JUDGEMENT

          Complainant by filing this complaint has submitted that complainant for the purpose of making his livelihood intended to purchase a TATA LPK 2518 FBT vehicle and for that purpose complainant negotiated with the op for such vehicle bearing Registration No. JH 18/B 5434, Engine No.B 59180 3111 C 6311 2764 and Chassis No.MAT 44808 6B3C 08107 and the said vehicle was in the possession of the op at the time of said negotiation.  It is pertinent to mention that the said vehicle originally belonged to one Ajit Kumar (Loan A/C No. BIRBU01033100003), a defaulting customer of the op and as such the vehicle was taken possession by the op and op at the time of selection of the vehicle assured the complainant that all the necessary documents are with them and same would be supplied after delivery of the vehicle on payment.

          On negotiation the price of the said vehicle was fixed at Rs. 16,50,000/- and op was informed to deposit a sum of Rs. 3,00,000/- to the op in the name of Ajit Kumar.  The complainant accordingly on good faith handed over the cheque bearing No. 000009 dated 29.05.2012 drawn on Bank of Baroda, Kolkata amounting to Rs. 3,00,000/- in favour of Ajit Kumar to the op.  On 31.07.2012 a written agreement bearing No. KOLSB0207310006 was entered into by and between the parties in respect of the said vehicle.  Unfortunately in spite of repeated request no copy of such agreement was handed over to the complainant.

          However at the time of delivery of the said vehicle, complainant was assured by the op that registration certificate as well as the necessary documents shall be handed over to the complainant after completion of the registration of the said vehicle in the name of the complainant by the RTA and the said transfer shall be facilitated by the op after that.  Complainant on good faith took delivery of the said vehicle and started paying monthly EMIs as per the verbal instruction of the op within the period of 08.09.2013 to 31.03.2014 and in total complainant has made payment of Rs. 1,74,500/- towards installment.  Though the said vehicle could not be utilized by the complainant due to non availability of the necessary documents.

          During the aforesaid period complainant on several occasions had requested to hand over the said documents for plying but nothing positive step has been taken by the op except certain false assurances.Due to such arbitrary and high handedness action on the part of the op, the complainant has suffered huge financial loss as he could not ply the said vehicle for want of necessary documents.

          Having no other alternative on 24.08.2013 complainant through his Ld. Advocate issued a notice upon the op calling upon them to complete the formalities for registereing the said vehicle in the name of the complainant and also to hand over such necessary documents to the complainant or to refund the amount of Rs. 4,72,000/- which has been paid by him to the op.  but in spite of receiving such notice no action was taken by the op.

          Practically for such sort of deficiency of service and unfair trade practice as bonafide consumers of op, complainant has filed this complaint for specific relief and redressal.

          In the present case notices were duly served upon the ops and ops filed written version on 13.07.2014 stating that complainant is not the consumer of the op.  So, it is not entertainable by this Forum.  But it is admitted that complainant purchased the said vehicle from the op by hypothecation of the same to the op and it is also admitted by the op that the earlier the vehicle was purchased by one Ajit Kumar through hypothecation being Loan A/c No. BIRBU01033100003 to the op.  But Ajit Kumar failed to pay the EMIs and defaulted.  So, the vehicle was repossessed by the op and sold to the complainant by a fresh hypothecation.  But op has claimed that they never assured the complainant that they shall register the said vehicle in the name of the complainant and it is further submitted that earlier registration was handed over to the complainant at the time of delivery of the said vehicle.  But complainant did not take any step for registering the same or transferring the name of the previous name and installment has not been regularly paid within due date by the complainant for which this false case is filed and particularly the vehicle was purchased by the complainant in the year 2012.  But complainant did not take any step to make any registration in the name of the complainant and denial all other allegations and their liabilities about the registration of the said vehicle and prayed for dismissal of this case.

Decision with reasons

          On meticulous care we have gone through the complaint and written version and also considering the admission of the op, it is clear that the present vehicle bearing Registration No. JH 18/B 5434 stood in the name of one Ajit Kumar and the said vehicle was hypothecated to the op by Ajit Kumar on the basis of such Loan A/c No. BIRBU01033100003.  But he failed to pay EMIs to the op for which as per loan agreement it was repossessed by the op and op intended to sell the same and at the relevant point of time complainant was tried to purchase one vehicle for his livelihood and complainant after negotiation agreed to purchase the said vehicle subject to transferring the same in the name of the complainant and the op no doubt assured for which complainant agreed to sell the same at a fixed price of Rs. 16,50,000/-.

