JUDGEMENT

          Complainant by filing this complaint has submitted that complainant booked one Hyundai Verna (1.6) SX(0) VGT, Sleek Silver Car at a price of Rs. 11,49,424/- inclusive of Insurance Premium, Taxes and other fees on payment of booking amount of Rs. 1,00,000/- by cheque being No. 018611 dated 03.05.2012 on Axis Bank and another booking amount of Rs. 4,54,424/- by cheque being No. 018627 dated 21.06.2012 on Axis Bank and total booking amount was paid by the complainant of Rs. 5,54,424/- to the op no.1.

          Op no.4 issued a printed Order Booking Form on 03.05.2012 with certain terms and conditions and in condition no. 2, it is stated that the car will only be delivered upon receipt of payment in full and all payments to be made by cheque/DD in favour of the company payable at Kolkata and the said op assured the complainant to give delivery of the car within 15 days positively from the date of full payment of the agreed price.  Accordingly complainant requested to the op no.4 for arranging financial help to be taken as loan from a financial company and the op no.4 introduced the complainant to op no.5 for the purpose and op no.5 agreed to extend the new auto loan facilities to him after a talk to the op no.4 in the matter.

          That on 03.05.2012 op no.5 sanctioned loan of Rs. 6 lakhs in the month of June for booking the car with op no.4 in the name of complainant on condition of repayment by 36 equal installments @ Rs. 20,216/- effective from 03.08.2012 and payment shall be continued till 03.07.2015.  The repayment or recovery shall be made through Electronic Clearance System (ECS).  Op no.5 handed over the loan amount of Rs. 6 lakhs to the op no.4 towards the price of the booked car without asking anything to the complainant.  Though full payment of the car was received by op no.4 but they neglected and failed to deliver the car to the complainant as per verbal commitment.  Though complainant made repeated request to the op nos. 1 to 5 for immediate delivery of the car, but the op no.4 did not pay any heed and verbally assured to deliver the same without further delay.  In fact op no.4 despite full payment did not deliver the car at all for which complainant suffered and this fact was informed to the op no.5 who started to realize EMI from the Axis Bank (AXS) through ECS on 03.08.2012.  But op no.5 though verbally assured to complainant to deliver the booking car without further delay by op no.4.  Unfortunately till todate the said car has not yet been delivered.  So finding no other alternative complainant asked to refund the total amount of money paid towards the price of new car and op no.4 lastly refunded amount of Rs. 5,62,194/- in favour of complainant no.2 and complainant acknowledged the said cheque and deposited to his Axis Bank Ltd. at Andul but the cheque was dishonoured on 16.08.2012 by HDFC Bank Royad Street, Branch Kolkata.  Complainant informed this incident to op no.4 on 21.08.2012 stating all the facts and demanded cash or DD within 10 days.  Op no.2 & 3 immediately had come to complainant’s place and issued a second cheque of Rs. 5,62,194/- of HDFC Bank being cheque No. 00458 dated 27.09.2012 and the second cheque was also dishonoured and received memo which was returned to Axis Bank Ltd. for insufficient funds.  But op no. 5 realised from the complainants’ bank that the EMIs and the complainant being frustrated decided not to keep sufficient amount in his bank account so that op no.5 cannot realize further EMI from his account from 03.08.2013.

          In the meantime op no.5 through its Advocate R.K. Puja and Sri Saikat Ghosh has sent notices on 26.10,2013 and 28.10.2013 for Payment of all Settlement System Act-2007 to the complainant.  But complainant is in a very critical position for not getting the said car and for not getting certificate and undoubtedly the entire conduct of the ops are no doubt unfair trade practice and they acted collusively for their illegal monetary gain and op no.4 did not disclosed the complainant as to why the car was not delivered to him in spite of full payment of the price of the booking car within 15 days of the payment in full as per assurance and understanding.

