encashed however defendant no. 1 could not prove the same. As discussed above the plaintiff had stated that the amount in lieu of said cheque was given by defendant no. 1 on 25.10.2013 which also was admitted by defendant no.1 and which proves that the cheque was not given as a security or else defendant no.1 could not have paid the amount in cash in lieu of the cheque.
9.14 The main contention, defence of defendant no. 1 was that an Audi A6 was given by it to the plaintiff to close the issue however later on the CS No. 58713-16 Shomit Finance Vs. Shreyans Motors Pvt. Ltd. and anr 19/28 plaintiff became greedy and did not return the car and neither wanted defendant no. 1 to refund the funds to defendant no. 2 which otherwise was subject to delivery/return of Audi A6 car. Defendant no. 1 also talked about letter dated 25.09.2014 of defendant no. 2 and plaintiff's corresponding letter dated 10.10.2014. It was claimed that the plaintiff concealed these two material letters from the court and therefore the plaintiff is not entitled to any relief. At the outset defendant no. 1 did not bother to prove these two letters as per the rules of evidence. Even defendant no. 2 opted not to lead any DE to prove those two letters. Hence the said letters cannot be considered at all. Nonetheless I have perused the said letters. As far as letter dated 25.09.2014 is concerned same is addressed by defendant no. 2 to the plaintiff and copy of the same was also sent to defendant no. 1. Vide the said letter defendant no. 2 had proposed to the plaintiff that as defendant no,. 1 had approached them to refund the entire loan amount of Rs. 40 lacs defendant no. 2 was willing to refund an amount of Rs. 23,15,976/ to the plaintiff and they had sought no objection from the plaintiff in this regard. Letter dated 25.09.2014 was merely a proposal which was subject to repayment of the entire loan by defendant no. 1 and internal approval of the bank, defendant no. 2. There is nothing on record to suggest that this proposal was indeed agreed and acted upon by the parties, especially the plainitff. Vide the reply, letter dated 10.10.2014, addressed to defendant no. 1 the plaintiff expressed its displeasure to the said settlement arrived between defendant no. 2 and defendant no. 1. No question whatsoever arises CS No. 58713-16 Shomit Finance Vs. Shreyans Motors Pvt. Ltd. and anr 20/28 of plaintiff being bound by the said settlement which indeed as is evident from the letters took place behind its back. Furthermore it is also reflected in letter dated 10.10.2014 that the amount was received by defendant no. 2 from defendant no. 1. No evidence has been brought on record by either of the parties, especially defendant no. 1 and 2 to prove that defendant no. 1 had paid and defendant no. 2 had indeed received an amount of Rs. 40 lacs from defendant no. 1 in terms of letter dated 10.10.2014. Similarly, no evidence was led by defendant no. 2 to prove that after the refund of Rs.40 lacs it had paid a sum of Rs.23,15,976/ in terms of letter dated 25.09.2014 to the plaintiff. On the contrary in its written statement defendant no. 2 had categorically stated that the loan amount which is jointly and severally payable by plaintiff and defendant no. 1 is due from them. Even if the amount of Rs. 40 lacs was paid by defendant no. 1 to defendant no. 2, which as discussed above has not been proved on record, the said payment would not absolve defendant no. 1 from its liability on account of breach of its undertaking, obligation to deliver the car, moreso, when plaintiff has admittedly paid a sum of Rs.23,15,976/ to defendant no. 2 towards the loan so availed.
