Delhi

East Delhi

CC/55/2015

AMIT - Complainant(s)

Versus

NAKSHA ENTERPRISES - Opp.Party(s)

22 Nov 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. NO.  55/15

Shri Amit Dayal

S.o Shri R. Dayal

R/o 132, Dayanand Vihar

Vikas Marg Extension

Delhi – 110 092                                                           ….Complainant

Vs.

1. Naksha Enterprises Pvt. Ltd.

G-25, Sector – 11

Noida – 201 301, UP

Through its Managing Director

 

2. Honda Cars India Limited

409, Twower B, DLF Commercial Complex

Jasola, New Delhi – 1010 025

Through its Managing Director                                                  …Opponents

 

Date of Institution: 22.01.2015

Judgement Reserved on : 22.11.2017

Judgement Passed on: 23.11.2017

 

CORUM:

Sh. Sukhdev Singh (President)

Dr. P.N. Tiwari (Member)

Ms. Harpreet Kaur Charya (Member)

 

Order By: Sh. Sukhdev Singh (President)

 

 

JUDGEMENT

          This complaint has been filed by Shri Amit Dayal against     M/s. Naksha Enterprises Pvt. Ltd. (OP-1) and Honda Cars India Limited (OP-2) under Section 12 of the Consumer Protection Act, 1986. 

2.       The facts in brief are that complainant Mr. Amit Dayal on the representations of Mr. Pranay Kumar Sinha, Team Leader and       Mr. Manoj Sharma, Manager – Corporate Sales of Naksha Enterprises Pvt. Ltd. (OP-1) took a car on 23.01.2013 on paying the booking amount of Rs. 25,000/- vide cheque no. 000029 dated 23.01.2013 drawn at Kotak Mahindra Bank Limited, 290, AGCR Enclave, Karkardooma. 

          On 24.01.2013, a new item was published in the newspaper ‘The Indian Express’ – Express Newsline to the fact that

“……Delhi government’s Transport department on Wednesday issued a public notice asking owners of all such vehicles, which were sold after April 30, 2012, to be fitted with HSRP.  Else, such vehicles would be treated as “without valid registration”.

          The notice states: “Such owners are hereby advised to immediately ensure compliance in this regard to avoid prosecution and impounding of their vehicles under relevant provisions of law.”

          The Transport department had earlier issued a notification directing dealers to ensure that motor vehicles are delivered to the owners only after affixation of HSRP.  But the car dealers are not following these orders, officials said.”

         

          The complainant who did not wish to take the risk of his prosecution or of his vehicle being impounded for want of High Security Registration Plate (HSRP), wrote an email to OP-1 on 24.01.2013 at 9.30 a.m. whereby the complainant called upon OP-1 to (i) comply with the notification prohibiting car dealers from delivering cars unless they were fitted with High Security Number Plates.  They were further called upon to ensure compliance with the Motor Vehicles Act and Rules and the notifications issued by Delhi Government as the booked car was to be registered in Delhi; (ii) to strictly observe the delivery date of 10^th February, 2013 with confirmation of availability of the car at least 3 days before the 10^th February, 2013 and (iii) furnish proof of payment of the road tax, registration amount, High Security Number Plate charges to the Government/Manufacturer of number plates. 

          It was specifically mentioned that if OP-1 was willing to comply with the conditions stipulated in the email dated 24.01.2013, only then the cheque for the booking amount which was collected from the complainant’s resident on 23.01.2013 might be presented for collection.  If OP-1 was not willing to comply with the said conditions, the return of the cheque was demanded.

          It has further been stated that OP were deemed to have accepted the conditions by getting the amount of cheque transferred to OP-1’s bank account on the same day i.e. 24.01.2013.  OP-1 also sent an email dated 24.01.2013 at 9.47 a.m. to the complainant whereby it stated that it would deliver the vehicle with a Noida Temporary Number Plate, without permanent registration and without HSRP.  This was in violation of law besides being in violation of the notifications issued by the Transport Department of Delhi and the various judgements of the Hon’ble Supreme Court of India and the conditions on which the complainant had permitted encashment of the cheque. 