          Further op no.5 has also adapted a tricks and unfair trade practice by sending legal notices in spite of receipt of 12 payments of the loan amount and without refunding the amounts realized of EMIs from August-2012 to July 2013 i.e. 12 EMIs of Rs. 2,42,592/- though he knew fully well that the car has not been ever delivered to the complainant but op no.5 did not take any positive steps with the op no.4 regarding the delivery of the car within 15 days from the full payment to the complainant and in the above circumstances and considering the deficiency and negligence and for adopting unfair trade practice the present complaint has been filed by praying for refund of amount etc.

          On the contrary op nos. 1 to 4 jointly by filing written statement submitted that the present complaint is not maintainable and further it was submitted that there is no money due and payable by the answering ops to the complainant as alleged or at all.  The payment of Rs. 5,54,424/- which was paid by the complainant to op no.1 was returned to the complainant and a sum of Rs. 5,54,424/- was paid by the complainant to op no.1 for purchase of Hyundai Verna Car and the said money was paid as booking money for the said car.  After such payment was made complainant kept on changing the model of the car and the colour, and this change was not done at once but again and again as the particular model and colour was not available with the op no.1 at that relevant point of time.  So, complainant was requested to wait till said model and colour of the car is available.

          As per usual practice a dealer like op no.1 placed order for car with the manufacturer and on the basis of the order cars is sent by the dealer.  Due to constant change of the model and colour there was a major problem faced by the answering ops and due to the above op no.1 cancelled the booking and refunded the sum of Rs. 5,54,424/- to the complainant and such refund was made by cash against money receipt signed by the complainant.  But subsequently op no.1 faced certain financial difficulties as a result of which a petition was filed by a creditor before the Hon’ble High Court at Calcutta by order dated 15.01.2013 that the Hon’ble High Court was pleased to admit the winding up petition but subsequent order dated 26.03.2013 Hon’ble High Court at Kolkata was pleased to pass final order of winding up of op no.1 and the Official Liquidator, High Court, Calcutta took actual physical possession of the assets, properties and books of accounts, documents of op no.1and possession of the registered office of op no.1 was also taken and official Liquidator sealed the registered office and took away all records, books of accounts, documents of op no. 1

          Against that op no.1 preferred an appeal before the Hon’ble Division Bench, High Court at Calcutta against final order of winding up and in terms of the order dated 24.04.2013, Hon’ble Appeal Court payments are being regularly made by op no.1 and there is no default of such payment till date and Hon’ble Division Bench was pleased to stay the winding up and direction was passed on the office Liquidator, High Court, Calcutta to remove its padlock from the registered office and handed over back the same to op no.1.  

          Subsequently return of all documents, correspondence and books of accounts relating to transactions are not in the possession of op no.1 and op no.1 has searched its records as available but the money receipt issued by the complainant upon taking refund of the sum of Rs. 5,54,424/- was not found in its records.  As such op no.1 is not possession of the money receipt and is not in a position to produce the same before this Forum and this situation is absolutely beyond the control of the answering ops.

          It is further submitted that op no.5 sanctioned loan to the complainant or that such sum was paid by the op no.5 to the answering ops.  It is denied that op no.5 has paid any amount to the answering ops to the complainant as stated in the complaint and when the entire booking amount was paid by the answering op, complainant there is no deficiency of service and op is not liable to pay any amount to the complainant and all allegations are false and fabricated and for which the present complaint should be dismissed.

