State Consumer Disputes Redressal Commission
Santa Banta.Com vs Porsche Cars on 11 April, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH Consumer Complaint No. 46 of 2011 Date of Institution 06.07.2011 Date of Decision 11.04.2014 1. Santa Banta.Com Limited, SCO 317-318, 1st Floor, Sector 35-B, Chandigarh through Jiwandeep Singh Ghai, Director. 2. Jiwandeep Singh Ghai, Director, Santa Banta Com. Limited, SCO 317-318, 1st Floor, Sector 35-B, Chandigarh. .Complainants Versus 1. M/s Porsche Cars, through its Managing Director, Mr.Rod Wallace, # 3, District Centre, Jasola, 3rd Floor, Splendor Forum Building, South Delhi, New Delhi-110044. Second Address: (Porsche Centre Chandigarh), Plot No.27/9, Industrial Area, Phase-II, Chandigarh -160002. 2. Mr.Rod Wallace, M/s Porsche Cars, # 3, District Centre, Jasola, 3rd Floor, Splendor Forum Building, South Delhi, New Delhi-110044. Second Address: (Porsche Centre Chandigarh), Plot No.27/9, Industrial Area, Phase-II, Chandigarh -160002. 3. M/s Shreyans Motors Pvt. Ltd. through its Managing Director, A-31, Mohan Cooperative Industrial Estate, Mathura Road, New Delhi-110044. Second Address: (Porsche Centre Chandigarh), Plot No.27/9, Industrial Area, Phase-II, Chandigarh -160002. 4. Mr.Maneesh Raseen, Sales Manager, M/s Shreyans Motors Pvt. Ltd.,(Porsche Centre, New Delhi) A-31, Mohan Cooperative Industrial Estate, Mathura Road, New Delhi-110044. 5. Mr. Stanley Evans, Brand Manager, (Porsche Centre, New Delhi), M/s Shreyans Motors Pvt. Ltd., A-31, Mohan Cooperative Industrial Estate, Mathura Road, New Delhi-110044. Second Address: (Porsche Centre Chandigarh), Plot No.27/9, Industrial Area, Phase-II, Chandigarh -160002. 6. M/s Precision Cars India Private Ltd., through its Managing Director, 401, Poonam Chambers, Worli Mumbai, Maharastra-400018. Second Address: (Porsche Centre Chandigarh), Plot No.27/9, Industrial Area, Phase-II, Chandigarh -160002. 7. Ashish Kumar Chordia, Director, M/s Shreyans Motors Pvt. Ltd. and also M/s Precision Cars India Pvt. Ltd., r/o 22 Ferozshah Road, # 302, New Delhi-110001. Second Address: c/o M/s Precision Cars India Pvt. Ltd., Plot No.27/9, Industrial Area, Phase-II, Chandigarh -160002. 8. Ms.Ujwal Kumari, Director, M/s Shreyans Motors Pvt. Ltd. and also M/s Precision Cars India Pvt. Ltd., r/o B/406, Shirpal Nagar, # 12, Harkness Road, Mumbai-400006, Maharashtra. Second Address: c/o M/s Precision Cars India Pvt. Ltd., Plot No.27/9, Industrial Area, Phase-II, Chandigarh -160002. (OPs No.1, 2, 5, 7 and 8 deleted from the array of OPs vide order dated 11.08.2011). . Opposite Parties BEFORE: JUSTICE SHAM SUNDER, PRESIDENT MR. DEV RAJ, MEMBER
MRS. PADMA PANDEY, MEMBER Present: Sh. S. S.Narula, Advocate for the complainants Sh.
Anil Malhotra, Advocate for Opposite Parties No.3, 4 & 6.
The names of Opposite Parties No.1, 2, 5, 7 and 8 deleted vide order dated 11.08.2011.