          OP-1 vide their email of dated 04.02.2013, sought the complainant’s confirmation for temporary registration of the vehicle.  Complainant through email of dated 05.02.2013 stated that “In view of my email dated 24.01.2013, your request for registration without affixation of High Security Registration Plate, being illegal, cannot be accepted.  You are once again called upon to forthwith comply with the requirements specified in my email of 24.01.2013, which you had accepted by encashing the cheque”.  Vide email dated 05.02.2013, OP-1 refused to deliver the vehicle on the promised date with HSRP.  It has been stated that OP-1 had fraudulently realized the cheque and thus committed an offence punishable under Section 420 of IPC.  This act was of gross deficiency in service besides being an unfair trade practice.  The complainant again through his email of dated 06.02.2013 called upon OP-1 to strictly comply with the law and demanded delivery of the vehicle on the promised date with HSRP for permanent number.

          It has further been stated that the complainant from 23.01.2013 to 10.02.2013 maintained sufficient balance in his saving bank account to make the payment of the balance amount and thereby loss the benefit of higher interest rate applicable to FDs.  The complainant vide email of dated 11.02.2013 called upon OP-1 to refund the booking amount since the complainant did not receive the refund, he finally sent an email of dated 16.01.2015 as a final notice. 

          Thus, it has been stated that OPs have been grossly deficient in as much as, first, the cheque for booking amount was realized without having any intention to honour the conditions upon which the complainant had permitted realization.  Secondly, OP-1’s insistence upon delivery of the vehicle without HSRP was clearly an act of deficiency in service being in violation of law and judgements of the Hon’ble Supreme Court.

          The complainant have stated that OPs were jointly and severally liable to refund a sum of Rs. 25,000/- to the complainant with interest @ 18% p.a. which comes to Rs. 8,975/-.  The complainant is said to have also suffered hardship, inconvenience, mental agony and harassment for which he has claimed an amount of Rs. 15,00,000/- alongwith cost.

3.       In the WS filed on behalf of OP-1, they have taken various objections such as territorial jurisdiction as neither they nor OP-2 have their offices within the jurisdiction of this Forum; no cause of action; complainant seeking to create unlawful financial gains; have not approached the Hon’ble Forum with clean hands; the complainant imposed arbitrary conditions subsequent to handing over the cheque for booking the car.  They could not act upon email of dated 24.01.2013.  The complainant booked Honda City car on 23.01.2013 by paying an amount of Rs. 25,000/- vide cheque no. 000029 dated 23.01.2013 which was presented to Kotak Mahindra Bank for encashment on 24.01.2013 and was subsequently honoured.  They have denied that they have refused to get a HSRP fitted to the car. 

          It was made clear to the complainant that HSRP had not been introduced in Noida where from OP operates its showroom and therefore it was not a legal requirement which could be imposed on them.  The same was an afterthought with a mala fide intention of the complainant.  It was explained to the complainant that the car at the time of delivery shall be provided with a temporary registration at Noida and further offered to undertake the process of procuring HSRP for a registration in Delhi subsequently. 

          The complainant was duly intimated that the process of procuring HSRP at that point could only be undertaken after a vehicle had been billed and insured and that a further time period of 10-15 days were required to complete the formalities and procure HSRP for a vehicle.  The complainant was notified of these details and particulars; however, the complainant voluntarily chose to neither make the remainder payment for the car nor took delivery of the car from OP which resulted in cancellation of the booking. 

          It has further been stated that the public notice of dated 22.01.2013 by the Transport Department, Govt. of NCT of Delhi was applicable only to vehicles sold after 30.12.2012 in the NCT of Delhi.  They conduct business outside the purview of Transport Department, Govt. of NCT of Delhi. 

          It has further been stated that till date, the practice of acquiring temporary registration in Noida at the time of sale of a vehicle and thereafter applying for HSRP in Delhi continues to be in practice.  They, through their email of dated 24.01.2013 and 05.02.2015 sought complainant’s confirmation for temporary registration of the car in accordance with the applicable legal procedures.  However, complainant failed to provide that confirmation causing his booking to be cancelled.  The car was in fact ready for delivery before 10.02.2013. 