          In fact as per ops’ version, op deposited Rs. 3,00,000/- by cheque in the name of Ajit Kumar to the op and no doubt on 31.03.202 written Loan A/c bearing No. KOLSB0207310006was entered into in between the complainant and op.  But truth is that the said vehicle still stands in the name of Ajit Kumar and op has not transferred the same in the name of the complainant yet.  It is to be mentioned in this regard that the seller op has his liability and legal responsibility to hand over a valid transfer certificate regarding the registration of the vehicle in the name of the complainant otherwise any agreement in between the complainant and op in respect of that vehicle shall be treated as void when the said vehicle stands in the name of previous defaulter customer Ajit Kumar and after proper consideration of the written version, it is clear that op has not yet handed over the transfer certificate of registration in favour of the complainant by deleting the name of Ajit Kumar in respect of R.C. Book from RTA and other documents are not also handed over.

          So, apparently after considering the material, it is found that sell of the vehicle by the op to the complainant is no doubt a void sell in view of the fact op was not the owner of the vehicle but he repossessed forciblywithout any legal recourses as per law and another factor is that when Ajit Kumar the previous customer failed to pay the EMI as per loan agreement in that case it was the duty to start a arbitration proceedings and as per order of the Arbitrator op had his scope to do the needful but that process has not been exhausted to sell the said vehicle to the complainant and in fact op has no legal authority to transfer the said vehicle to the complainant without getting any order from the Arbitrator or the Civil Court.  So apparently it is clear that complainant was duped and deceived by the op and in fact a fresh agreement as it was executed in between the complainant and op on 31.07.2012 is void and in operative in the eye of law.  So, in the circumstances, it is clear that op illegally without any legal authority sold away the said vehicle to the complainant and in fact complainant had/has no scope to ply the said vehicle unless and until registration certificate of the said vehicle is transferred in the name of the complainant.

          So, considering that fact it is clear that op has no doubt deceived the complainant by selling the said vehicle in favour of the complainant after taking Rs. 4,72,500/- and the entire conduct on the part of the op is no doubt unfair trade practice in the eye of law.  Fact remains that op sold the property, so invariably complainant is a consumer under the op and regarding loan agreement dated 31.07.2012 (KOLSB0207310006) it is completely void abinitio document. 

          So, on the basis of that document, complainant cannot be bound by that clause etc. and in the light of the above observation and also considering the material fact, further relying upon the defenceof the op we are convinced to hold that op had no power to transfer the said vehicle without any document of registration in the name of the complainant butrealizedRs. 4,72,500/- illegally and such a sale is not in the eye of law as legal sale.  Because it is mandatory provision of law that sale of vehicle shall be valid on the date of registration of the vehicle in the name of the purchaser and op in this case has failed to prove that op handed over the valid documents of transfer of the vehicle in favour of the complainant along with the said vehicle and in view of the above findings we are convinced to hold that complainant is entitled to get relief as prayed for when he has been duped and deceived by the op whenop has no legal right to sell the vehicle and fact remains after receipt of the vehicle on payment of Rs. 3,00,000/- and further payment by EMIs by complainant, he is no doubt deceived and sorightly entitled to get interest over the said amount which has been accrued for want of valid registration certificate issued by RTA and that was the legal responsibility of the op as seller to do that but that has not been done.

          So, invariably for that reason complainant failed to use the said vehicle and practically complainant suffers huge loss for last two years.

          In the result the complaint succeeds.

          Hence, it is

ORDERED

          That the complaint be and the same is allowed on contest against the op with cost of Rs. 10,000/-.

          Op is directed to pay/refund Rs. 4,72,500/- without any fail along with interest  at the rate of 8 percent p.a. over the same w.e.f. 05.09.2013 and till its full payment by the op.

          For deceiving the complainant and for duping the complainant in such a manner by the op and for causing mental pain and agony and harassment and for suffering financial loss for the laches and negligent manner of service by the ops, op shall have to compensate the complainant by paying a sum of Rs. 50,000/- and same shall be paid along with above decretal amount including litigation cost within one month from the date of this order failing which for non-compliance and disobeyance of Forum’s order, op shall have to pay penal damages  at the rate of Rs. 500/- per day till full satisfaction of the decree and if penal damages are collected it shall be deposited to the account of President, DCDRF, KolkataUnit-II even if it is found that op is reluctant to comply the order of the Forum for disobeyance of the Forum’s order penal proceedings shall be started against the op for which op shall be liable for that.

          On payment of decretal amount by the complainant, op shall take back the vehicle from the complainant as its present condition on proper receipt.