PER DEV RAJ, MEMBER
1. In brief, the facts of the case, are that complainant No.2, is the Director of complainant No.1 M/s Santa Banta.Com Limited, whereas, Opposite Party No.1, is the manufacturer of Porsche cars, which are being imported through Opposite Party No.6 and sold through Opposite Party No.3. It was stated that Opposite Party No.2, is the representative in India of Opposite Party No.1, while Opposite Party No.5, looks after the operations of Opposite Party No.1, and is responsible for overall supervision of imports and sales in India being the Brand Manager. It was further stated that Opposite Party No.4 is the Sales Manager of Opposite Party No.3, and the person responsible for inducing customers to purchase Porsche cars for and on behalf of Opposite Party No.3. It was further stated that Opposite Parties No.7 and 8 are the Directors of Opposite Party No.3, as well as Opposite Party No.6 and they are responsible for the conduct of business management and day to day affairs of the said two Companies.
2. It was further stated that the complainants were approached by the Opposite Parties, for the purchase of Porsche Cayenne V-6 vehicle. It was further stated that the complainants were told that the vehicle would be built and customized, as per their requirements. It was further stated that the price of the vehicle was calculated at Rs.68.93 lacs and the complainant was asked to pay 60% of the price of the car, in advance, whereas, the remaining 40% price was to be paid on delivery of the car. It was further stated that the complainants would have to pay only Rs.5.35 lacs and the balance Rs.34,81,880/- towards advance, was to be financed. It was further stated that being allured by the assurances, held out by the Opposite Parties, the complainants handed over a cheque dated 30.07.2008 for Rs.5.35 to Opposite Party No.3, and the remaining amount of Rs.36 lacs, was financed by Tata Capital Ltd., Chandigarh. It was further stated that the car was to be delivered by November, 2008. It was further stated that a Sales Contract, Annexure C-2, was got signed from the complainants by Opposite Party No.4. It was further stated that the remaining amount of Rs.34,81,880/-, after deducting one installment, in advance, towards loan was directly sent to Opposite Party No.3, on 31.07.2008, by Tata Capital Ltd., Chandigarh.
3. It was further stated that Opposite Party No.4, got signed all the requisite documents, drawn up, in favour of Opposite Party No.6, from the complainants, for importing the car on 22.12.2008. It was further stated that on all the documents, date was mentioned as 23.12.2008. It was further stated that the said documents also contained an agreement with Opposite Party No.3, as seller of the vehicle. It was further stated that the said car was not delivered within the promised period, but the complainants had to pay 13 monthly installments of Rs.1,15,020/-
each, to Tata Capital Ltd., Chandigarh. It was further stated that on being asked about the delivery of car, the complainants were told by the Opposite Parties, that the car was ready to be transported, but due to some problem in high seas, its delivery in India had been delayed. It was further stated that the complainants got prepared a demand draft, for the remaining price of the car, but even then the same (car) was not delivered. It was further stated that the complainants approached the Opposite Parties a number of times, for the delivery of car, but the same was not delivered to them.
4. It was further stated that, ultimately, the complainants served a legal notice dated 25.02.2009, requiring the Opposite Parties, to pay Rs.40,16,880/-, taken as advance, interest, damages etc. It was further stated that instead of delivering the car, Opposite Party No.3, in order to evade its liability, in connivance with Tata Capital Ltd., Chandigarh, started paying the installments of loan of the complainants, to it, despite the fact that it had already taken the cheques, in advance, against the said loan. It was further stated that due to the non-delivery of car or non-refund of the booking amount, by the Opposite Parties, the complainants suffered humiliation, harassment and mental agony. It was further stated that the Opposite Parties were deficient, in rendering service, as also, indulged into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, seeking directions to the Opposite Parties to pay Rs.67,80,293/- alongwith interest @18% per annum from the date of filing the complaint; and Rs.5 Lacs as compensation for harassment, humiliation and mental agony.