          It has further been stated that without undue delay on 22.02.2013, they issued cheque no. 006310 dated 22.02.2013, drawn on Kotak Mahindra Bank for refund of the booking amount, however, the complainant refused to accept that cheque and demanded a sum of Rs. 10,00,000/-.  They sent a DD no. 020269 dated 21.01.2015 for Rs. 25,000/-, issued by Axis Bank on 23.01.2015 to the complainant towards refund.  Thus, it has been stated that complaint was liable to be dismissed.  Other facts have also been denied.

          In the reply filed on behalf of Honda Cars India Limited (OP-2), they have also taken various objections such as the complaint being false and frivolous; no allegations against them, complaint does not fall within the ambit of Section 2(1)(c); no deficiency in service; territorial jurisdiction; misjoinder of parties etc.etc.

          They have further stated that they are only manufacturer.  They do not provide ancillary services such as High Security Number Plate, insurance, taxes, RTO charges etc.etc.  There was no contract between the complainant and OP-2.  The relationship of OP-2 and OP-1 were purely on principal to principal basis.   The complainant have not suffered any damage due to any acts of OP-2.  Other facts have also been denied.

4.       The complainant has filed rejoinder to the WS of OP-1, wherein he has controverted the pleas taken in the WS and reasserted his pleas.  No rejoinder has been filed to the WS of OP-2.

5.       In support of its complaint, the complainant have examined himself.  He has deposed on affidavit.  He has narrated the facts which have been stated in the complaint.  He has also got exhibited documents such as copy of email dated 23.01.2013 at 16.06 hours and 16.22 hours (Ex.CW1/1 and 1/2), original receipt of the booking and copy of cheque (Ex.CW1/3 and 1/4), news publication (Ex.CW1/5), copy of email dated 24.01.2013 at 09.13 a.m. and   09.47 a.m. (Ex.CW1/6 and 1/7), publication (Ex.CW1/8), copy of email dated 04.02.2013 and 05.02.2013 (Ex.CW1/9 to 1/11), copy of emails dated 06.02.2013 and 10.02.2013 (Ex.CW1/12 and 1/13), printout of email dated 10.02.2013 at 13.18 hours (Ex.CW1/14), copy of statement of account (Ex.CW1/15), email dated 11.02.2013 (Ex.CW1/16), copy of email dated 18.02.2013 (Ex.CW1/17), copy of email dated 16.01.2015 (Ex.CW1/18), covering letter dated 22.01.2015 (Ex.CW1/19), copy of banker’s cheque (Ex.CW1/20) and copy of email dated 28.01.2015 (Ex.CW1/21). 

          He has also filed additional affidavit which was filed in view of the reply of dated 15.09.2015 by OP-1.  In his additional affidavit, he has denied that cheque dated 23.01.2013 was presented to the bank by OP-1 before receipt of his mail dated 24.01.2013(Ex.CW1/6).  He has denied that on 22.02.2013, OP-1 had issued cheque no. 0063101 dated 22.02.2013 for refund of the booking amount.  The cheque was never tendered to him nor he was informed about any such cheque being ready at any time prior to filing of his complaint.  He has denied that he refused to accept the cheque and demanded a sum of        Rs. 10,00,000/- as interest or otherwise.  He has denied that OP-1 conducted his business outside the purview of the Transport Department, Govt. of NCT of Delhi.

          OP-1 have examined Shri Lalan Singh, authorized signatory, who have deposed on affidavit.  He have narrated the facts which have been stated in their WS. 

          OP-2 have examined Shri Amit Singh, Manager (Legal) who have also deposed on affidavit.  He has also narrated the facts which have been stated in the WS.  Alongwith affidavit, they have also filed Dealership Agreement, executed between Naksha Enterprises Pvt. Ltd. (OP-1) and Honda Cars India Ltd. (OP-2).

6.       We have heard the complainant and Ld. Counsel for OP-1 and OP-2 and have perused the material placed on record.  It has been argued on behalf of OP-1 that they have returned the booking amount and complainant have not suffered any loss or damages; the complainant sought to put the arbitrary conditions for taking delivery of the vehicle; the complainant have not taken the delivery which was got cancelled due to his non-paying the balance amount; they have not provided any service to the complainant and the complaint was without any basis as well as cause of action. 

          Ld. Counsel for Honda Cars India Ltd. (OP-2) have argued that their relationship with OP-1 were of principal to principal basis.  Complainant have no privity of contract with them. 

