Rajeshwar @ Rajesh Tyagi has filed the instant consumer complaint against M/s Audi India, OP-1 ( Proprietorship/Group concern/Division of Volkswagen Group Sales ( I) P. Ltd., OP No.2 Audi Finance ( Proprietorship of Volkswagen Finance P. Ltd and OP no. 3 & 4 Audi Delhi West and Audi Delhi South, dealers of OP No.1

2.         Briefly stated, the case of the complainant is that in March 2013, the complainant came across a promotional advertisement in respect of the offer given by the opposite parties, which reads as under:

“Book now.

Offer Valid on the Audi Q3 till 10.00 pm, 19^th March.

₹ 24 lakh at O% for 36 months with a down payment of ₹ 5 lakh.

Audi Finance     www.audi.in.”

3.         It is the case of the complainant that on coming across the said advertisement, the complainant  promptly sent a message to the opposite party showing his willingness to accept the alluring offer.  The complainant vide his emails dated 18^th and 19^th March, 2013 called upon the opposite parties for the needful to effectuate and execute the order.  It is contended that time being short, the complainant sought bank account number of the opposite parties to deposit the cheque for down payment of Rs.5,00,000/- unless the opposite party desired and opted to get it collected.  The opposite parties, however, did not honour email of the complainant showing acceptance of the offer and willingness to tender the down payment.  It is alleged that opposite parties wasted invaluable time, ensuring lapse of the offer given in the above noted advertisement and later quoted higher price on 06.04.2013, which was almost one and half times to the advertised price of sale offered by the opposite parties.  Even though the complainant’s driving license was called for by the opposite party no.3 on 12.04.2013, opposite party no.3 took a total turn around, which showed that the intention of the opposite parties was anything but bonafide and business like.  It is further alleged that OP No.3 sought meeting with him vide email dated 18.04.2013.  The meeting took place on 23.04.2013 and it failed because OP No.3 insisted on higher price already quoted in its invoice earlier.  Similarly, OP No. 4 also quoted a higher price and denied to supply the subject SUV as per the above noted promotional offer of the opposite parties.  It is alleged that because of refusal of opposite party to sell / deliver the car in question as per the advertised offer, the complainant has suffered immensely, the opposite parties are, therefore, held liable to the bargain offer as per the advertisement.  It is alleged that opposite parties are thus guilty of adopting unfair trade practice for the purpose of promoting the sale of one of their products.  Hence, the complaint seeking following reliefs:

“1. To accept this as a class action complaint appointing and treating this complainant representing the said class.

2.  Opposite Parties, in deference to their advertisement, be directed and ordered to sell/supply/deliver the car being the top diesel variant of SUV AUDI-Q3, at the all told and advertised on road price of Rs29 Lakhs with down payment of Rs.5 lakhs and balance Rs.24 lakhs on interest free 36 equated monthly instalments of Rs.66,666 each vide Annexure P/I.

3.  Complainant further prays for award of Rs.5.50 crores as damages on account of pain, agony and harassment from the false representations of Opposite Parties and to decline and refuse the offer as aforesaid to complainant.  Amount claimed with interest @ 12% p.a. from date of filing of this complaint till actual payment.

4.  Opposite Parties be directed to pay to the State a sum of Rs.100 crores as punitive damages for adopting an unfair Trade Practice of false, deceptive and advertising and for the malpractice of BAIT and SWITCH to charge a different and higher price as against their advertised promotional offer to the public at large, and all this only for their Unjust Enrichment.

5.  To refer the case to authority regulating and controlling false, deceptive and misleading advertising in India.

6.  Towards the cost of litigation and related expenses Rs.100.000

7.  Such other alternate relief, costs and / or damages as the Hon’ble Forum may deem fit and proper in the circumstances of the case.”

4.         My learned predecessor after hearing the complainant preferred to issue pre admission notice to the opposite parties.  Pursuant to the notice, the respective opposite parties have filed separate replies resisting the complaint.  One of the pleas taken by the respective opposite party is that opposite party cannot be held liable for deficiency in service particularly when there is no relationship between the complainant and the respective opposite parties.

5.         We have heard arguments on admission and perused the record.  The contention of the complainant is that opposite parties have indulged in unfair trade practice by advertising a promotional offer stating that “₹ 24 lakh at 0%  for 36 months with down payment of ₹ 5 lakh,” without any  intention to honour the offer by selling the advertised Audi car to the persons accepting the offer for Rs.29 lakhs.

6.         The first question which needs consideration at the time of admission is whether or not the complainant is covered under the definition of consumer as defined under section 2 (1) (d) of the Consumer Protection Act, 1986 ( in short, the Act) and if not, whether the consumer complaint is maintainable?

7.         In this regard emails dated 18^th & 19^th March, 2013 sent by the complainant to the opposite parties assume importance.  Contents of Emails are reproduced as under:

“From : Rajesh Tyagi (mailto:tyagi.rajeshwar @gmail.com)

Sent : Mondy, March18, 2013 2:11 PM

To : Subject:  Audi Q3 Offer vide the enclosed AD in Delhi Times of TOI issue dated 17-Mar-13

Sir,

Undersigned accepts your offer for an Audi Q3 SUV at Rs.24 lakhs vide the enclosed Ad at the price stated in the AD.  Gainsay you ad is to the effect “Rs.24 lakhs at O% for 35 months with down payment of Rs. 5 lakhs.

