FINAL ORDER/JUDGEMENT
SHRI ASHOKE KUMAR GANGULY, MEMBER.
This is a complaint case u/s 12 of the CP Act, 1986. The brief facts of the case is that the Complainant Shri Awdhesh Kumar Singh being an unemployed youth and for earning his livelihood wanted to purchase a Honda BR V SMT Diesel car approached before the OP 1 which is the showroom to get the details of the same. The Complainant was advised by the showroom that as he wants to ply his car under Ola and Uber service the down payment of the car have to be made to the OP 3 i.e. OTL who will in term contact the OP 1 and the down payment of the car will be made by the OP 3 on behalf the complainant. The value of the said car is 10,88,000/-. The Complainant decided to make the down payment of Rs. 3,58,000/- from his savings and the remaining amount of Rs. 7,30,000/- would be taken from the OP No. 2 as loan. The Complainant as per advice of the OP 1 made the down payment of Rs.3,58,000/- to the OP 3 against that the OP 3 issued three receipts. Thereafter the Complainant approached the OP 2 with the receipt issued by the OP 3 for sanctioning the loan amount. The OP 2 on the basis of down payment made to the OP 3 disbursed the loan amount to the OP 1 but the car has not yet been delivered to the Complainant. The Complainant has been paying EMI at the rate of Rs.20,880 for the last nine months and paid a sum of Rs.1,87,920/- but not yet received the car. On query to the OP 1 it is understood by the Complainant that the OP 1 has not received the payment from the OP 3 for which they are not in a position to deliver the car. The Complainant is paying EMIs for the loan disbursed by OP 2 to OP 1 and the car is not delivered by the OP 1. Finding no other alternative the Complainant has approached the Commission for justice with the prayer as mentioned in the petition.
The OP 2 Mahindra & Mahindra Financial Service has contested the case by filing WV contending inter alia that the said petition is not maintainable in law and/or in facts stated therein. Moreover the Complainant is not a consumer as he has admittedly purchased the said asset for commercial purpose. As per WV the Complainant approached the OP 2 for financial assistance for purchasing a commercial vehicle. After perusing necessary papers the OP 2 granted financial assistance of Rs. 7,30,000/- vide Loan cum Hypothecation Agreement No. 4878097 dated 20.07.2017 executed between the parties. The OP 2 transferred the amount so granted to the OP 1 on 24.7.2017. The EMI amount fixed was Rs.20,880/- for 47 months starting from 15.08.2017. The Complainant paid 9 (nine) installments and thereafter started defaulting. The dispute between the Dealer and the Complainant for non supply of car is no way connected to the repayment of the EMIs as attempted to be established by the Complainant. As per WV the OP 2 can take action under law to recover the dues.
Now, on perusing the WV filed by the OP 1 viz B.D. Automobiles Pvt. Ltd. Eastern Honda it is observed that the allegation of taking the down payment by the OP 3 on the advice of OP 1 is a total lie. The OP 1 has got no concern at all with the activities of the OP 3 , as such it is strongly denied that OP 3 took the down payment of the car on the advice of the OP 1 as alleged. The Complainant is called upon to prove the same strictly. Moreover the Complainant is not a consumer under Section 2(1)(d) of the C P Act,1986 as he has purchased the car for commercial purpose. The Complainant was not advised by the OP 1 that the down payment of the car have to be made to the OP 3 who will in turn contact the OP 1 and the down payment of the car will be made by the OP 3 on behalf of the Complainant is totally false which is strict to be proved by the Complainant. The value of the car is not Rs.10,88,000/- as alleged rather as per sales contract the value of the car is Rs.10,60,483/-. It is also stated that the OP 1 has no knowledge as to what has been decided by the Complainant regarding down payment and loan for the vehicle. The OP 1 admits that they have received Rs.7,19,505/- from the OP 2 for the subject vehicle. The OP 1 has not got the balance amount for which question of delivery of car does not arise and in view of that there is no deficiency of service on the part of OP 1. The letter confirming the payment of Rs.4,40,892/- vide Cheque No. 000608 dated 27.06.17 allegedly issued by the OP 1 addressed to the Mahindra Finance is a Fake and Fabricated document. The Complainant is called upon to prove the same strictly. The Complainant is therefore not entitled to any relief or reliefs as prayed for. The case has been proceeded ex parte against the OP 3.
Points for Determination
On the pleading of parties the following points have necessarily come up for determination.
- Whether the OP 1 and/or the OP 2 have got deficiency in service.
- Whether the OP 1 and/or the OP 2 are indulging unfair trade practice.
- Whether the Complainant is entitled for the relief/reliefs as prayed for.
Decision with Reasons
Points Nos. 1 to 3 :-
All the points are taken up together for the sake of convenience and brevity in discussion.
Complainant, OP 1 and OP 2 have tendered their Evidence on Affidavit. They all have filed replies to the Questionnaire set forth by their adversaries. They have submitted their BNAs also.
We have travelled over all the documents placed on record.
