Order No.                 .

This is an application u/s.12 of the C.P. Act, 1986.

          The verse of the complainant is that OPs No.1 and 2 are directors and OP3 is the Manager of Priyam Motors Sales (Pvt.) Ltd. dealing with sale of cars and motors etc. and complainant with an intention to purchase a used car approached the OP and further the complainant on different dates paid in part a total sum of Rs.,1,64,000/- for proposed purchase of an used Scorpio Car being NO.WB 20 Z 1545 but thereafter the said used car appeared to be defective and other ambiguity being found the complainant changed his mind for purchasing a new car of similar description or any other make and accordingly he handed over a further amount of Rs.1,00,000/- against cash receipt No.632 dated 01-12-2013 and thus the complainant altogether paid a total sum of Rs.2,64,000/- to the OP for purchase of new car.

          OP assured the complainant that the OP has booked one new car as per specification of the complainant at M/s. Mohan Motors being one of the Mahindra & Mahindra Showroom and the complainant shall get delivery of the said car very shortly but later it is learnt by the complainant on enquiry that no booking has been made by the OP in the name of the complainant and being frustrated the complainant approached the OP for refund of the advanced money when the OP issued some order cheques against the name self to the complainant for Rs.5,000/-, Rs.25,000 and Rs.50,000/-  assuring that the complainant can easily encash the same early than that of the A/c. Payee cheques but the complainant could not encash the said cheques at the bank due to non-availability of fund as well as order cheques issued in favour of self cannot be encashed by any person other than the account holder.

          In the above situation the complainant again met the OP but the OP after avoiding the complainant for two months refund Rs.5,000/- on 24-02-2013 and Rs.25,000/- on 25-03-2013 i.e. total Rs.30,000/- only but since then the OP did not refund balance amount out of total payment of Rs.2,64,000/- after adopting some unethical tactics and unfair business only to cheat the complainant.

          Finding no other alternative complainant sent Advocate’s letter toi the OP for refund of the said amount of Rs.2,34,000/- only but OP instead of refunding the same has sent Advocate’s reply in disputing the amount paid by the complainant as well as mode of refund made by the OP.

          On 10-03-2013 the complainant went to the showroom of the OP in order to get his refund but the OP abused the complainant by using in most filthy languages and further threatened the complainant with dire consequences, when complainant lodged a written complaint with the Phoolbagan P.S. on 10-03-2013.

          No doubt OP did not discharge his responsibility and OP’s act is deficient and negligent manner and by their act complainant has been harassed mentally and physically and OP has also caused financial loss and by adopting unfair trade practice OP has been harassing the complainant and in the above situation complainant was compelled to file this complaint for rederessal.

          OP by filing power of one Debesh Halder, Advocate appeared before the Forum after receipt of the notice and further they also filed authorization letter of one Ranjit Kabiraj as their authorized representative to appear before this Forum day to day on the basis of authorization letter dated 05-09-2013.

          Subsequently, on 12-09-2013 written objection was filed by the OPs stating that the complainant booked one new car i.e. Mahindra Scorpio and paid a sum of Rs.2,24,000/- out of Rs.10,51,706/- and due to inability to collect the balance amount from the Bank, the complainant cancelled the said car booking and requested for refund of the said amount and as per the complainant’s request, the complainant already paid a sum of Rs.30,000/- and the OPs also promised to pay the balance amount within very short period because the OPs have already paid the amount to the principal company i.e. Mohan Motor Business Pvt. Ltd.

          It is further submitted that in the mean time, the complainant suppressed the actual facts and lodged a complaint before the nearest P.S. and also filed a case before the Ld. ACJM at Sealdah and the said court issue warrant of arrest against the OPs and they surrendered before the Ld. Session Judge at Alipore and the Ld. Court considering the facts and circumstances of the case granted bail in Misc. Case No.6374 of 2013.  It is further alleged that from the complaint it is clear that complainant only tried to get refund of the money from the OP so it is a claim of refund of money only which does not come under the purview of C.P. Act and it is also settled law that during pendency of the criminal proceedingLd. Forum has no jurisdiction to entertain the case and until and unless the criminal case is disposed of so the Forum has no jurisdiction to entertain the case and if it is disposed of in that case OP shall be highly and seriously prejudised and in the above situation the OPs prayed for dismissal of this case.

Decision with Reasons

On conclusion of hearing of this case and also relying upon the complaint and written version, evidence in chief of both the parties it is evident fact that complainant went to purchase a car from the OP and OP has admitted that he received Rs.2,24,000/- and he has already paid Rs.30,000/- so, as per defence of the OP and OP admits that complainant is entitled to get back Rs.1,94,000/- not Rs.2,34,000/-.  But complainant has claimed that he paid Rs.2,64,000/- but he has got Rs.30,000/- back from the OP so, at present complainant is entitled to get back Rs.2,34,000/-.

          Considering that fact it is clear that Rs.30,000/- has been refunded by the OP and complainant has received it.

          Now, the question is whether actually the amount of Rs.2,64,000/- had been paid by the complainant to the OP or complainant paid only total amount of Rs.2,24,000/-.