                                                 Decision with reasons

          On proper assessment of the complaint and written version including the documents as produced by the complainant and also the argument are advanced by the Ld. Lawyers of both the parties, it is clear that admitted position is that complainant for the purpose of purchasing a TATA Model car as mentioned in the complaint or body of the complaint and paid Rs. 1,00,000/- on 03.05.2012 and Rs. 4,54,424/- on 21.06.2012 to Concord Hyundai Automobile Pvt. Ltd. and in support of that op nos. 1 to 4 issued proper receipt and details of the car for booking is also noted and both the amount were paid to the op nos. 1 to 4 and accordingly they issued one printed Order Booking Form of Concord Hyundai Verna Car dated 03.05.2012.  It is equally true in respect of payment of balance amount of Rs. 6 lakhs, complainant took loan from TATA Capital Financial Services Pvt. Ltd. and TATA Capital Financial Services Pvt. Ltd. granted such loan against the Loan A/C No. 7000151053 for Auto Loan and that amount has also been encahsed by the op nos. 1 to 4.  But even after that the car has not been delivered by the op nos. 1 to 4 to the complainant and fact remains that op in his written version has admitted that in page-3, para-XI that op no.1 cancelled the booking and refunded the sum of Rs. 5,54,424/- to the complainant and such refund was made by cash against money receipt signed by the complainant and about that complainant has proved that the said payment was made by cheque and that cheque was dishonoured by the banker of the op and cheque No. is 0562194 and after that another cheque was issued being No. 0458 and same is also dishonoured by the banker of the op and the said two cheques were of dated 08.08.2012 and 27.08.2012.

          But most interesting factor is that the present op nos. 1 to 4 who are dealing with business of selling vehicle or motor or car has no doubt adopted unfair trade practice and it is proved beyond any manner of doubt that they are running a cheating business in the market by collecting advance money from the intended purchasers for car and had been spending said amount for their own benefit without delivery of the car and in this case op had admitted that he did not deliver the car then for what reason op nos. 1 to 4 received the balance amount from the TATA Capital Financial Services Pvt. Ltd. that is Rs. 6 lakhs.  Then it is clear that there is a conneivance  in between the op nos. 1 to 4 and 5 and adopting such manner of deciving the customers they have their tie up for granting loan by the op no.5 and this op no.5 is no doubt another cheater in the business of granting loan and they are sitting in the office and Op nos. 1 to 4 have deceived the customers in such a manner.

          But peculiar factor is that this dishonest op nos. 1 to 4 have tried to convince that the said amount had already been paid to the TATA Capital Financial Services Pvt. Ltd. but they have denied it.  But truth is that cheque was issued in the name of op nos. 1 to 4.  Then it is clear from complaint that op no.4 received the total price of the car and total amount is Rs. 11,49,424/- for which it is also proved that op nos. 1 to 4 before this Forum has tried to misguide by false and fabricated statement and only for the purpose of avoiding the claim of the complainant.  Invariably such sort of business men like op nos. 1 to 4 should be properly dealt with when truth is that op nos.1 to 4 already received a sum of Rs. 11,49,424/- out of which complainant personally paid Rs. 5,54,424/-.  Op nos. 1 to 4 received Rs. 6,00,000/- from the financer and financer of TATA Capital Financial Services Pvt. Ltd. already paid the amount to the op nos. 1 to 4.  But car had not been handed over to the complainant and that is admitted by the op nos. 1 to 4.  Then it is clear that op nos. 1 to 4 and 5 with connivance with each other have been running the business for selling car and granting financial loan to the customers by adopting unfair trade practice and that practice has been continued by them.  But even then they did not confess before this Forum that op nos. 1 to 4 received it but for some reasons it could not be paid but it shall be paid within reasonable period.  But without taking such plea after grabbing the entire amount of Rs. 11,49,424/- and in the written version of the op it is admitted that he realized the entire amount but he has tried to say that he paid the same in cash that is proved a false story and this false defence has been taken by op nos. 1to 4 only for the purpose to deceive the complainant and also to avoid refund and no doubt it is deceitful act on the part of the op nos. 1 to 4 and in fact already op no.5 the Financial Company began to deduct EMIs from the complainant.

