Order-11.
Date-03/08/2016.
This is an application u/s.12 of the C.P. Act, 1986.
The case of the complainant, in short, is that he booked one luxury car being Audi Q – 5 with OP4 for a total sum of Rs.52,00,000/-. The complainant approached OP3 for the bank finance and the application for finance was transferred to OP1. OP1 agreed to give bank finance to the tune of Rs.40 lakhs for the said car in the loan account of the complainant being no.AUROOO501341392. It was agreed that the balance of Rs.12 lakhs shall be paid by the complainant by way of down payment. OP1 paid the entire loan amount to OP4 being the dealer – distributor. It was settled that the complainant would pay the loan amount within a period of 60 months at the rate of10.5 percent interest and the monthly EMI was settled at Rs.85,976/- per month. The complainant started paying EMIs of Rs.85,976/- and has already paid 5 EMIs amounting to total sum of Rs.4,29,880/-. The complainant, however, could not pay the down-payment of Rs.12 lakhs as agreed by the complainant within stipulated time period. Ultimately, the said loan amount was cancelled by OP1 and the entire disburse loan amount of Rs.40 lakhs was taken back by the OP1 from OP4 in the month of September, 2015. In the month of November, 2015 the complainant received a legal notice from OP1 claiming a sum of Rs.1,71,880/- towards the EMI overdue. The complainant alleges that the OP1 in collision with OPs2 and 3 has been practicing unfair trade practice. It is also alleged that the said car was not taken delivery by the complainant and 5 EMIs had been paid in the mean time. The complainant on 14-12-2015 wrote to OPs1 and 2 for refund of the paid EMIs amounting to Rs.4,29,880/- but to no good. OP1 vide letter dated 19-12-2015 asked the complainant for additional payment of Rs.61,963/- for closing the said loan amount. Hence, this case.
OP4 appeared in this case and filed written version but did not turn up subsequently.
OPs1 to 3 also appeared and filed a petition for filing written version but did not come to contest the case subsequently.
This Forum accordingly, has been compelled to dispose the case on the basis of the available materials on record.
Point for Decision
- Whether the OPs are deficient in service?
- Whether OPs1 to 3 have opted unfair trade practice?
- Whether the complainant is entitled to get the relief as prayed for?
Decision with Reasons
We have browsed over the documents viz. Sanctioned letter of Loan, legal notice for EMI overdue, letter of the complainant for pay back of EMI amount, foreclosure letter of Axis Bank, legal notice on behalf of the complainant and other materials on record.
In the written version filed by OP4 it is alleged that a body corporate cannot be brought with the definition of consumer under the C.P. Act, 1986, since, none of its activities can be envisaged as being done for self-employment or non-profit making. We are not consensus of opinion with such version. It is held by Hon’ble Apex Court that a company incorporated under Companies Act is a person within the meaning of Section 2(1)(d) read with Section 2(1)(m) of the C.P. Act [(2009) 3 Supreme Court Cases 240 referred to]. Moreover, we find that complainant M/s. Debonair Fashions Pvt. Ltd. is represented by one of its Directors, Mr. Akshay Kumar Singh, we think that the case is filed by Mr. Singh being a beneficiary. In our opinion, the case is well maintainable in fact and in law.
As stated by the complainant, he had booked the said luxury car Audi Q – 5 for personal use of one of its directors. It also appears from the materials on record that the complainant had paid 5 EMIs but due to fund scarcity the complainant was unable to deposit the down payment of Rs.12 lakhs as agreed under the said loan agreement and as a result, the loan was cancelled by OP1 and the disburse loan was also taken back. It also appears that the said car was not also delivered but the paid EMIs had been confiscated by OPs1 to 3. We do not think that the guidelines of RBI and the Relevant Banking Rules and Regulations encourage the same. We think that such a gesture on the part of the OP1 to 3 is illegal for making illegal gains and, of course, amounts to unfair trade practice.
None came from the side either of the OPs to controvert or contradict the case of the complainant or the Evidences-on-Affidavit adduced on behalf of the complainant. The version of the complainant and the documents on record remain uncontroverted and unchallenged. In absence of any contrary and controverting materials on record we think that the case of the complainant stands and the complainant is entitled to get the relief as prayed for.
In result, the case succeeds.
Hence,
Ordered
That the instant case be and the same is allowed ex parte but on merit against the OPs.
OPs 1 to 3 are jointly and severally directed to refund the entire sum of Rs.4,29,880/- along with interest at the rate of9 percent p.a. to the complainant apart from litigation cost of Rs.10,000/- from the date of payment of last EMI till compliance within 30 days henceforth.
OPs are further directed to pay an amount of Rs.25,000/- for practicing unfair trade to be deposited to this Forum within the stipulated period.
Failure to comply with the order will entitle the complainant to put the decree into execution u/s.25 read with Section 27 of the C.P. Act.