          In this regard complainant has produced the receipts issued by the OPs wherefrom it is found that on the following dates by such receipts complainant paid the amount  - 1) Vide Receipt No.625 on 18-01-2013 complainant paid Rs.5,000/- , 2) Vide Receipt No.626 on 20-01-2013 complainant paid Rs.25,000/-, 3) Vide Receipt No.627 on 23-01-2013 complainant paid Rs.50,000/-, 4) Vide Receipt No.632 on 01-02-2013 complainant paid Rs.1,00,000/-, 5) Complainant paid on 21-01-2013 Rs.20,000/- by depositing the same on SBI, Ichapur Branch, to SB A/c. No.30701790180, 6) complainant paid on 22-01-202013 another amount of Rs.20,000/- deposited on the OPs Account in same manner, 7) on 25-01-2013 Rs.19,000/- was deposited in same manner to the account of the OP, 8) on 25-01-2012 another amount of Rs.25,000/- was deposited in SBI, Gurulia Branch to OPs the said account.

          Practically in respect of the above payments no doub t com plainiant has producedall the documents and OP has not denied those payments and at the same time OP has failed to challenge the deposits made by the complainant though OP has simply stated that OPs received only Rs.2,24,000/- from the complainant but truth is that OP has failed to prove the invalidity of the receipts as produced by the complainant.  on the contrary after careful consideration of those documents we have gathered that OP has tried to mislead this Forum about their claim that they received only Rs.2,24,000/-.  On the other hand, complainant by filing valid papers and documents have proved beyond any manner of doubt that they handed over a total cash of Rs.2,64,000/-.  So, the defence of the OP is proved a false story and OP as a big merchant or seller has adopted an unfair trade practice and even after receiving Rs.2,64,000/- has not accepted that they received the said amount but not such an amount of Rs.2,24,000/- as claimed to have been received but the entire materials on record support that OPs such a defence is false, fabricated and considering that fact it is proved that OP by adopting unfair trade practice and also unmerchantable practice tried to deceive the complainant to refund the balance amount out of total Rs.2,64,000/- when it is undisputed fact that OP has paid Rs.30,000/- and complainant admitted that fact so, deducting that amount it is found till today complainant is entitled to Rs.2,34,000/- from the OP and OPs are liable and bound to refund the same when he received the entire amount of Rs.2,64,000/- as booking amount for supplying the new car or vehicle to the complainant and it is admitted fact that OP admitted in the written statement that he received money for supplying the new order but truth is that OP has failed to supply the car as per said order and OP has also failed to prove that after receiving the said money from the complainant he booked the new car for the complainant but on the contrary it is proved that he enjoyed that money after receiving the same from the complainant the customer(consumer) and invested in their business but did not handover the car or vehicle.  It tantamounts to unfair trade practice and that practice is adopted by the OP in many cases which are also decided by this Forum.  So, it is clear that OP is engaged in regular businessman in selling new and old car and purchasing old car by adopting unfair trade practice and in such a manner have been procuring huge capital for their business by assuring the customer and has been collecting huge fund for their business and that fact has been proved beyond any manner of doubt by the complainant.  So, the amount as received by the OP as advance amount against supply of car is not a mere transaction of loan or mere taking advance of money from the complainant by the OP for any other purpose and for which no doubt complainant is a consumer under the OP and it is also proved that complainant has been cheated by the OP and further it is proved OP is a businessman of unmerchantable practice and he is regular practitioner of unfair trade practices in his daily business and for which compliant succeeds and complainant is entitled to get relief as prayed for and compensation etc.

Hence,

Ordered

That the case be and the same is allowed on contest with a cost of Rs.10,000/- (Rupees Ten thousand only) against the OPs jointly and severally.

          OPs are jointly and severally directed to pay a sum of Rs.2,34,000/-the amount as taken by the OPs as advance out of total advanced amount of Rs.2,64,000/- which was received by the OPs for the purpose of supplying a vehicle but that has not been supplied but that said amount has not yet been refunded by the OP and along with that amount OP shall have to pay a further amount of Rs.75,000/- as compensation for causing mental pain, agony and sufferings and also for utilizing the said money by the OP causing loss to the complainant and also for deceiving and cheating the complainant in such a manner.

          OPs are jointly and severally are hereby directed to pay the above amount of Rs.2,34,000/- (Advance amount against car) + Rs.75,000/- as compensation + Rs.10,000/- as litigation cost within one month from the date of this order failing which for non-payment of the same within the stipulated period OPs jointly and severally shall have to pay penal interest @Rs.300/- per day till full payment of the same to the complainant.

          For adopting unfair trade practice by the OPs and also for dealing an unmerchantable business in such a manner and also for deceiving the customer in such a manner punitive damages of Rs.75,000/-(Rupees Seventy Five thousand only) is imposed by this Forum to check their unfair trade practice and unmerchantable business in the market and same shall be deposited by the OPs jointly and severally before this Forum within one month from the date of this order.

          OPs are jointly and severally to comply the order very strictly and to satisfy the decree within the stipulated period of one month from the date of this order failing which for non-compliance of the Forum’s order penal action shall be started and the entire business may be closed down for non-implementation of the order and also for adopting unfair trade practice and even they may be sent to jail by imposing further penalty of Rs.10,000/- each against each of the OPs as per provision of Section 27 of the C.P. Act.

Dictated & Corrected