CONSUMER DISPUTES REDRESSAL FORUM – X

GOVERNMENT OF N.C.T. OF DELHI

Udyog Sadan, C – 22 & 23, Institutional Area

(Behind Qutub Hotel)

New Delhi – 110 016

Case No.536/2009

SH. RAJIV AMLANI

S/O SH. NANDLAL AMLANI,

R/O F-78, KALKAJI,

NEW DELHI-110019

…………. COMPLAINANT                                                                                     

                                                VS.

M/S SOUTHERN HONDA,

SAKET MOTORS (P) LTD.,

B-II/71, MCIE, MATHURA ROAD,

BADARPUR,

NEW DELHI-110044

      …………..RESPONDENT

                                                                                             Date of Order: 19.10.2015

O R D E R

A.S. Yadav – President

            In brief the case of the complainant is that he had booked a Honda City Car at the showroom of OP on 01.5.2009 vide Sales Contact bearing No.SEH/SC/05-06/3830 dated 01.5.2009.  The cost of the Honda City Car as quoted by OP was Rs.8,92,454/- and expected delivery schedule was within four to seven days from the date of the Sales Contract.  Complainant paid Rs.8,92,454/- in US Dollars through cheque dated 01.5.2009 for a sum of USD 17850.00.  Complainant was in regular contact with OP for delivery of the said car but OP failed to deliver the booked car till the end of May 2009.  The amount of cheque was debited from the account of the complainant on 06.5.2009. 

It is further stated that in the month of June 2009 OP contacted the complainant and asked him to further deposit an amount of Rs.67,048/- on the pretext that the dollar exchange rate had come down and the complainant was liable to pay the difference. 

Complainant wrote to OP on 11.6.09 stating that the amount has already been debited from his account on 06.5.2009 and requested OP to deliver the car.  Complainant received two more letters dated 11.6.09 and 17.6.09 from OP wherein OP again raised demand of Rs.67,048/-.   Complaint sent a legal notice to OP demanding delivery of the said car.  The sales contract nowhere stated that the complainant was liable to pay the difference amount.  It was understood that the cheque clearance would take about 5-6 days time and hence the delivery of the car was fixed to be made in about 4-7 days time from the date of booking.  In spite of service of legal notice the car was not delivered.

It is prayed that OP be directed to deliver the car to complainant booked vide sales contract dated 01.5.2009 and also to pay interest @ 24% upon the amount paid by complainant on 01.5.2009 towards booking of car and also to pay Rs.1 lakh as compensation and Rs.50,000/- for cost of litigation..

OP in the written submissions has not disputed about the Sale Contract.  It is also not disputed that the delivery was promised within 4-5 days however it is stated that the same was subject to realization of complete sale value of the car.  The sale contract clearly mentions the total sales value of the car and the amount of the cheque in US Dollars issued by complainant.  The same can by no stretch of imagination be considered to be the complete sale value of the car.  OP could realize only a sum of Rs.8,25,406/- against the total value of car of Rs.8,92,454/-.  Therefore, the shortfall/balance sale consideration of Rs.67,048/- was rightfully demanded by OP.  It is further stated that the sales contract mentioned the total sales value of car as also the amount of the cheque issued by complaint in foreign currency.  The sale contract is absolutely clear as it mentions the total sale value and the cheque amount.  It is an admitted position that the net realized amount had to be considered against the total sale value and the balance sale consideration was required to be paid b complaint.  Sales contract entered into between the complainant and OP is not an invoice. 

It is further stated that OP has received the sale consideration in Indian rupees and is not drawing any benefit against the said cheque issued in foreign currency therefore OP rightfully demanded the balance sale consideration and in this regard reference was made to clause 9 of the sale contract which clearly states “Customer to make full payment within five days on the maturity of booking else we will be free to allocate the car to the next person”. 

It is further stated that it is therefore clear form the bare perusal of the sales contract itself that the full payment has to be made before the delivery of the car.  It is submitted that in view of this fact, the present complaint has become infructuous and is liable to be dismissed. 

