BEFORE THE DISTRICT FORUM:KURNOOL
Present: Sri.T.Sundara Ramaiah , B.Com B.L., President
And
Sri. M.Krishna Reddy , M.Sc., M.Phil., Male Member
Friday the 07th day of May , 2010
C.C.No. 73/09
Between:
Mohsin Bin Hussain A1-Kasary,S/o Moullim Husain A1 Kasary,
R/o H.No.15-1-401, Old Feel Khana, Hyderabad- AP 500 012.
….Complainant
-Vs-
1. Syed Siraj S/o. Syed Jamsheed, Occ . Auto Consultant,
R/o H.No.18-12-418/1/B/10-11, Hafez Babanagar, Hyderabad - AP.
2. Syed Shabbir Ahmed, S/o Syed Ismail Peer, Occ .Business,
R/o H.No.44/54-D1,Rooza Street, Kurnool.
3. The Branch Incharge ICICI Bank Limited,
Kurnool Branch, 40-384/1, Navarang theatre complex, Ucon Plza, Park Road, Kurnool-A.P.518001.
(Proforma party – No relief is sought)
4. Station House Officer, P.S.Kanchanbagh,
H.No.18-1-67, OPP.Midhani Factory, Kanchan Bagh , Near- Andhra Bank, Hyderabad-500 002.
(Proforma party – No relief is sought) …Opposite PartieS
This complaint is coming on this day for orders in the presence of Sri. Mohd. Muneerduddin , Advocate, for complainant , and Sri M.A. Ahmed , Advocate for opposite party No. 1 and Sri. G.Naga Ramesh Goud, Advocate for opposite party No.2 and Sri. P.Madhusudhan Reddy , Advocate for opposite party No.3 and opposite party No.4 is called absent set-exparte and upon perusing the material papers on record, the Forum made the following.
ORDER
(As per Sri. T.Sundara Ramiah, President)
CC. 73/09
1. This complaint is filed under section 12 of the C. P. Act,1986 praying
a) To direct the OP-1 & 2 jointly and severally to refund Rs.2,40,000/- , the amount paid by the complainant towards purchase of Swaraj Sartaj Vehicles bearing registration No. AP 02V 4540 Model 2005 , No. AP04 5930 Model 2003 .
b) To direct the OP-1 & 2 to pay compensation Rs.2,10,000/- to the complainant for the loss of earning / rental charges which the complainant would have earned had the OP-1 & 2 would have delivered the suit vehicles on 07-09-2008.
c) Grant compensation for mental agony Rs.40,000/-.
d) Grant the cost of the suit Rs.10,000/-.
e) Grant any other relief or reliefs as the Hon’ble forum may deems to fit and proper in the circumstances of the case.
2. The case of the complainant is as follows:- The complainant is the consumer of Automobile sale service provided by OP.No.1 and 2. OP.No.1 and 2 offered to sell to the complainant , two Swaraj Sartaj Vehicles bearing registration No. AP 02V 4540 and AP04 5930 for a total of Rs.2,60,000/- . The complainant paid a sum of Rs.2,40,000/- to OPs 1 and 2 on 07-09-2007 and the OP.No.2 handed over the original agreement drafted by OP.No.2 . Ops 1 and 2 promised to deliver the vehicle at Hyderabad stating that some financial clearance to be made by paying cash to OP.No.3 . The balance of sale consideration of Rs.20,000/- shall be paid by the complainant at the time of delivery of suit vehicles. Ops 1 and 2 failed to delivery the vehicles to the complainant along with the original clearance papers. Non delivery of the vehicles by OPs 1 and 2 constitute deficiency of service on the part of Ops 1 and 2. Ops 1 and 2 are liable to refund the amount paid by the complainant . The complainant also filed a private complaint against Ops 1 and 2 before the Hon’ble VII Addl. Chief Metropolitan Magistrate , Nampally ,Hyderabad . A case was registered U/s. 420, 120-B R/w Sec 34 IPC . During the course of investigation OP.No.4 recovered the suit vehicles. Ops 3 and 4 are connected with suit vehicles and they are made as proforma parties . Ops 1 and 2 are liable to refund to the complainant sum of Rs.2,40,000/- as compensation . Hence the complaint.
3. OP.No.1 filed written version stating unless the case in Cr.No.48/07 is finally decided this case cannot be taken up or decided. The complaint is not maintainable . The complainant is doing real estate business . He used to purchase properties on litigation under agreement. Believing the representations of the complaint , OP.No.1 paid a sum of Rs.3,00,000/- to the complainant . Later when OP.No.1 pressed the amount ,the complainant assured that he would return the same soon. The complainant asked OP.No.1 to take him to OP.No.2 . OP.No.1 accompanied the complainant to OP.No.2 . OP.No.2 received money from the complainant and handed over two motor vehicles to the complainant . The complainant brought the said two vehicles to Kurnool and requested OP.No.1 to sell the vehicles and also told OP.No. 1 that one vehicle to be kept with him as a security for the hand loan. As the vehicle that was kept with OP.No.1 was in very bad condition ,he got it repaired by spending huge amount. Knowing that OP.No.1 got the vehicle repaired, the complainant gave a false complaint. OP.No.1 surrendered the said vehicle to police and the police did not take any action. There is no partnership in between Ops 1 and 2 . OP.No.1 is not the owner of the vehicle . OP.No.1 denied about the execution of the agreement infavour of the complainant . The complaint is liable to be dismissed.
