PER DR.(MRS) MADANJIT KAUR SAHOTA, MEMBER         Succinctly put, the complainant on 24.04.2009 booked one Nano car with OP-1.  The booking amount of Rs.1,20,000/-  was got financed by OP-2.  On 09.09.2009, he faced an acute financial hardship and had to cancel the booking.  The OP-1 agreed for the same and all the relevant papers for cancellation were sent through Hind Motors, Chandigarh, upon which a number WCUEQ-35160 was allotted to him.  Thereafter it was informed to OP-2 on the advise of OP-1. The OP-2 insisted on refund of the total amount of Rs.1,20,000/- for which he had to foreclose his fix deposit under that pressure and paid it to OP-2.  The bank clearance was sent to OP-1 for refund of the amount directly to his address but when he sought the refund of Rs.1,20,000/- from the OPs, it was told to him that the amount voucher was sent to OP-2 at their Bombay office on 22.10.2009. Thus, the OPs have utilized the amount till 17.10.2009. The said amount was received by him after waiting for about three months. The OPs had deliberately delayed the refund of the amount and had violated the terms of booking instruction and forced him to foreclose his fixed deposit.  Hence this complaint alleging that the aforesaid acts of the OPs amount to deficiency in service and unfair trade practice.               

2.             Notice was served to the OPs. None appeared on behalf of the OP-2.  Accordingly the OP-2 was proceeded ex-parte.

3.             In their written reply OP-1 submitted that the present complaint is bad for non-joinery of parties. The complainant booked and cancelled the car through Hind Motors; however Hind Motors were not impleaded as a party in the present case. This Forum has no jurisdiction to entertain the present complaint because the complainant had raised issued which involved question of facts and Law which can appropriately be done by civil Court. The complainant had not given any particulars of the car in question. They had moved an application dated 17.05.2010 before this Forum for disclosing the particulars of the said car by the complainant but till date the complainant had not filed any reply to the same. The complainant had placed on record only one pamphlet allegedly got printed by Hind Motors India Limited, whereas he had not placed on records any of the allotment order/assurance letters to prove that the assurance of the said car was given by them to be delivered by Oct-December, 2010. Even if it was presumed that the assurance of delivery of the car was given, the customers were under obligation to maintain the booking amount despite expiry of the finance period. The complainant has not produced any copy of the alleged booking cancelled by him.  They had not allotted any number to the complainant nor had they assured at any point to provide funds to the complainant. The booking amount was not payable to the complainant because the same was refundable to the financial institution in the finance case. The request against the direct refund of the amount was not acceptable being against the contract. The refund of the booking amount was routed to him through M/s Hind Motors India Limited and the same was received by the complainant within 25 days.  Denying all the material allegations of the complainant, the OP-1 pleaded that there has been no deficiency in service or unfair trade practice on their part and prayed for dismissal of the complaint. 

4.             The Parties led evidence in support of their contentions.

5.             We have heard the complainant in person as well as the  Learned Counsel for OP-1 and have also perused the record including written arguments.

6.             Having an overview of the contention of the complainant that a Nano car which he had booked with the OPs and was got financed by OP-2, had to be cancelled due to acute financial hardship and the same was agreed by OP-1. He submitted all the relevant papers for cancellation through Hind Motors, Chandigarh, but due to the pressure of OP-2, he had to foreclose his fix deposit and paid the booking amount of Rs.1,20,000/- to OP-2, whereafter he sought refund of the said amount directly to him but the OPs did not and paid it through OP-2 i.e. after a period of more than three months and this they have utilized the amount till 17.10.2009. In support of his contentions he has placed on record the copy of booking terms and conditions now marked Annexure C-1. Annexure now marked C-2 and Annexure C-3 are the copies of the statement of accounts which shows that he had paid the booking fees of Rs.3490/- to the OPs on 24.04.2009 and Rs.1,20,000/- towards the booking amount for the said car.  He has also placed on record Annexure now marked C-4,the copy of the extract of saving pass book account no. 8752 to prove that a sum of Rs.1,20,681/- has been withdrawn by him on 1.08.2009 to deposit it to OP-2.

7.             On the other hand OP-1 disputed that Nano car was booked through Hind Motors and was cancelled through them only but the complainant has not made them the necessary party, hence, the complaint is bad for nonjoinder of necessary party. They further contended that the booking amount was not payable to the complainant because the same was refundable to the financial institution in the finance case, as per the terms and conditions Annexure C-1 and therefore, the request against the direct refund of the amount was not acceptable being against the contract.

8.             Admittedly the amount in dispute has been received by the complainant. The dispute in the present case is only with regard to the interest of the said amount for the period which it was with the OPs i.e. for around two and a half months. The contention of the complainant that OP-1 should have paid the said amount directly instead of routing it through OP-2 cannot be accepted as correct because Annexure C-1 which is a part of agreement between the parties clearly indicates that in case of financed booking; refund was to be processed directly to the financer and not to the complainant. The relevant part of the Annexure C-1 is reproduced as under:-

       “FIVE:- Cancellation

       In case of financed booking, refund will be processed       directly   to the financer”.       

9.             In our view, the OPs have rightly released the amount in question after following the appropriate procedure/route, keeping in mind the terms and conditions of the contract agreed between the parties.  Otherwise also, the complainant has not been able to produce any document on record to prove that he was entitled for the direct release of the booking amount after the said booking is cancelled, in case the said booking amount was financed. The complainant himself has repaid/refunded the financed amount to OP-2 and thereafter sought refund of the same directly to him from OP-1 which as per Annexure C-1 is a clear breach of the contract between the parties at the time of booking the said car. In the absence of any other contract/evidence contrary to Annexure C-1, the complainant was bound to it and was not entitled to be facilitated beyond it.     

10.           The next contention of the complainant that OP-2 insisted on refund of the total amount of Rs.1,20,000/- for which he had to foreclose his fix deposit under that pressure and paid it to OP-2, is also not believable because nothing has been placed on record to prove this fact. He has not been able to produce any letter/document to suggest that he was ever forced/intimated by OP-2 for payment of Rs.1,20,000/-.  Therefore the oral assertions of the complainant cannot be taken into consideration against the OPs on this contention also.

11.           Facts and circumstances of the case, reveals that it was a financed case and the OPs while releasing the financed booking amount have rightly acted as per the terms and conditions mentioned in Annexure C-1 and for this act, they cannot be held liable for any deficiency in service or unfair trade practice on their part.

12.            In view of the above discussion, we are of the opinion that there is no merit in the present case and the same is accordingly dismissed.

              Certified copies of this order be sent to the parties free of charge.  The file be consigned.