Facts remain that the Complainant purchaser came in a Sales Contract with the OP 1 for purchasing the subject vehicle for a total price of Rs.10,60,483/- as evident from the record dated illegible filed by the OP 1 whereas the Complainant has mentioned the value of the car is Rs.10,88,000/- in the Evidence. As per his statement in the Evidence the Margin Money paid is Rs.3,58000/- to the OP 3. The said amount appears to have been paid by three installments, one of Rs.1,00,000/- by Cheque No.119136 dated 24.07.2017 drawn on Central Bank of India Rajarhat Branch, Kolkata, the second one being Rs.2,28,000/- vide Cheque No. 880571 dated 16.06.2017, drawn on SBI, Narayanpur and the balance amount of Rs.30,000/- paid by cash. The loan value mentioned by the Complainant is Rs.7,30,000/-. No document confirming the sanction of vehicle loan has been furnished by the Complainant.
The statement on oath by the Complainant regarding payment of margin money to the OP 3 at the advice of OP 1 is not supported by any document. This appears to be a self made story. Moreover there is strong denial by the OP 1 regarding the said advice as alleged. Hence payment of margin money to the OP 1 through OP 3 as claimed by the Complainant is not proved. Out of the total value of Rs.10.60,483/- the OP 1 received Rs.7,19,505/- from the OP 2. As such the balance payable amount of Rs.3,40978/- has not been received by the OP 1. However we have not found any reminder letter issued by the OP 1 to the Complainant to pay the balance amount though it has been said by the OP 1 that they have reminded him several times. During cross examination in between the Complainant and the OP 1 it is understood that the Complainant is presumed that the OP 1 has received Rs.4,40,892/- plus the loan value of Rs.7,19,505/- against the said vehicle. Acknowledgement from the OP 1 is there regarding receipt of Rs.7,19,505/- from the OP 2. But the receipt of payment of Rs.4,40,892/- as produced by the Complainant is not genuine in the sense that the Cheque details of the said payment is quite incomplete. Moreover the Complainant has not proved the said payment by producing relevant documents He showed documents of payment of Rs.3,58,000/- as margin money whereas the alleged receipt confirms payments of Rs.4,40,892/-. The Complainant has admitted that he has got the receipt from the OP 2 which has not been denied by the OP 2. This fake and forged receipt give rise to so many doubts. Wherefrom the receipt has been received by the OP 2. The OP 2 is quite silent on this issue. Relying upon the receipt of down payment which is lacking the material information of the payment particulars, the OP 2 has sanctioned and disbursed the loan amount. They have not enquired upon the issuance of the receipt from the OP 1 when there is wrong/incomplete information about the payment particulars nor they have enquired any information about the said payment from the Complainant purchaser. This is something very unusual and give rise to so many doubts. The OP 2 has not submitted the sanctioned particulars of vehicle loan. How they have arrived at the loan value of Rs.7,19,505/-. We don’t find any communication nor any clarification in between the OP 2 and the Complainant purchaser. Lack of clarity in the said matter in between the OP 2 and the Complainant purchaser is very much over there. It is also very surprising that without getting the vehicle how and why the Complainant purchaser has continued repayment for nine months EMI. Why he has not knocked the door of the OP 1 about the reason for non delivery of the vehicle. When we look to the Questionnaire of the Complainant to the OP 2 and their replies under Question No. 18 we observe the following.
Q 18. “ Mr. Halder do u have the knowledge whether the Complainant has made the Down Payment or not.
Answer : -“ It appears that the Complainant is the best person to answer the said question and down payment is deposited with dealer and not with our Company.”
The said reply indicates an avoidance of disclosing the truth about the said payment.
While examining the questions and answers in between the OP 1 and the Complainant we find that the Complainant is leveling charge against the OP 1 of accepting the down payment of Rs.4,40,592/- from the Complainant. But for that no proof of payment has been filed by the Complainant. We do not understand how he is relying upon the fake receipt which he has confessed to have been received from the OP 2. Considering the facts of the case and the documents submitted it is however established that the OP 1 has received a payment of Rs.7,19,505/- from the OP 2 and the Complainant has paid 09 (nine) EMIs amounting to Rs.1,87,920/- to the OP 2 and the subject vehicle is not delivered.
Under the above situation we are of the considered view that there is deficiency in service and unfair trade practice on the part of the OP 2.
Thus all the points are answered in the affirmative .
In the result, the Complaint succeeds.
Ordered
That the Complaint case be and the same is allowed on contest against the OP 1 and the OP 2 and ex parte against the OP 3 with the following directions.
- The OP 1 is directed to refund the loan amount of Rs.7,19,505-/ to the OP 2 by deducting Rs.1,87,920/-.
- The amount of Rs.1,87,920/- so deducted from Rs.7,19,505/- be paid to the Complainant.
- The OP 2 is directed to issue NOC to the Complainant immediately on receipt of the amount of Rs.5,31,585/- from the OP 1.The OP 2 is further directed to pay a litigation cost of Rs.5,000/- to the Complainant.
- The OP 3 is directed to refund the sum of Rs.3,58,000/- to the Complainant with simple interest at the rate of6 percent p.a. from the date of payment till its realization.
- The above orders are to be complied with by the OPs within a period 15 days from the date of receipt of the order else the Complainant will be at liberty to put the order in execution as per rules.
Order be communicated to the Complainant as per rules and the judgment be uploaded forthwith on the website of the Commission for perusal of the parties.