9.15 Though it was also one of the contention that the Audi A6 car was given to the plaintiff which the plaintiff failed to return and rather plaintiff caused damage to the Audi A6 Car and therefore no liability of defendant no. 1 remains, however, merely because defendant no. 1 gave an CS No. 58713-16 Shomit Finance Vs. Shreyans Motors Pvt. Ltd. and anr 21/28 Audi A6 car to the plaintiff that by itself would not absolve defendant no. 1 from its contractual obligations, the defaults thereupon. The Audi A6 car, as per the plaintiff's case, was given to it vide EX. PW1/14. Though, defendant no. 1 had claimed that EX. PW1/14 was a forged document, however, no evidence was brought on record to prove the same and I find no reasons to disbelieve the genuineness of the said document once defendant no. 1 admits handing over of Audi A6 car to the plaintiff. Plea of defendant no. 1 that the Audi A6 car was forcibly taken by the plaintiff also looses merit as defendant no. 1 lead any evidence to prove that he had given any police complaint whatsoever against the plaintiff for forcibly taking away the car or had initiated any proceedings for its return. Defendant no. 1 did not prove, did not bring any material on record to prove that the Audi car as was given to the plaintiff was a brand new car. No evidence was led to prove as to what was the worth of the car. No evidence was led to prove that the car was sold or transferred in the name of the plaintiff. As per Ex. PW1/14, vide which the car was given to the plaintiff, it is writ large that the said car was given as a security. Relevant portion of Ex. PW1/14 read as " As we have not refunded the payments to you timely so we are giving you our security car Audi A6 for your security." Hence the car was given as a security for the repayment of the amount and it was not transferred or sold to the plaintiff which gets more evident in view of the fact that as per the photocopy of the RC accompanying the Audi A6 car stands in the name of defendant no. 1 and is hypothecated to Tata Capital Limited. The RC also reveals that the CS No. 58713-16 Shomit Finance Vs. Shreyans Motors Pvt. Ltd. and anr 22/28 Audi A6 car at the time when it was delivered to was already more than 3 ½ years old as the registration date of the car is 04.03.2010 and its manufacturing year is 2009. There is nothing on record which even remotely proves that the said car was given in lieu of, as an adjustment towards the loan amount of Rs. 39,94,395/ admittedly not repaid to the plaintiff or as a final closure of the deal, transaction. It was upon defendant no. 1 to prove that on delivery, handing over the Audi A6 car its liability came to an end. It was for defendant no. 1 to prove that the said car was delivered, handed over after an understanding, agreement with the plaintiff. Defendant no. 1 has misreably failed to prove the same.
9.16 Coming back to the issues framed in the present case as far as issue no. 1 is concerned the onus to prove the same was upon the defendant no. 2 however defendant no. 2 has not led any evidence to prove the said issue. Furthermore plaintiff has not claimed any relief against defendant no. 2 and has arrayed defendant no. 2 merely as a proforma party. However, the very fact that the loan was granted by defendant no. 2 to the plaintiff and it was ultimately disbursed to defendant no. 1 coupled with letters dated 25.09.2014 and 10.10.2014 would reveal that plaintiff had its grievance against defendant no. 2 as well. This issue is thus decided against defendant no. 2.
9.17 As far as issue no. 2 is concerned onus to prove the present issue CS No. 58713-16 Shomit Finance Vs. Shreyans Motors Pvt. Ltd. and anr 23/28 appears to be upon defendant no. 1. No evidence was led by defendant no. 1 to prove the said issue. No question of there being no privity of contract between plaintiff and defendant no. 1 arises in view of the admitted sale transaction, sale contract in respect of the car in question. This issue is thus decided against defendant no. 1.
9.18 As far as issue no. 3 is concerned it is not clear as to upon whom the onus was cast upon to prove the same however it appears that issue was framed at the behest of defendant no. 2. In view of the above discussion, defendant no. 2 though not a necessary party but is a proper party as it had provided loan facility to the plaintiff, which the plaintiff had claimed was at the behest of defendant no. 1 and which fact was not denied by defendant no. 2 in its written statement. Furthermore defendant no. 2 was aware about the transaction between plaintiff and defendant no. 1, the breach by defendant no. 1 and had also attempted to resolve the conflict between them which stands proved in view of letters dated 25.09.2014 and 10.10.2014. This issue is thus decided against defendant no. 2.
9.19 As far as issue no. 4 is concerned onus appears to be again on defendant no. 1 to prove the same. Defendant no. 1 did not lead any evidence to prove the same. It was not proved or explained as to how the plaintiff had not approached the court with clean hands or what material facts were concealed by it. If the contentions were in relation to letters dated CS No. 58713-16 Shomit Finance Vs. Shreyans Motors Pvt. Ltd. and anr 24/28 25.09.2014 and 10.10.2014, the said letters were not proved on record. Moreover it has been discussed above these letters which were merely proposals do not bind the plaintiff. This issue is thus decided against defendant no. 1.
9.20 As far as issue no. 5 is concerned plaintiff has claimed recovery of Rs. 62,05,683/ and the break up of the amount is given as Rs. 40 lacs as loan availed by the plaintiff from defendant no. 2 and given to defendant no.
1. Rs. 10,64,932/ as interest paid by plaintiff to defendant no. 2. Rs. 6,60,751/ as interest on the amount of Rs. 45,72,105/ paid by plaintiff to defendant no. 1. Plaintiff has also sought compensation of Rs. 5 lacs towards loss of business, loss of opportunity, mental agony and harassment.