          Accordingly the OP5 who issued the cheque in favour of op nos. 1 to 4 has been taking monthly EMI and already 12 to 13 EMI had been deducted from the complainant’s own account.  But complainant has not yet got the car.  So, it is clear that complainant has been suffering from financial loss without getting the fund and he has been paying EMI and financial institution has played a bad play against him and in future the complainant shall have to pay EMI for releasing cheque by the op no.5 and that process has been taken.  But fact remains without asserting the fact of the delivery of the car by the op nos. 1 to 4 op no.5 issued a cheque in favour of the op nos. 1 to 4 that is completely beyond the rule of law.  Because it is mandatory provision of law that on the date of delivery and after submission of the delivery receipt of the car by the seller or dealer of the car the cheque shall be handed over to the dealer or seller of the car on behalf of purchaser but that has been paid by the financial authority without getting delivery receipt of car.  Then it is clear that there is unfair trade practice adopted by op nos. 1 to 4 and 5 and they are running such business and truth is that op nos. 1 to 4 realised the loan amount from the financer and they have invested it in their business and they are getting profit.  But complainant is completely deprived from getting car and service of the op nos. 1 to 4 and 5 and also the total failure on the part of the op nos. 1 to 4 to handover the car as yet.

          So, it is proved that op nos. 1 to 4 and 5 no doubt failed to discharge their duties as service provider and also failed to act accordingly and as per morality of the trade and at the same they have deceived the complainant in so many manner which is proved and at the same time it is proved that ops no.1 to 4 received total Rs. 11,54,524/- but that has not yet been refunded and fact remains op nos. 1 to 4 with some purpose cancelled the said booking of the car by realising the total amount of the car.  It is no doubt an unfair trade practice and cheating business on the part of op nos. 1 to 4 .  Fact remains op nos. 1 to 4 is cheater and in such a manner so many cases are filed against them.  Though they have their fund to refund but even then they are harassing the customer in so many manner and in this regard op no.5 is related with the op nos. 1 to 4 in the field of cheating business and unfair trade practice and for which we are confirmed to hold that complainant has proved it beyond any manner of doubt and malpractice in trading car business by the op nos. 1 to 4 and also financial institution of op no.5 for joining hand with them to run such a unfair trade practice and for which the complainant is entitled to get such relief as prayed for.

          Hence, it is

                                                           ORDERED

          That the complaint be and the same is allowed on contest against op nos. 1 to 4 with cost of Rs. 10,000/- and same is also allowed with cost of Rs. 10,000/- against op no.5 in ex parte form.

          Op nos. 1 to 4 is hereby directed jointly and severally to pay and to refund the amount which was received from the complainant with interest 12% p.a. with effect from 21.06.2012 and till its full payment and same shall be paid within one month from the date of this order.

          Further the op nos. 1 to 4 shall have to refund the total amount as received from OP5 as loan amount of the complainant and thereafter OP5 shall refund Rs. 2,42,592/- to the complainant within one month from the date of this order along with bank rate interest as assessed by the OP5.

          For adopting unfair trade practice and for harassing the complainant in such a manner and for not getting such service even after payment of full amount of the car op nos. 1 to 4 are jointly and severally directed to pay of Rs.50,000/- to the complainant within one month from the date of this order. 

For adopting unfair trade practice and deceitful manner of trading and selling such car to the customers and to check their such sort of cheating and dishonest business in future by op nos. 1 to 4 are specially imposed punitive damages to the extent of Rs. 50,000/- each which shall be paid by them to this Forum within one month from the date of this order.

          Op no.5 is also imposed punitive damages of Rs. 50,000/- for adopting unfair trade practice in connivance with op nos. 1 to 4 and to check this practice in future by the op no.5 is imposed punitive damages to the extent of Rs. 50,000/- which shall be paid to this Forum within one month from the date of this order.

          All the ops are directed to satisfy the decree and to deposit the amount to the Forum which is imposed as punitive damages and shall have to pay other decretal amount within one month from the date of this order failing which for disobeyance and non-compliance of the Forum’s order penal interest @ Rs. 500/- shall be paid by op nos. 1 to 4 and 5 till full satisfaction of the decree and even penal proceeding shall be started against them as per provision of Section 27 of C.P. Act 1986 for which they shall have to pay further fine and penalty.