It is further stated that complaint paid a cheque in the sum of USD 17850/-vide cheque dated 01.5.2009 towards part payment of the total sales value of car.  Complainant agreed to purchase the car for a total sale consideration of Rs.8,92,454/- which was total sale value of car.  Complaint was categorically told that the payment shall be credited in the account of OP as realized by complaint’s banker shall be considered towards part payment the total sale value.  Complainant agreed and assured OP that he shall make the balance payment after the said encashment of the cheque.  The said cheque dated 01.5.2009 was deposited by OP on 02.5.2009 and the cheque was credited in the account of OP only on 01.6.2009 for a sum of Rs.8,27,526/- and bank charges levied on the said amount being transfer in foreign currency was Rs.2,120/-.  Thus OP got a net credit of Rs.8,25,406/- only.  Complainant admittedly did not contact the OP for the entire month of May 2009 as complainant was aware that OP had not received the payment and their account was not credited with the mentioned amount.  It was OP who contacted the complainant and informed him about the encashment and credit.  OP wrote three letters dated 11.6.2009, 17.6.2009 and 27.6.2009 requesting complainant to make the balance payment of Rs.67,048/- and take delivery of the car.  It is further stated that finally complainant took delivery of car after making balance payment on 02.9.2009. 

We have heard Ld. Counsel for the parties and carefully perused the record.

It is not disputed that total sale consideration of the car was Rs.8,92,454/-.  This is not disputed that at the time of sale contract, complainant has paid a cheque drawn on Bank of America for USD 17850.  It is not disputed that the aforesaid cheque was deposited by OP on 02.5.09.  The contention of counsel for complainant is that the amount was debited from his account on 06.5.2009 hence OP was bound to deliver the car immediately thereafter but OP did not deliver the car rather vide letter dated 11.6.09, OP asked for the balance amount of Rs.67,048/-.  It is contended by Ld. counsel for complainant that complainant is not bound to pay any amount as the entire sale consideration was paid by way of cheque at the time of sale contract.  It is further contended by Ld. counsel for complainant that it was understood that cheque clearance would take place about 5-6 days time hence the delivery of car shall be made in 4-7 days.  It is further contended that terms of sales contract clearly enumerated that in case the price of the car changed at the time of delivery then the price prevailing at the time of delivery would be paid by complainant.  It is submitted that in this case, price of car has not changed hence there was no question of complainant being asked to pay aforesaid amount. 

On the other hand it is submitted by Ld. counsel for OP that it does not matter that the amount was debited from the account of complainant and what matters is when the amount was credited in the account of OP.  It is submitted that the amount was credited in the account of OP only on 01.6.2009 for a sum of Rs.8,27,526/- whereas the total value of the car was Rs.8,92,454/-.  It is submitted that in the meantime the dollar exchange rate had come down.  The fact of the matter is that OP was not to gain anything by delaying the matter.  There is nothing on the record to suggest that there was any lapse on the part of OP.  OP received the cheque on 01.5.2009 and deposited the same on 02.5.2009.  It does not matter that the amount was debited from the account of complainant on 06.5.2009.  The fact remains that only a sum of Rs.8,25,496/- was credited in the account of OP on 01.6.2009 which was not the sale value of the car.  The complainant was under obligation to pay the complete value of the car.  Only thereafter the OP was under obligation to deliver the car.  As already stated there was is nothing to suggest that there was any lapse on the part of OP. It does not matter that at the time of sale contract, a cheque for the value of the car was given to OP.  OP was concerned with the price of the car and the price of the car was not realized by the complainant on 01.6.2009.  Ultimately when the complainant made the entire payment, the car was delivered by OP to complainant on 02.9.2009.  There would have been deficiency in service had the car not been delivered after realization of full amount.  The complainant has failed to prove deficiency in service on the part of OP.  Once OP got the price of the car the same was delivered to the complaint hence the complaint is dismissed.

            Copy of order be sent to the parties, free of cost, and thereafter file be consigned to record room.

         (D.R. TAMTA)                                                             (A.S. YADAV)

             MEMBER                                                       PRESIDENT