4. OP.No.2 filed written version stating that the complaint is not maintainable. OP.No.2 denied various allegations made in the complaint. This OP.No.2 sold the suit vehicles under agreement dated 07-09-2007 and the complainant was put in possession of the some 07-09-2007 . The complaint is liable to be dismissed.
5. OP.No.3 field written version stating that the complaint is not maintainable . The complainant is not the consumer of the bank . The bank is no way connected with the transactions . The alleged transaction exists between the complainant and Ops 1 and 2 . OP.No.2 participated in the option conducted by OP.No.2 and purchased the Swaraj Sartaj Vehicles bearing No. AP 02 4540 and AP04 5930.The complaint is liable to be dismissed.
6. On behalf of the complainant Ex. A1 is marked and no documents are marked on opposite parties side.
7. On the basis of the above pleadings the points that arise for consideration are
(i) whether there is deficiency of service on the part of the
respondents/ opposite parties ?
(ii) Whether the complainant is entitled to the relief as prayed
for?
(iii) To what relief ?
8.Point No.1 & 2:- It is the case of the complainant that Ops 1 and 2 offered to sell two Swaraj Sartaj Vehicles for Rs.2,60,000/- ,that the complaint paid a sum of Rs.2,40,000/- to Ops 1 and 2 on 07-09-2007 and that OP.No.2 handover original agreement. It is the case of the OP.No.1 that he is nothing to do with the purchase of the two vehicles by the complainant . According to OP.No.3 , OP.No.2 purchased the two vehicles bearing registration No.AP02 V 4540 in an open auction held on 04-09-2007 . The complainant filed Ex.A1 agreement in support of his contention. OP.No.1 is not a party to the agreement. Admittedly he is not a owner of the vehicles. The question of OP.No.1 selling the vehicles to the complainant does not arouse. The complainant has not placed any documentary evidence to show that OP.No.1 along with OP.No.2 sold the above said vehicles to the complainant .
9. According to OP.No.2 he sold the two vehicles to the complainant under agreement dated 07-09-2007 and delivered possession of the said vehicles on the very same day i.e, 07-09-2007 . Ex.A1 is the agreement on which the complainant based his claim. In Ex.A1 it is clearly mentioned that on 07-09-2007 the OP.No.2 received Rs.2,40,000/- as advance and delivered possession of the two vehicles bearing No. AP 02V 4540 and AP 04 5930 . The contention of the complainant that Ops 1 and 2 promised to delivery the vehicle two days after Ex.A1 cannot be believed at all.
10. It is also the case of the complainant that he filed a private complaint on the file VII of Addl. Chief Metropolitan Magistrate , Nampally ,Hyderabad and that a case in Cr.No.48/07 was registered and during the course of investigation OP.No.4 recovered both the vehicles. The stage of the case in Cr.No.48/07 is not known. Admittedly presently the vehicles are not in the possession of the opposite parties 1 and 2. According to OP.No.2 he executed Ex.A1 agreement and he gave possession of the both vehicles to the complainant on the date of 07-09-2007. The complainant did not give demand notice to the OP.No.2 before filling the complaint. As the criminal case is pending against Ops 1 and 2 U/S 420 IPC. I think it is not just and proper to go deep into the merits of the present case. There is prima-facia material on record to show that the complainant was hand over two vehicles by OP.No.2 on 07-09-2007 . The complainant having taken possession of two vehicles filed the present complaint in order to have wrongful gain . There is no cause of action against Ops 1 , 3 and 4 . There is also no material on record to show that OP.No.2 has not performed his part of contract under Ex.A1. The complainant filed a criminal case against Ops 1 and 2 , without performing his part of the contract. There is no deficiency of service on the part of Ops 1 and 2 and the complaint is liable to be dismissed.
11. In the result , the complaint is dismissed without costs.
Dictated to the stenographer, transcribed by her , corrected and pronounced by us in the open bench on this the 07th day of May , 2010.
Sd/- Sd/-
MALE MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant : Nil For the opposite parties :Nil
List of exhibits marked for the complainant:-
Ex.A1 Agreement dated 07-09-2007.
List of exhibits marked for the opposite parties: Nil
Sd/- Sd/-
MALE MEMBER PRESIDENT
// Certified free copy communicated under Rule 4 (10) of the
A.P.S.C.D.R.C. Rules, 1987//
Copy to:-
Complainant and Opposite parties
Copy was made ready on :
Copy was dispatched on:
