PREMIER AUTOMOBILES LIMITED v. T. N. BAHA — 1992 DIGILAW 523 (DEL)

B. S. Yadav, J. ( 1 ) THIS order will dispose of both the above titled Revision Petitions as they arise out of the same order passed in Appeal No. 40 of 1991 by Karnataka State Consumer Disputes Redresal Commission, Bangalore. The Reviision Petitioner in Revision Petition No. l4 is the manufacturer of Premier 118 NE Cart (hereinafter referred to as the Manufactutrer) while Revision Petitioner in Revision Petition No. 23 is the authorised dealer (hereinafter referred to as the Dealer) for sale and supply of the said car. Shri T. N. Babu who is Respondent No. 1 in both Revision Petitions (hereinafter referred to as the Complainant) registered with the Manufacturer for the purchase of a Premier 118 NE Car in 1985 by paying an advance of Rs. 11,000. 00 The Complainant received a letter dated 13th January, 1990 from the Dealer calling upon him to pay Rs. l,64,642. 00. That amount was arrived, at by quoting the ex- showroom price of the car at Rs. l,75,642. 00 less Rs. ll,000. 00 paid as advance. The Compainant paid the balance amount of Rs. l,64,642. 00 by means of a draft dated 3rd February, 1990 to the Dealer. Thereafter the Complainant did not receive any intrnation from the Dealer about the delivery of the car in spite of his approaching the Dealer almost every alternate days. The Complainant received another letter dated 3rd April, 1990 from the Dealer calling upon him to pay a sum of Rs 17,0 (}2\- since the price of the Premier 118 NE Car bad been revised w. e. f. 27th march 1990. On receiving that letter the Complainant approached the Dealer and requested them to deliver the car without insisting on the payment of Rs. l7002\- on the ground that he bad already paid the full value. The Dealer did not accede to this request of the Complainant and thus the latter was forced to pay the said amount of Rs. 17,002/on 18th April, 1990. Ultimately the car was delivered to the Complainant on 8th May, 1990. According to the Complainant, the Dealer was not at all justified in collectig the said amount of Rs. l7,002. 00 from him as he had already paid the full value of that car on 3rd February, 1990 when the car which was allotted to him on priority basis was ready for delivery in the Dealer s showroom. According to the Complainant, the Dealer was not at all justified in collectig the said amount of Rs. l7,002. 00 from him as he had already paid the full value of that car on 3rd February, 1990 when the car which was allotted to him on priority basis was ready for delivery in the Dealer s showroom. The Dealer had withheld the delivery of the car on receiving the amount of Rs. l,64,642. 00 from him expecting that the price of the car would be revised in the budget for the year 1990- 91. Thus the Complainant filed a complaint betore the District Forum, Bangalore for recovery of the said amount of Rs. 17,002. 00 with interest amounting to Rs. 8,314/ on the amount of full value of the car paid by him on 3rd February, 1990 @ 18% per annum till the date of delivery of the car. ( 2 ) BEFORE the District Forum only the Dealer had been arrayed as the Opposite Party. The Dealer took up some preliminary objections with which we are not concerned at this stage. On merits the Dealer pleaded that under letter dated 13th January, 1990 while giving the particulars of the price of the car it had also been slated that the price collected was the ruling price as on that dale and that the same was subject to change and that the price ruling on the dale of delivery would apply. At the time of accepting the demand draft for Rs. l,64,652. 00 the Complainant was clearly informed that for the delivery of the car it would lake at least 10 to 12 weeks from that dale. By virtue of the increase in excise duty on cars in the National Budget prented on 19th March, 1990 and also as the revision of the price of the car came into effect from 27th March, 1990 by the Maufacturer, there was an increase in the price of the car by Rs. l7,002. 00. On being satisfied with the reasons for the difference ill price, the Complainant had paid the said amount without any demur and look 406 delivery of the car on 8th May, 1990 and as such the Complainant is not entitled to the refund of the said amount of Rs. l7,002. 00 or to any interest as claimed by him. 00. On being satisfied with the reasons for the difference ill price, the Complainant had paid the said amount without any demur and look 406 delivery of the car on 8th May, 1990 and as such the Complainant is not entitled to the refund of the said amount of Rs. l7,002. 00 or to any interest as claimed by him. ( 3 ) THE District Forum held that since the Complainant-had paid the entire price of the car as prevailing on 3rd February, 1990 as demanded by the Dealer, the Complainant was not liable to pay any further amount at the time of delivery of the car for the simple reason that the delay in delivery of the car was not occasioned by any act of the Complainant. The dealer was, therefore, held liable to refund the amount of Rs. l7,002. 00 which according to the District Forum bad been collected from the Complainant without any justification. The District Forum gave the above finding I after observing that it was not the case of the Dealer that the Complainant at the ime of booking the car with the Maufacturer bad agreed to pay the price of the car on demand either by the Manufacturer or by the Dealer at any time prior to the date of delivery and, therefore, the Dealer of the car. could not have unilaterally incorporated the condition in the letter dated 13th January, 1990 that the ruling price was ubject to change without notice and the price ruling at the time of actual delivery would only apply. The District Forum also came to the conclusion that the car was available with the Dealer for allotment to the complainant on 3rd February, 1990 on which date the balance amount was received by them. The District Forum also allowed interest to the complainant on the amount of Rs. l,64,642. 