Chandigarh

DF-I

CC/269/2023

SHAHBU SALMANI - Complainant(s)

Versus

Vikrant Garg, HARMONY AUTOMOBIA - Opp.Party(s)

02 Apr 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/269/2023
Date of Institution	:	19.5.2023
Date of Decision	:	2/04/2024

 

Shahbu Salmani, H. No 5290, Maloya, Chandigarh-160025.

 

Complainant

Versus

 

Vikrant Garg, Harmony Automobia, Sco-1, Sarawati Vihar, Old Ambala Road, Near Hotel Swan, Dhakoli, Zirakpur, Distt-Mohali-160104-Punjab.

Opposite Party

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER
	SHRI SURESH KUMAR SARDANA	MEMBER

                                                                               

ARGUED BY	:	Sh. complainant in person.
	:	Sh. Ammish Goel, Advocate for OP.

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by the complainant under Section 34& 35 of the Consumer Protection Act 2019 against the opposite parties  (hereinafter referred to as the OP). The brief facts of the case are as under :-

1. It transpires from the averments as projected in the consumer complaint that   in the month of December 2022 the complainant after going through the advertisement published by the OP on Facebook regarding  his business of sale of second hand car  contacted Mr. Vikrant Garg, proprietor of Harmony Automobia  and had shown his willingness to purchase a Hyundai Venue Car (hereinafter to be referred as subject car) . The complainant was called by the OP on 14.12.2022 and asked him to fill the terms and conditions form Agreement for Sale  which are annexed as Annexure 1, 1A and 1Aa. The complainant was asked to take test drive of the car which was taken by him and decided to proceed for the purchase of the said car. At that time the complainant had informed the OP that he  is in need of loan  of Rs.6,00,000and on this the OP had assured the complainant that loan will be arranged for him @8%  interest  from HDFC bank.  On the asking of the OP, the complainant had paid a sum of Rs.20,000/- as token money to the OP, which was paid via GPay  and the copy of receipt is Annexure C-3. Subsequently, some bank official of the said bank visited the house of the complainant from whom the complainant enquired  about the rate of interest  chargeable on the  loan amount and at that time the complainant was told by the official of the bank that 13% interest  shall be charged on the  loan amount. On this the complainant contacted the OP and informed  him as it was assured to him by the OP that  interest shall be chargeable @8% by the financial institute whereas the bank official was asking 13% interest  and immediately after that the complainant asked  the OP that since  he is not in  position to pay such higher rate of interest on the loan amount, the token money received by OP be refunded to the complainant.  Thereafter the complainant made numerous calls to OP but with no result.  Accordingly the complainant was compelled to send legal notice Annexure C-4 but with no result.  In this manner, aforesaid act amounts to unfair trade practice on the part of OP. OP was requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
2. OP resisted the consumer complaint and filed its written version, inter alia, taking preliminary objections of maintainability, cause of action, locus standi and concealment of fact. However, it is admitted that the complainant agreed to purchase the second hand car from the OP on 14.2.2022 and had transferred money of Rs.20,000/-  on account of token money in the account of the OP. However, it is alleged that the OP had never assured the complainant that loan with  interest @8%  will be granted by the OP from financial institute  and accordingly the complainant asked the OP to get the loan processed  for which the OP has submitted all the documents to the HDFC bank for sanctioning the loan. It is further alleged that the complainant had undertaken  that he will make the complete payment within 7 working days of the execution of the agreement failing which the deal shall be deemed  to be cancelled  and the token money will be forfeited. It is further alleged that as the complainant has not paid  remaining amount  of Rs.6,95,000/-  to the OP within the stipulated period as a result of which the OP has  suffered huge loss in his business as the subject car could not be displayed for sale to other customers and the  same was sold after long gap.  On merits, the facts as stated in the preliminary objections have been re-iterated. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
3. In rejoinder, complainant reiterated  the claim put forth in the consumer complaint and prayer has been made that the consumer complaint be allowed as prayed for.

