Orissa

Rayagada

CC/5/2018

Dilshad Ahmed - Complainant(s)

Versus

Sales Manager Paramlunt Auto Motiver Pvt., - Opp.Party(s)

Self

07 Sep 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, RAYAGADA.

STATE: ODISHA.

 C.C.Case No. 05 /  2018                                                       Date:     7           9. 2018

 

Present:

 

DR ASWINI KUMAR MOHAPATRA ,       PRESIDENT.

MR.GADADHAR SAHU ,                            MEMBER.

MRS.PADMALAYA MISHRA,                     MEMBER.

 

Sri Dilshad Ahmad,Aged 30 years, S/o Sri Irshad Ahmad,

At- Tikarpada, PO/PS-Muniguda, Dist; Rayagada

                                                                                                .…..…..Complainant

Vrs.

The Sales Manager,

Paramount Auto Motives Pvt. Ltd.,

Komatlapeta, Dist- Rayagada.                      ………………………… OPP.PARTY

 

 

Counsel for the Parties

For the Complainant-  Self

For the O.P.s.            - Sri S.K.Satapathy,,Rayagada.

 

J u d g e m e n t

            The case in brief as per the Complaint is that,the Complainant had approached the O.P., who is authorized  dealer for Ashok Leyland vehicles to purchase two numbers of Ashok Leyland 3718 Haulage Truck each priced Rs.27,00,000/- on dt.25.12.2017. It was decided that, if the Complainant pays the entire price before 28.12.2017, the vehicles are ready for delivery on the same date.Accordingly the payment for two trucks was made by the Cholamandalam Investment and Finance Co. Ltd, Rayagada , on behalf of the Complainant through RTGS .. As the date 28.12.2017 was auspicious day for the Complainant he approached the O.P for delivery of the vehicle with  advise letter for  release of two trucks made by the Finance company but.the O.P. told that the vehicles would be delivered within one month. As thus the complainant, aggrieved  has approached this forum with prayer to pass an interim order for release of the vehicle immediately and to direct the O.P. to  pay the monthly instalment of Rs.82,100/- which he had to pay to the finance  for each of the vehicle  with compensation of Rs.1,00,000/- and cost of Rs.5000/-.

            The Complainant has filed not a single scrape of paper in support of his contention nor has filed any separate application for any interim order. However, notice to O.P. u/s 13(1)(a) of the C.P.Act-1986 was issued to the O.P. vide Lr. No. 32 dtd. 11.01.2018  requiring him to file his reply in the case on or before 28.02.2018.

            The O.P. entered his appearance on dt.28.02.2018 and filed its preliminary objection and counter on dt.21.03.2018, to contend that, the Complaint is not maintainable as hit by sec. Section 2(1)(d)(i) as  the transaction of  the present complaint is of Commercial nature. He further contended that, the forum should not have admitted the complaint as the Complaint was incomplete being not signed by the Complainant and no affidavit or a single scrape of paper in support of the contentions in the Complaint has been filed. No prima facie evidence of deficiency in service is established in the complaint. No documents in evidence is produced in support of the contentions in the complaint. No identity of the Complainant is made in the complaint.The O.P. contends that, the payment was never made on 28^.12.2018, the release letter of the Finance Company only promises to pay an amount of Rs. 26,79,607/- only per vehicle against the price of Rs.27,00,000/-  Thus a difference amount of Rs.20,393/- per vehicle was to be paid by the Complainant, which was never paid. The Complainant, has got delivery of the first truck on 15.01.2018 and the next on 02.02.2018 and at the time of delivery, he had signed an undertaking to pay Rs.20,000/- per each truck being the deferred cost instead of Rs.20,393/- .The O.P. contends that only to avoid the payment of the differed amount  of Rs. 40,000/- the Complainant has filed this vexatious complaint. .As thus the Complainant was at fault and O.P. submits that, very admission of the complaint is perjured hence, liable to be dismissed with exemplary cost along with an order to the Complainant to pay the differed amount of Rs.40,000/-.

            The O.P. along with his counter cum objection has filed the copies of the proforma invoice dtd.26.12.2018, the advice letter of Cholamandalam Finance Co. Ltd.,Rayagada, two undertakings executed by the Complainant in favour of the O.P. and other documents.