May please acknowledge my acceptance and do the needful for delivery of the vehicle within the stipulated time as borne from the AD of at least complete the necessary formalities as desired in the AD.

Yours Faithfully

Rajesh Tyagi, Advocate

From : Rajesh Tyagi (mailto:tyagi.rajeshwar @gmail.com)

Sent : Mondy, March18, 2013 2:47 PM

To : Subject: Corrigendum to my offer a while ago

The Ad reproduced in the mail below needs to be corrected and it is as under.

Rs.24 lakhs at O% for 36 months with a down payment of Rs.5 lakhs”

Rajesh Tyagi, Advocate

From : Rajesh Tyagi (mailto:tyagi.rajeshwar @gmail.com)

Sent : Monday, March19, 2013 9:56 AM

To : Subject:  Invoice for the stipulated price in the AD and bank detail

Sir,

     Please email the invoice for the price as advertised and also your bank a/c no to enable the undersigned tender his cheque for Rs.5 lakh to avail the offer vide your captioned AD. Hope I get it sooner than later.

Rajesh Tyagi, Advocate

From : Rajesh Tyagi (mailto:tyagi.rajeshwar @gmail.com)

Sent : Mondy, March19, 2013 4:19 PM

To : Subject:  Tender for Down Payment of Rs.5 lakhs.

Sir,

     Undersigned is awaiting invoice and details of your bank a/c to tender the cheque for down payment in terms of the offer made by you vide the captioned Ad and stated in the mail message of the undersigned as below.  Hope I get the necessary details to avail and fructify the offer by the stipulated time today.

Thanking you in anticipation

Rajesh Tyagi”

8..        On reading of the above, it is clear that even if it is assumed that the above noted emails were received by the opposite parties, the complainant by the aforesaid emails only showed his willingness to accept the offer and sought details of invoice pertaining to the Audi car as also the bank account of the opposite party to tender the cheque for down payment.  There is no allegation that the cheque for down payment was ever deposited in the account of any of the opposite party or was tendered and accepted by the opposite parties.  Thus, it is clear that till date, the complainant except for showing his willingness has not entered into any binding contract with the opposite party in respect of the above noted agreement offering finance of Rs.24 lakhs on 0% interest for 36 months in the event of down payment of Rs.5 lakhs.  As no binding contract has come into existence between the parties, the complainant cannot be termed as consumer of the opposite party qua the purchase of Audi car.   Now, the question arises for consideration is as to whether in the absence of a binding contract between the complainant and the opposite parties, the complainant can be said to be consumer of the opposite party or anyone of them?

9.         Hon’ble Supreme Court in the matter of Morgan Stanley Mutual Fund Vs. Kartick Das (1994) 4 SCC 225 while dealing with similar issue pertaining to the complainant who had applied for allotment but to whom no allotment was made, Hon’ble Supreme Court interalia held as under:

“Therefore, it is after allotment, rights may arise as per the contract (Article of Association of Company).  But certainly not before allotment.  At that stage, he is only a prospective investor (sic in) future goods.  The issue was yet to open on 27.04.1993.  There is not purchase of goods for a consideration, nor again could he be called the hirer of the services of the company for a consideration.  In order to satisfy the requirement of above definition of consumer, it is clear that there must be a transaction of buying goods for consideration under Clause 2(1)(d)(i) of the said Act.  The definition contemplates the pre-existence of a completed transaction of a sale and purchase.  If regard is had to the definition of complaint under the Act, it will be clear that no prospective investor could fall under the Act”.

10.       Similarly in the matter of PUDA &  Anr. Vs. Krishan Pal Chander I (2010) CPJ 99 (NC), the Coordinate Bench of this Commission also took the view that complainant in whose favour no allotment has been made, is not a consumer.  Similar view was taken by this Commission in the matter of DDA Vs. Sandeep Khatri, Revision Petition No. 710 of 2014 decided on 25.08.2014 as also judgment of Coordinate Bench of this Commission in Revision Petition No. 3649 of 2014 decided on 29.01.2015.

11.       In the light of the above noted settled position in law when we consider the facts of this case wherein the offer of the opposite party vide advertisement has not culminated into contract, the complainant cannot be termed as consumer.  As such, he has no locus standi to maintain he consumer complaint.

12.       Otherwise also, on careful perusal of the advertisement noted above, which is the foundation of this complaint, it transpires that this advertisement nowhere states that Audi car would be sold to the person accepting the offer under the advertisement for Rs.29 lakhs.  It only claims that on  down payment of Rs.5 lakhs, Rs.24 lakhs would be financed by M/s Audi Finance on O% interest for 36 months. Therefore, also, it cannot be said that by asking for price higher than Rs.29 lakhs for sale of Audi car, the opposite parties has committed any unfair trade practice.

13.       In view of the discussion above, we are of the opinion that complainant not being the consumer has no locus standi to maintain this complaint. Otherwise also, there is no merit in the complaint.  Complaint is accordingly dismissed.