5. In the written statement, Opposite Parties No.3, 4 and 6 took up certain preliminary objections to the effect that the complainants could not be allowed to take advantage of their own wrongs, as despite repeated follow up emails, and telephonic communications, with complainant no.2, to make the balance payment and thereafter take delivery of the car as per the sales contract, no balance payment was received; that this Commission has no territorial jurisdiction to entertain and decide the case, as Opposite Parties No.3 and 6 do not have any branch office at Chandigarh; that the sales contract, Annexure C-2, was between Opposite Party No.3 and the complainants, which was binding on the parties; that there was no privity of contract between Radian Wheels Private Limited and the complainants as the car booked by the complainants was as per contract dated 31.7.2008, when Radiant Wheels Private Limited was not even in existence; and that the complaint was barred by limitation as the contract for purchase of the vehicle, in question, was executed on 31.7.2008 and the complaint was filed much after two years by the complainants. It was also pleaded that even if the limitation was computed from 25.5.2009/1.6.2009 (Exhibits R-14 and R-15), the complaint was barred by limitation.
6. On merits, it was denied that Opposite Party No.4 visited complainant No.2, at Chandigarh, and induced him, to buy the car, for and, on behalf of the other Opposite Parties. It was also denied that the sales contract was executed, between the parties, at Chandigarh. It was stated that Opposite Party No.6 is a dealer in motor vehicles, manufactured by Dr.Ing. HCF Porsche AG, Germany and Opposite Party No.3 is a dealer of Opposite Party No.6, and the dealings between them are on principal to principal basis. It was further stated that the officials of Opposite Party No.3, explained the features of products, being manufactured by Dr. Ing. HCF Porsche AG, Germany, their prices, the terms and conditions of sale including the fact that the prices, as prevalent, on the date of delivery and taxes as prevalent at the time of import and sale of the car. It was further stated that the complainants were required to make payment accordingly. It was further stated that the vehicles manufactured by Dr.Ing. HCF Porsche AG, Germany, are luxury vehicles manufactured by it, as per the specifications /choice of the customers, and the delivery dates, thus, could not be confirmed. The delivery of the vehicle, if ordered, was to be made depending on production plans, order book position and receipt of goods in India. It was admitted that Sales Contract, C-2, was executed between Opposite Party No.3 and the complainants, which contained the following undertaking:
I/we have read and understanding the terms and conditions as attached in Annexure for booking and sale and accept the same.
I/we further understand that this agreement of sale of the above vehicle is between both of us and that Porsche India is not a party to this booking and is not liable in any manner.
7. It was further stated that Porsche India or any of its other dealers/distributors at any other location had no liability as there was no privity of contract with any other party elsewhere. It was denied that the Opposite Parties offered to get a loan arranged, from Tata Capital Ltd. However, it was admitted that the complainant made payment of Rs.5.35 lacs as an advance payment, for booking of the car, and Rs.34,81,880/- through cheque were received from Tata Capital Ltd. It was further stated that balance payment of the car was supposed to be made within 5 days, from the receipt of engine no. and the chassis no. as per the payment clause of the sales contract.
It was denied that the complainants made the balance payment of Rs.29 lacs. It was further stated that the Opposite Parties were always ready and wiling to perform their part of the contract, and the delay, if any, was on the part of the complainants. It was further stated that despite repeated follow up e-mails, and telephonic conversations, the complainants failed to make the balance payment, and thereafter to take the delivery of vehicle, as per the sales contract. It was further stated that the loan amount of Rs.34,81,880/- advanced by Tata Capital Ltd.
had been refunded to it and the amount of Rs.5.35 lacs was forfeited as per the sales contract. It was further stated that the Opposite Parties, paid demurrage/detention charges amounting to Rs.13,26,936/- to the Sea Port, and other authorities, and, as such, suffered loss on account of the fault of the complainants. All other averments, made in the complaint, were denied. It was further stated that the Opposite Parties were neither deficient, in rendering service nor indulged into unfair trade practice.
8. The complainants, filed replication, wherein, they reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of Opposite Parties No.3, 4 and 6.
9. The complainants, in support of their case, submitted affidavit of complainant No.2 namely Sh. Jiwan Deep Singh Ghai, by way of evidence, alongwith a number of documents.
10. Opposite Parties No.3, 4 and 6, in support of their respective cases, submitted short affidavits of Sh. Vivek Satyani, Manager Corporate Affairs & Sh. Manish Raseen, Sales Manager of Opposite Party No.3 and affidavit of Sh. Shobhit Agarwal, Associate, Corporate Affairs of Opposite Party No.6 alongwith a number of documents, by way of evidence.
11. The names of Opposite Parties No.1, 2, 5, 7 and 8 were deleted vide order dated 11.8.2011, on the basis of the statement of the Counsel for the complainants.
12. We have heard the Counsel for the parties, and, have gone through the evidence, record of the case and written arguments submitted by the parties, carefully.
13. The Counsel for the complainants, submitted that a Porsche Cayenne V-6 car was booked by the complainants with Opposite Party No.3, at its Chandigarh address.
It was further submitted that price of the vehicle was settled at Rs.68,93,000-00 as per proforma invoice dated 22.07.2008 (C-1) and initially a payment of Rs.5,35,000/- vide cheque dated 30.07.2008 drawn on Citibank, Sector 9, Chandigarh was made in advance to it (Opposite Party No.3). It was further submitted that a sum of Rs.34,81,880/-, was directly paid by Tata Capital Limited, Chandigarh, a Finance Company, to Opposite Party No.3, and, in all, a total sum of Rs.40,16,880/-34,81,880/-+Rs.5,35,000/-, which constituted 60% of the total price of the car viz. Rs.68.93 Lacs was paid. It was further submitted that the remaining 40% price of the car was to be paid at the time of delivery. It was further submitted that the sales contract dated 31.7.2008, Annexure C-2 was duly signed by complainant No.2, and the same, though not signed by the Opposite Parties, was binding. The Counsel, referring to Condition No.3 of the terms and conditions for acceptance of sales contract for Porsche vehicles, under heading Payment, (Annexure C-2), submitted that an advance payment of Rs.40,16,880.00, constituted 60%, which was adjustable against the price of the Porsche vehicle ruling at the time of the delivery.
14. It was further submitted that even though, the car did not arrive in India, Opposite Party No.3 asked for balance payment of the car. It was also submitted that on receiving email dated 2.2.2009 (Annexure R-10) regarding the status of payment, the complainant vide email dated 11.2.2009 informed the Opposite Parties that the demand draft for Rs.27,58,000-00 was ready and they sent scanned copy thereof (Annexure R-11). It was further submitted that the complainants wanted to know the date of delivery before making the balance payment as they learnt that the vehicle had been sold to someone else (Annexure R-12). It was further submitted that as per email dated 21.05.2009, Annexure C-12, Opposite Party No.3 sought the following undertaking from the complainants;
I, Jiwandeep Singh Ghai wish to make known to all concerned Persons/Establishments that, the High Seas Sale Agreement which was entered between me & M/s. Precesion Cars India Pvt. Ltd. on 23rd December, 2008 in regarding Sale of One Porsche Cayenne Tiptronic Chasis No.WP1ZZZ9PZPLAO7240 have since been cancelled owing to some difficulties on my end.
It was further submitted that Opposite Party No.3, did not indicate, as to when the car was received. It was further submitted that as was evident from Annexure C-14, Opposite Party No.3 started paying monthly instalments of the loan amount taken by the complainants from Tata Capital Limited and if there was no privity of contract between Tata Capital Limited and Opposite Party No.3, then why the amount was paid/refunded by Opposite Party No.3 to M/s. Tata Capital Limited. It was further submitted that it was specifically averred in Para 11 of the complaint, that Opposite Party No.3 failed to supply the car booked by the complainants within the stipulated time which clearly amounted to deficiency of service. It was further submitted that the Opposite Parties did not produce any evidence that they had received the Car.
15. On the contrary, the Counsel for Opposite Parties No.3, 4 and 6 submitted that an amount of Rs.5,35,000/- was forfeited, as per the terms and conditions of the sales agreement. It was further submitted that the loan amount of Rs.34,81,880/-, advanced by Tata Capital Limited to Opposite Party No.3, was refunded to Tata Capital Limited. It was further submitted that Opposite Parties No.3, 4 and 6 took a specific preliminary objection in their written statement that the State Commission did not have the territorial jurisdiction.
It was further submitted that Tata Capital was not impleaded as a party. It was also submitted that since the complainants signed the undertaking below on Annexure C-2, the same (terms and conditions) were binding upon them.
The Counsel relied upon Condition No.3, 4, 5 and 8 of the terms and conditions for acceptance of sales contract for Porsche Vehicles under the heading Payment. Condition No.3 read as under:
An advance payment of minimum 60% shall be made alongwith the Sales Contract by way of an Account Payee DD/PO payable in favour of the Dealer with whom the order is placed payable at the place of business of the Dealer. Payment of cash/cheque will not be accepted. Advance payment will be adjusted against the price of the Porsche vehicle ruling at the time of the delivery.
16. It was also submitted that balance 40% amount towards Car price was supposed to be paid within five days from the date of receipt of Engine No. and Chassis No. as per the payment clauses of the sales contract (C-2). It was further submitted that the Opposite Parties were ready and willing to deliver the Car on receipt of the balance payment for taking delivery, as per the terms and conditions of contract but the complainants instead of sending the DD, (which they had got prepared), to the Opposite Parties, got the same cancelled and thus did not perform their obligation under the contract. It was further submitted that it was a matter of record that the Car, in question, arrived at Nhava Sheva Sea Port, Navi Mumbai from Germany in the third week of December 2008. The Chassis number of the Car had been provided to the complainant and he could go to Mumbai and inspect the vehicle at the Sea Port. It was further submitted that as per Shipping Rules and Regulations, 14 days time was allowed for retention, and, the same expired on 1.1.2009 and thereafter from 2.1.2009 till 23.10.2009, a total sum of Rs. 13,26,936/- was paid on account of detention, demurrage, warehouse, custom duty, forwarding and miscellaneous charges. It was further submitted that as per Annexure R-8, which is email dated 29.01.2009, the complainants were aware that they were required to make full payment of the Car but, in fact, the payment in full was not made. It was further submitted that vide email dated 25.5.2009 (Annexure R-14), the complainants were given last and final opportunity for depositing the balance payment to get the delivery of the Car or else the deposit shall stand forfeited as per the terms and conditions of the sales contract.
If the balance payment is not received within 5 days, then the applicant will lose his priority against the weeks delivery of vehicles, but can be considered against next weeks delivery subject to making his balance payment in the time as intimated by the dealer.
Delivery shall only be made against 100% payment. Part payment of any sort received as advance or otherwise against vehicle does not imply any obligation or agreement to deliver the vehicle without full and final payment for the vehicle.
17. Clause 2 under the heading Delivery and clause 1 under the heading Cancellation were also relied upon. It was further submitted that as per cancellation condition No.1, cancellation could only be done within 7 days after signing the sales contract. After the lapse of 1 day the advance payment will not be refunded by the dealer. It was also submitted that the complainants lodged a criminal complaint. It was further submitted that as per Annexure R-17, DSP, Economic Offences Wing informed Sh. Jiwandeep Singh Ghai, that no cognizable offence was found to have been made out.
18. The basic facts, regarding booking of car by the complainants, with the Opposite Parties, at a total price of Rs.68,93,000/-, payment of booking amount of Rs.5,35,000/-, which together with an amount of Rs.34,81,880/- from Tata Capital, constituted 60% of the total price, are admitted between the parties.
It is also in evidence that sales contract was executed by the complainant and the same though not signed by the Opposite Parties, yet was binding on the parties. Both the complainants and the Opposite Parties have relied upon the terms and conditions of the sales contract (Annexure C-2).
19. Though in the prayer clause, the complainants have sought payment of Rs.67,80,293/- alongwith compound interest @18% per annum but as per averment in Para 15 ..booking amount deposited still has not been refunded to the complainant alongwith interest.., the grievance is effectively regarding refund of booking amount of Rs.5,35,000/-.
20. So far as the objection of Opposite Parties No.3, 4 and 6 with regard to territorial jurisdiction of this Commission is concerned, this issue has already been settled by the Honble National Consumer Disputes Redressal Commission vide its order dated 14.2.2014 and the complaint was remanded back to this Commission for decision on merits.
21. Opposite Parties No.3, 4 and 6, took a specific objection, that the complaint filed by the complainants was time barred. It was submitted that the sales contract was executed on 31.7.2008, and the complaint could be filed up to 31.7.2010. It was further submitted that vide Annexures R-14 and R-15, which are emails dated 25.5.2009 and 01.06.2009, last and final opportunity was given to the complainants, to remit the balance payment, to get the delivery of car, in question. There is force in the contention of the Opposite Parties that cause of action to the complainants arose on 25.5.2009/1.6.2009 when they were afforded last and final opportunity to get the delivery of car. The complainants have not been successful in controverting the averments of the Opposite Parties and Annexures R-14 and R-15. The complaint, thus, could be filed within a period of two years from 1.6.2009 i.e. by 01.06.2011. The instant complaint, having been filed on 6.7.2011 is barred by limitation.
22. Assuming that the complaint was within limitation, the next question, which falls for consideration, is, as to whether, the sales contract (Annexure C-2) was binding between the parties. No doubt, the sales contract, Annexure C-2, has been signed by the complainants only but the same has not been disputed by Opposite Parties No.3, 4 and 6. The parties have relied upon various Clauses of Annexure C-2. Therefore, the parties are bound by the terms and conditions of sales contract.
23. The next question, which falls for consideration, is, as to when, the vehicle was to be delivered to the complainants. It is clearly evident that 60% payment of the vehicle i.e. Rs.5,35,000/- as booking amount and Rs.34,81,000/- by taking loan from Tata Capital Limited, was made. The vehicle was to be delivered by the Opposite Parties only after complete payment was made by the complainants as is evident from the following clauses under the heading Payment, Delivery and Cancellation:-
Payment An advance payment of minimum 60% shall be made alongwith the Sales Contract by way of an Account Payee DD/PO payable in favour of the Dealer with whom the order is placed payable at the place of business of the Dealer. Payment of cash/cheque will not be accepted. Advance payment will be adjusted against the price of the Porsche vehicle ruling at the time of the delivery.
If the balance payment is not received within 5 days, then the applicant will lose his priority against the weeks deliveries of vehicles, but can be considered against next weeks delivery subject to his making the balance payment in the time as intimated by the Dealer.
Delivery shall only be made against 100% payment. Part payment of any sort received as advance or otherwise against vehicle does not imply any obligation or agreement to deliver the vehicle without full and final payment for the vehicle.
Delivery Against each weeks expected vehicle supplies from the importer, intimation of allotment as per priority will be made by the dealer to the applicant. The applicant will be required to make the balance payment within 5 days from the date of this intimation.
Allocation of vehicle by the dealer to the applicant will depend upon the supplies of the vehicles by Manufacturer to the Dealer, the colour, model required by the applicant, and actual availability thereof with the dealer.
The dealer does not guarantee the date and time of delivery of the vehicle. The applicant shall not be entitled to claim any damages or losses of any kind for delay in the delivery or non delivery of the Porsche Vehicle due to natural clauses, war or civil strife, labour strike or unrest, natural calamities etc. The specification and price of the Porsche vehicle are subject to change without prior notice and the price ruling at the time of delivery will be applicable.
Cancellation Cancellation can only be done within 7 days after signing the Sales Contract. After the lapse of 1 day the advance payment will not be refunded by the dealer.
In case of an order through finance companies/banks, the notice of cancellation by the applicant must be sent to the dealer through the finance company/bank. The dealer will send the refund as application through the concerned finance company/bank.
If the applicant becomes a bankrupt or insolvent or compounds or makes any arrangement with his creditors or being a company goes into liquidation or passes into the hands of a receiver, the company may cancel the contract and in the case of contract for the sale, resell the vehicle and hold the applicant responsible for any loss sustained by such re-sale.