          On the other hand, complainant who himself is an advocate have argued that OP-1 and OP-2 were jointly and severally liable.  He has further argued that this forum was having jurisdiction.  He has also stated that he has got the booking amount of Rs. 25,000/- without prejudice to his rights. 

          To appreciate the arguments of the complainant and              Ld. Counsel for the parties, a look has to be made to the testimony of the complainant as well as the evidence of both the OPs and the documents placed on record.   Before looking to the evidence on record, the first and foremost point in respect of jurisdiction is taken up.  For this, a look has to be made to the memo of parties.  The memo of parties show that complainant have impleaded M/s. Naksha Enterprises Pvt. Ltd. (OP-1) and Honda Cars India Limited (OP-2).  M/s. Naksha Enterprises Pvt. Ltd. (OP-1) was based at Noida and Honda Cars India Limited (OP-2) was based at Jasola, New Delhi.  On the face of it, both the parties were not within the jurisdiction of this Forum.  However, from perusal of the documents on record, particularly to the cheque issued by the complainant for a sum of    Rs. 25,000/- towards booking amount is of Kotak Mahindra Bank, AGCR Enclave, Karkardooma, New Delhi.  The fact that the payment has been made from Delhi, the cause of action has arisen in Delhi, Therefore, the arguments of Ld. Counsel for OPs that this Forum was not having jurisdiction to entertain the complaint do not survive.  Thus, this argument of Ld. Counsel for OPs goes.   

          It is admitted case of both the parties that the complainant have received the booking amount.  He has only pressed his complaint for compensation.  For this, Ld. Counsel for OPs have argued that there has been nothing in the complaint to show that the complaint have suffered any mental pain and suffering for which he has to be compensated. 

          If a look is made to the complaint, it has been noticed that after getting the booking made, the complainant have exchanged emails with M/s. Naksha Enterprises Pvt. Ltd. (OP-1) for getting the vehicle with HSRP number plate as per the notification of Delhi Government and the directions in the judgement of the Hon’ble Supreme court.  Whole of the complaint revolves around compliance of the orders of the Hon’ble Supreme court in respect of HSRP number plates.  The complainant have got his booking cancelled as is evident from email (Ex.CW1/16), which is of dated 11.02.2013.  It would not be out of place to mention the contents of the email “in view of your company’s failure to honour its commitments and unwillingness to fulfill the pre conditions on the basis of which the booking had been made, you are hereby called upon to refund by booking amount forthwith.  This is without prejudice to my other legal rights”.  From this, it emerges that the complainant intended to get the vehicle on his own pre conditions. 

          The evidence on record shows that the company was willing to deliver the vehicle with temporary registration number which was later on to be converted into permanent registration.  This has been reflected in the email of dated 24.01.2013 which is exhibited as CW1/7 and in subsequent emails ex. CW-1/9 and Ex.CW-1/11.  Ex.CW-1/7 explains the procedure stating “that temporary number was issued by Noida Authority which was valid for one month and subsequently, the file will be moved for permanent registration which will take 12-15 days for permanent number and registration certificate to come alongwith HSRP receipt. On producing the HSRP receipt, HSRP counter at Mayur Vihar Phase III will get HSRP plates fitted after showing the HSRP receipt”.  This correspondence by way of email shows that the company have explained the procedure of HSRP plates and they were willing to deliver the vehicle to the complainant.  It is the complainant who have put his conditions before taking the delivery of the vehicle. 

          When the complainant have not taken the delivery and put his conditions for taking the delivery after booking the vehicle though the company was willing to deliver the same, no cause of action have arisen in favour of the complainant to file the present complaint.  Not only that, perusal of the complaint shows that there have been no allegations in respect of having suffered any loss or damages by the complainant.  When the complainant have not suffered any mental pain and suffering, the question of paying any compensation to the complainant does not arise.  Therefore, the complaint is devoid of any merits and the same deserves its dismissal and is dismissed.  There is no order as to cost.           

         Copy of the order be supplied to the parties as per rules.

          File be consigned to Record Room.

 

(DR. P.N. TIWARI)                                              (HARPREET KAUR CHARYA)

Member                                                                                Member    

     

      (SUKHDEV SINGH)

             President