Order-9.
Date-06/06/2017.
Shri Kamal De, President.
This is an application u/s.12 of the C.P. Act, 1986.
The Complainant took a quotation from Spring Hyundai Showroom (O.P.-1) for purchase of a Hyundai I-10 MetaliccolourCar which costs for Rs.6,45,165/- net ex show room price on 5th November, 2014. The Complainant also applied for car loan from SBI Bartala Street Branch, Kolkata and the said Branch sanctioned an Auto Loan under SBI Car Loan Scheme amounting Rs.4,95,486/- on application dated 23.12.2014 and sanction letter issued on 24.12.2014. the loan agreement was executed on 23.12.2014 and cheqaue was issued in favour of Spring Hyundai and rest amount was paid in cash by the Complainant to Spring Hyundai total amounting to Rs.6,45,165/-. The Complainant at that time was told by OP that Hyundai I -10 Model of MetalicColour is not available and for which the delivery will be after 15 days. One Md. Nasir of Spring Hyundai (O.P.-2) told the Complainant that due to some difficulties the delivery of the car was being late.
15 days passed, thereafter one month elapsed but the said showroom could not deliver the car to the Complainant but the Complainant started paying EMI of Rs.8,341/- to the Bank. The Complainant went to the showroom and demanded delivery of the said car but official of the said showroom assured the Complainant that the said car could not be delivered to the Complainant due to some technical difficulties and they would however, take all necessary steps for releasing the car. After three months, in the month of March 15, the said showroom of Spring Hyundai, where the Complainant deposited the cheque and cash totalling Rs.6,45,165/- as against purchase price of the car suddenly closed. OP-2 is the owner of the said showroom and OP-1 is the office. The Complainant thereafter lodged one FIR before the Jorasanko Police Station. It is alleged that the OPs have practiced unfair trade, they are also deficient in rendering service to the Complainant. It is stated that OPs have received the entire purchase money as against the said car but did not deliver the said car or hand over relevant papers in connection with the car. Hence this case.
The Complainant has prayed for direction upon the OPs for delivery of the car HyundaiI -10 MetalicColour or return the price of the car along with other reliefs in terms prayer in the petition of complaint.
OPs have appeared in this case and subsequently did not file any w.v. and the case has proceeded ex parte against the OPs.
Point for Decision
1) Whether the OPs are deficient in rendering services to the Complainant?
2) Whether the OPs have indulged in unfair trade practice?
3) Whether the Complainant is entitled to get the relief as prayed for?
Decision with Reasons
We have perused the documents on record i.e. photocopy of Quotation of Hyundai I 10 of an amount of Rs. 6,45,165/-, photocopy of booking of Hyundai I 10 Magma dated 09.12.2014 acknowledging receipt of cash of Rs.85,000/-, photocopy of sanction letter of SBI Bartala Street Branch dated 24.12.2014 amounting to Rs.4,95,486/- as against SBI Car loan scheme in the name of the Complainant, photocopy of order of Ld. C.M.M., Kolkata for investigation under section 156 (3) CrPC against OP-2.
We find that the Complainant booked a Hyundai I-10 Metallic Colour four wheeler with the OPs on 09.12.2014 on payment of Rs.85,000/- . The Complainant also obtained a car loan from SBI, Bartala Street Branch, Kolkata and the said SBI Branch sanctioned car loan under SBI Card loan scheme of Rs.4,95,486/- in favour of the complainant vide his application dated 23/11/2014. Sanction letter was issued on 24.12.2014 and said loan agreement was executed on 23.12.2014 and cheque was issued in favour of Spring Hyundai. So, we find that the Complainant paid the entire price of Spring Hyundai amounting to Rs.6,45,165/-. OP-2 assured the Complainant onreceivintg the entire price of the Hyundai I-10 car that car would be delivered to the Complainant after 15 days as there was some technical difficulties. But 15 days elapsed, one month also elapsed, 3 months rolled on and suddenly the showroom of Spring Hyundai where Complainant deposited the cheque of the loan ad for the purchase of the car totalling Rs.6,45,165/- wound up OP. OPs did not handover the said car along with connected papers to the Complainant. We find that Complainant also lodged a complaint before the Ld. C.M.M., Kolkata on 09/01/2014 and a case started treating the said complaint as FIR u/s-156(3) of the Cr.P.C. against OP-2.
The fact remains that OPs received an amount of Rs. 6,45,165/- from the Complainant as aginst delivery of a Hyundai I-10 Metallic Colour car to the Complkainant and thereafter has not delivered the car to the Complainant and utilized the amount for their own gain. It appears that the OPs have extorted the said amount from the Complainant in the name of selling Hyundai I -10 car and has failed and neglected to deliver the car to the Complainant.
None came from the side of the OPs to challenge or to contradict the version of the complaint. OPs appeared in this regard and subsequently did not file any w.v. within the stipulated period and the case has proceeded ex parte aginst the OP.
The evidence of affidavit filed by the Complainant remains unchallenged and uncontrovered. In absence of any contrary of controverting materials on record and having regard to the document on record, we are confidednt to hold that OPs have indulged in unfair trade practice and OPs are also deficient in rendering service to the Complainant. Complainant has also filed a screen shot ofPublic Vehicles Department, Beltala Road, Kolkata which shows that one vehicle bearing no. WB 02 A - 9718 was sold to M/sZamco Rubber Industries of 52,Tiljala Road, Kolkata -700 046 being chassis no. 377003956828, Engine No. 483BL41583333. The Complainant also alleged that the vehicle booked by the Complainant is sold to another person.
We find OPs have grabbed the entire amount of the Complainant and thereafter closed the showroom and we think that Complainant has suffered irrepairable loss and injury for no fault of himself. It appears that OPs have not deliberately handed over the said car and its registration no, chassis and engine no. along with other papers of the said car to the Complainmant. We think that the O.ps. have demonstrated a gesture of deficiency in service and have indulged in unfair trade with ulterior gain consciously and deliberately. Complainant as such is entitled to get the decree as prayed for.
In result, the case merits success.
Hence,
Ordered
The instant case be and the same is allowed ex parte but on merit against the OPs.
OPs 1 and 2 are jointly and severally directed to return the entire amount of Rs.6,45,165/- to the Complainant along with interest at the rate of 12 percent p.a. with effect from 09.09.2014 till compliance within one month from the date of this order, apart from litigation cost of Rs.10,000/- .
OPs are also jointly and severally directed to pay an amount of Rs.3 lacs – 50 percent of which to be paid to the Complainant and 50 percent of which to be deposited to this Forum for indulging in unfair practice.
Failure to comply with the order will entitle the complainant to put the order into execution under appropriate provision in the C. P. Act,1986.