9.21 As far as loan amount of Rs. 40 lac is concerned in view of the above discussion as the car was not delivered to the plaintiff in terms of the sales contract and the amount refunded to the plaintiff is only Rs. 45,72,105/ and the loan amount has not been refunded till date, the plaintiff is indeed entitled to refund of said amount. However, it is made clear that once the amount is returned, refunded to the plaintiff by defendant no.1, plaintiff shall hand over the Audi A6 Car to defendant no. 1.
9.22 As far as amount of Rs. 10,64,932/ is concerned, this is the amount which the plaintiff claims to have paid as interest to defendant no.2 CS No. 58713-16 Shomit Finance Vs. Shreyans Motors Pvt. Ltd. and anr 25/28 towards the loan facility availed by it. None of the defendants especially defendant no. 2 has rebutted the case of the plaintiff or denied that plaintiff has not paid the said interest to it on the loan of Rs. 40 lacs availed by it. Therefore the plaintiff is entitled to recovery of the said amount as well.
9.23 As far as amount of Rs.6,60,751/ is concerned plaintiff has claimed the said amount as interest @ 24% per annum on the amount directly paid by the plaintiff to defendant no. 1 i.e. Rs. 45,72,105/. As per the sales contract Ex. PW1/2 and Ex. PW1/3 plaintiff had paid Rs. 15 lacs on 08.12.2011/10.12.2011. Further sum of Rs. 30,72,105/ was given on 15.07.2013 i.e. total sum of Rs. 45,72,105/ was given to the defendant no. 1 till 15.07.2013 ( This is in addition to the loan amount of Rs.39,94,395/). However it is to be seen that defendant no. 1 had refunded the said amount to the plaintiff on 01.09.2012 (Rs. 7,50,000/) and on 25.10.2013 (Rs. 38,22,105/). Plaintiff is thus entitled to interest @ 9% per annum on a sum of Rs. 15 lacs from 10.12.2011 till 01.09.2012. Plaintiff is also entitled to interest @ 9% per annum on a sum of Rs. 7.5 lacs from 01.09.2012 till 25.10.2013. Plaintiff is also entitled to interest @ 9% per annum on Rs. 30,72,105/ from 15.07.2013 till 25.10.2013. Plaintiff is entitled to the interest as above as defendant no. 1 retained the money of the plaintiff, utilized the same but did not deliver the car in terms of sales contract.
9.24 As far as Rs. 5 lacs is concerned plaintiff has claimed the said CS No. 58713-16 Shomit Finance Vs. Shreyans Motors Pvt. Ltd. and anr 26/28 amount towards compensation for financial loss, loss of opportunity, mental agony and harassment. However plaintiff has failed to lead any evidence to prove that on account of non delivery of the car the plaintiff suffered certain financial losses or loss of opportunity. Similarly no evidence was led to prove that the plaintiff, its Director, employee etc. suffered any mental agony or harassment. Therefore as the plaintiff has failed to lead any evidence to prove that it is entitled to the compensation and considering the fact that it was provided an Audi 6 car, by defendant no. 1, as a security which admittedly the plaintiff had used and utilized, plaintiff is not entitled to said amount of Rs. 5 lacs. This issue is thus decided in favour of the plaintiff.
9.25 As far as Issue no. 6 is concerned, considering the entire facts and circumstances of the case, plaintiff is entitled to pendente lite and future interest @ 6% p.a. on the amount awarded to it, till the time of its realization.
Relief
10. In view of the above discussion the suit of the plaintiff is decreed. Plaintiff is entitled to recovery of Rs. 50,64,932/. Plaintiff is also entitled to recovery of amount in the form of interest @ 9% per annum on a sum of Rs. 15 lacs from 10.12.2011 till 01.09.2012, interest @ 9% per annum on a sum CS No. 58713-16 Shomit Finance Vs. Shreyans Motors Pvt. Ltd. and anr 27/28 of Rs. 7.5 lacs from 01.09.2012 till 25.10.2013 and interest @ 9 % per annum on Rs. 30,72,105/ from 15.07.2013 till 25.10.2013. Plaintiff is entitled to pendente lite and future interest @ 6% p.a. on the amount awarded to it, till the time of its realization.
11. Decree sheet be prepared accordingly.
12. File be consigned to record room.
Announced in the open court (Gaurav Rao)
on 28th March 2018 ADJ02 & Waqf Tribunal /
New Delhi District,
Patiala House Courts, Delhi.
CS No. 58713-16 Shomit Finance Vs. Shreyans Motors Pvt. Ltd. and anr 28/28