24. As per the terms and conditions of the sales contract, 40% payment was to be made by the complainants only when the allotment of car was intimated. Opposite Parties No.3, 4 and 6 in Para 5 of preliminary objections of their written statement have averred that balance payment was to be made within 05 days of notification of allotment of such car to the customer. The relevant clause in the sales contract is to the following effect:-
Against each weeks expected vehicle supplies from the importer, intimation of allotment as per priority will be made by the dealer to the applicant. The applicant will be required to make the balance payment within 5 days from the date of this intimation.Though Opposite Parties No.3, 4 and 6
intimated engine number and chassis number vide email dated 16.10.2008 (Annexure R-1) yet that cannot be construed as allotment of the vehicle in question. Opposite Parties No.3, 4 and 6 have also averred in Para No.3 of their written statement, that the balance payment was supposed to be made within 5 days from the date of receipt of engine number and chassis number as intimation was made available to the complainants on 16.10.2008. In our considered opinion, intimation of engine number and chassis number did not constitute allotment of the vehicle. In fact, as per averment of Opposite Parties No.3, 4 and 6 in Para No.8 of the written statement, it has been stated that .It is a matter of record that the car in question arrived at Nhava Sheva Sea Port, Navi Mumbai from Germany in the third week of December 2008 and the OP No.3 was ready and willing that Complainant no.2 could go and inspect the vehicle at the Sea Port in Mumbai.. Therefore, by no stretch of imagination, the allotment before the date when the vehicle actually arrived at Nhava Sheva Sea Port, Navi Mumbai from Germany in the 3rd week of December 2008, could have been made by the Opposite Parties. There is force in the argument of the complainants that Opposite Parties No.3, 4 and 6 wanted to have the balance 40% payment even when the vehicle actually did not arrive in India.
25. At the same time, when the complainants did not make balance 40% payment even after receipt of various communications from the Opposite Parties after the arrival of the car, at Nhava Sheva Sea Port, Navi Mumbai, the last being dated 25.5.2009 and 1.6.2009 (Annexures R-14 and R-15), there was clearly breach of terms and conditions of the sales contract. As per the sales contract, balance payment was to be made within 05 days but the Opposite Parties afforded 05 months time to the complainants. Opposite Parties No.3, 4 and 6 were well within their right not to refund the booking amount of Rs.5,35,000/-. The averment of the complainants that the demand draft was ready with them (complainants) and they sent the scanned copy thereof to the Opposite Parties, is of no help because the balance 40% payment was never made despite promises by the complainants and instead the demand draft made for the same was got cancelled.
26. Thus, the cancellation of vehicle was due to the fault of the complainants in not making balance payment and forfeiture of Rs.5,35,000/- was clearly, in accordance with the terms and conditions of sales contract, entered into between the parties. The complainants could not wriggle out of the terms and conditions of sales contract (Annexure C-2) when complainant No.2 appended his signatures on the undertaking to this effect. In fact, the Opposite Parties have adduced evidence vide Annexure R-16 (Colly) that they incurred expenditure of Rs.13,26,000/- on account of demurrages and detention charges etc. It is also in evidence in terms of Annexure R-17 that a complaint was lodged by the complainants before the Economic Offences Wing. DSP, EOW vide letter dated 11.8.2009, informed the complainant that the complaint was enquired into and after legal opinion, the same had been closed as no cognizable offence was found to have been made out.
27. In view of the aforesaid, the complainants are not entitled to any relief, and the complaint is liable to be dismissed.
28. For the reasons recorded above, the complaint, being devoid of any merit, is dismissed with no order as to cost.
29. Certified Copies of this order be sent to the parties, free of charge.
30. The file be consigned to Record Room, after completion.
Pronounced.
April 11, 2014.
Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[DEV RAJ] MEMBER Sd/-
[PADMA PANDEY] MEMBER Ad STATE COMMISSION (Consumer Complaint No.46 of 2011) Argued by:Sh. S. S.Narula, Advocate for the complainants.
Sh. Anil Malhotra, Advocate for Opposite Parties No.3, 4 & 6.
Opposite PartiesNo.1, 2, 5, 7 and 8 already deleted from the array of OPs vide order dated 11.08.2011).
Dated the 11th day of April, 2014 ORDER Vide our detailed order of the even date, recorded separately, the complaint has been dismissed, with no order as to costs.
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(DEV RAJ) MEMBER Sd/-
(JUSTICE SHAM SUNDER (RETD.)) PRESIDENT Sd/-
(PADMA PANDEY) MEMBER Ad