2. In order to prove their case, parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
3. We have heard the learned counsel for the parties and also gone through the file carefully, including the written arguments on reord.
   1. At the very outset, it may be observed that when it is an admitted case of the parties that  the complainant agreed to  purchase the subject car from the OP vide agreement for sale Annexure 1a  dated 14.12.2022  for total sale consideration of Rs.7,15,000/-,  out of which he has paid an amount of Rs.20,000/- as token money to the OP and had also agreed to pay an amount of Rs.6,00,000/- by obtaining loan, the case is reduced to a narrow compass as i is to be determined if  the remaining amount could not be paid by the complainant to the OP  for the reasons which were beyond his control and the forfeiture of the entire token money of Rs.20,000/- having been received by the OP from the complainant on 14.12.2022 through GPay  is wrong and illegal and the complainant is entitled  for refund of the token money as is the case of the complainant or if the OP has rightly forfeited  the token money paid by the complainant and the complaint being false and frivolous is liable to be dismissed.
   2. In the back drop of the foregoing admitted and disputed facts on record, it is clear that the entire case of the parties is revolving around  the documentary evidence led by both the parties and in order to determine  the real controversy between the parties the same are required to be scanned carefully.
   3.   Perusal of Annexure 1a  Agreement for Sale dated 14.12.2022  clearly indicates that the OP has agreed  to sell the subject car to the complainant for a sale consideration of Rs.7,15,000/-. It further stands proved from the receipt Annexure C-3 that the complainant has transferred Rs.20,000/- in the account of the OP towards token money  on the same day i.e. 14.12.2022. The case of the complainant is that in fact the OP had assured the complainant that it will arrange the loan to the tune of Rs.6,00,000/- for the complainant payable with interest @8% p.a.   from financial institute HDFC bank,   whereas the official of HDFC bank had told the complainant that the interest on the loan would be @13% p.a.  for which the complainant was not ready and as such the complainant approached the OP for cancellation of the deal and refund of token money.
   4. On the other hand the defence of the OP is that the OP had never undertaken that it will  arrange loan from financial institution  with interest @8% p.a.  rather the OP has only played the role of facilitator  between complainant and the HDFC Bank  and as the complainant had failed to pay the remaining amount within the stipulated period i.e. within 7 working days from the date of agreement, and also that due to the aforesaid act of complainant  the OP suffered huge loss  and thus the OP has rightly forfeited the token money as per terms and conditions of the sale agreement.
   5. The learned counsel for OP has relied upon clause 2 of the Agreement for Sale Annexure 1a  which provides that the customer had undertaken to make the complete payment within 7 working days failing which the deal  shall be deemed to be cancelled and the token money will be forfeited and in case car being financed, documents as per financer  checklist  will be provided by  the customer within the next 5 days.
   6.  Perusal of Annexure OP-1 indicates that the complainant has provided most of the documents to the OP on the same day i.e. on 14.12.2022  which were forwarded by the OP to the HDFC.
   7. It is also evident from  Annexure OP-1 that after 17.12.2022,  there was no correspondence or chat between the HDFC or the OP except that the HDFC had agreed to sanction the loan to the tune of Rs.6,00,000/- payable with interest @12% p.a.. Thus one thing is clear on record that the OP has arranged the loan from HDFC to complainant to the tune of Rs.6,00,000/-.
   8. It is further clear that the deal  between the parties has been cancelled  from the complainant side for the reason which was beyond his control as he was not in a position to pay the loan amount alongwith interest @13% p.a. rather he was in position to repay the loan with interest @8% p.a.  and due to non availing of loan with higher interest the forfeiture of the token amount by the OP seems to be  very harsh   on his part who admittedly sold the subject car to third person after sometime  and nothing has been disclosed by the OP that what type of loss he has suffered due to the cancellation of the deal by the complainant qua the subject car. Thus it stands proved on record that the OP has already sold the subject car to some third person after cancellation of the deal. Hence, in our mind  the  forfeiture  of the token money by the OP despite of fact that the complainant was not in position to pay the loan amount even at the rate of 12% p.a.  amounts to unfair trade practice on its part  as the OP at the most could have deduct 20%  of the token money for the reason that it could not display the subject car for sale in its show room as the same was booked by the complainant. Thus, the OP should have paid the token money to the complainant after 20% deduction  which was not paid by him. Thus, the OP is liable to pay the token money to the complainant after making 20% deduction in the token money i.e.
      Rs.20,000 - Rs.4000/- =Rs.16,000/-.
4. In the light of the aforesaid discussion, the present consumer complaint succeeds, the same is hereby partly allowed and OP is directed as under :-

 

1. to pay ₹16,000/- to the complainant alongwith interest @ 9% per annum from the date of institution of the present consumer complaint i.e. till onwards.
2. to pay composite amount of ₹5000/- to the complainant as compensation for causing mental agony and harassment to him;

 

5. This order be complied with by the OP within 45 days from the date of receipt of its certified copy, failing which, it shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of this order, till realization.
6. Pending miscellaneous application(s), if any, also stands disposed off.
7. Certified copies of this order be sent to the parties free of charge. The file be consigned.

Announced 2/04/2024 mp			Sd/- [Pawanjit Singh] President
			Sd/-
			[Surjeet Kaur] Member
			Sd/-
			[Suresh Kumar Sardana] Member