Heard arguments from the learned counsel for the O.P,   Perused the record, documents, written version  filed by the parties. 

This forum  examined the entire material on record  and given  a thoughtful consideration  to the  arguments  advanced  before us by  the  parties touching the points both on the facts  as well as on  law.

                                                    FINDINGS.

            Before delving into the details of further adjudication, we first set out to dissolve the question of maintainability of the Complaint vis-a vis contentions of the parties and documents at hand submitted by the parties.

 

            Satisfied of the sufficient cause, the power of the forum to admit a complaint, though is  a consideration of preemptory in nature, and forum  must satisfy themselves, that there was sufficient cause for admission of the complaint on the basis of the submission of the Complainant  and issuance of notice under 13(1)(a) of the C.P.Act asking the counterparties to file their objections and counters within the time frame, to advent towards further is not barred any where in the Act.

            The primary objections of the O.P. against the complaint is that, the transaction was of commercial in nature and as such the Complaint should not have been admitted and should have been dismissed at the outset.Purchase of two road giants of Haulage trailers at a cost of fifty four lakh to be used for transport business with employment of drivers and helpers  was not for self employment or earning livelihood but for purely commercial purpose. And any deficiency in sale or service involving commercial purpose can not attract the provisions of C.P.Act-1986 being hit by section 2(1)(d) (i) and 2(1)(d) (ii)respectively.  The O.P. in support of his contentions has relied  on the decisions of The Honble  National Commission in (1) Synco Textiles Private Limited v. Greaves Colton and Co.Ltd. (1991 (1) CPJ 499),(2)  JCB India Ltd. Vs. Mallappa Sangappa Mantri & Anr., IV (2012) CPJ 220 (NC), (3) Biilagi Sugar Mill Ltd. v. Kessels Engineering Works (P) Ltd., II (2010) CPJ 242 (NC)    (4)      Duggirala Prasad Babu vs. Skoda Auto India Pvt. Ltd. & Ors. II (2014) CPJ 82 (NC),            (5)      Jasobanta Narayan Ram vs. L & T Finance Limited, II (2014) CPJ 87 (NC).(6)  Laxmi Engineering Works v. PSG Industrial Institute, as reported in II (1995) CPJ 1 (SC) = 1995 AIR SC 1428.

           

            We have perused copy of the proforma invoice issued to the Complainant quoting the price of the Haulage trailer to be Rs.27,00,000/-(twenty seven lakh) each,  and nowhere we could find that, the vehicle would be delivered on 28.12.2017 as held by the Complainant. We have also perused the vehicle release advice letter of  M/s Cholamandalam Finance Company Ltd, Rayagada branch, bearing No. 91367893 and 91369231 both  dtd.28.12.2017, which in 2^nd para reads as follows  “In this regard an amount of Rs. 26,79,607.00 would be paid to you within 3-4 days. Kindly arrange to have the invoice raised  ……..”.

 

            Hence, the contention of the Complainant that, he has paid the price of the Truck on 28.12.2017 was devoid of any truthful ness and it is equally true that, he has not even paid the differed cost of the vehicle amounting to Rs. 20,393/- and thus the obligation on the part of the OP that, on payment of full cost of the vehicle, it would be delivered on 28^th Dec,2017, automatically dissolves on the principle of frustration of contract.

 

            Further in the Complaint,  we did not find if the Complainant had purchased the vehicle for self employment or earning of livelihood purpose and in absence of any such  contention, we are in hesitation to presume that, the vehicles are purchased for commercial purpose and the transaction was of commercial nature.

 

            During all these days of adjournments, till now,the Complainant did not appear before the forum to put forth his stand in support of his contentions, hence, without prejudice, part with further adjudications.

            In view of above as complainant is not a 'consumer' and complaint itself is not tenable,as thus, deserves to be dismissed. Hence, we proceed to pass following order-

                                                                        O R D E R

            1) Complaint is dismissed on contest.

            2) No order as to costs.

Certified copy of this order be supplied to both the parties as per rules.

 

Dictated and corrected by me.          

 

Pronounced on        7^th.               September, 2018.

 

 

 

MEMBER                                            MEMBER                                            PRESIDENT