00 @ 12% per annum from 3rd February, 1990 to 8th May, 1990 which came to Rs. 5,550. 00. The District Forum, accordingly asked the dealer to repay the Complainant a sum of Rs. 17,002/ with interest thereon @ 12% from 3rd February, 1990 till the date of payment. The dealer was further asked to pay to the Complainant Rs. 5,550. 00 being the amount of interest as noticed above. 5,550. 00. The District Forum, accordingly asked the dealer to repay the Complainant a sum of Rs. 17,002/ with interest thereon @ 12% from 3rd February, 1990 till the date of payment. The dealer was further asked to pay to the Complainant Rs. 5,550. 00 being the amount of interest as noticed above. Here we may mention that we have not been able to understand how the District Forum allowed the interest on the sum of Rs. l7,002/ from 3rd February,1990 when that amount was actually paid on 18th April, 1990. ( 4 ) FEELING aggrieved by that order the Dealer filed appeal before the Karnataka State Consumer Disputes Redressal Commission, Bangalore, Before the Stale Commision the Complainant filed an application to the effect that the Manufacturer be made a party and that application was allowed. Before the State Commission the counsel appearing for the Manufacturer urged that the car allotted to the Complainant was ready for delivery only on 29th April, 1990 on which date it was despatched by the Manufacturer to the Dealer. The Dealer also produced the list of cars received by him from 5th February, 1990 till the date of invoicing the car of the Complainant. It did not show that any car of swan colour , the shade of the car hooked by the complainant was available for delivery prior to 29th April, 1990. In that list at serial No. 74 one car has been shown to have been sold on 26th April, 1990 to a person who had made the payment on 26th April, 1990, that is subsequent to the dale of payment by the Complainant but that car was of maroon colour. The Dealer, therefore, contended before the State Commission that the turn of the complainant had not been overlooked by them. The State Commission upheld the contention of the Dealer to the basis of gate pass etc. and held that the car allotted to the complainant was despatched from Bombay hy the Manufactuter to the Dealer only on 29th April, 1990 and by that dale the Budget had been introduced and the excise duty on the car had been raised from 35% to 40% w. e. f. 20th March, 1990. and held that the car allotted to the complainant was despatched from Bombay hy the Manufactuter to the Dealer only on 29th April, 1990 and by that dale the Budget had been introduced and the excise duty on the car had been raised from 35% to 40% w. e. f. 20th March, 1990. The State Commision further held that the condition No. 16 of the terms and conditions of the application 407 for registration for the car show that the car was to be sold and delivered subject to such terms and conditions, price and specifications as may be prevailing at the time of actual delivery and further in the letter dated 13th January, 1990 it was subject to change without notice and the price ruling at the time of actual delivery bad to be paid by him and the Complainant with eyes open and knowingfully the said condition had agreed topurchase the car. Therefore, it was not now open to him to say that he was not bound to pay the increased price. The State Commission held that the finding of the District Forum that the car was ready with the Dealer on 3rd February, 1990 and that they purposely withheld delivering the same with a view to extract the enhanced price from the complainant could not be sustained. The contention of the Complainant that the edorsement on his letter dated 5th February, 1990 to the effect "informed the party the delivery will take at least 10 to 12 weeks" was later made by the Dealer and he was not told about it at the time of giving receipt to him on 5th February, 1990 was not accepted by the State Commision. The State Commision further held that ordinarily the time is not the essence of the contract when it involves a sa!e of a car which is a movable property and no circumstance had been brought out by the Complainant to show that the time was essence of the contract. It was further remarked that in the circumstances of the case the delay of three months and three days in the delivery of the car could not be said to be unreasonable and therefore the Complainant was not entitled to any interest by way of damage on the amount paid by him. It was further remarked that in the circumstances of the case the delay of three months and three days in the delivery of the car could not be said to be unreasonable and therefore the Complainant was not entitled to any interest by way of damage on the amount paid by him. According to the State Commission, inview of the fact that the delivery was to take place in at least 10 to 12 weeks the contract did not become voidable by the failure of the Manufacturer and the Dealer to deliver the car on or before 5th May, 1990 since time was not the essence of the contract in this case. However, the State Commission further held that the Complainant was entitled to Compensation from the Dealer as well as the Manufacturer about the loss occasioned to him by such failure as the. complainant must have been put to inconvenience due to non-availability of the car during that period and also lost the benefit of the use of the said amount without delivering the car to him as payment and delivery are concurrent conditions according to section 32 of the Sale of Goods Act. In view of the above findings the State Commission partly allowed the appeal and modified the order of the District Forum by directing the Dealer and the Manufacturer to pay Rs. 5,000. 00 to the complainant instead of Rs. 22,652. 00 as ordered by the District Forum. ( 5 ) FEELING aggrieved with the above order both the Manufacturer and the Dealer have filed these separate Revision Petitions. ( 6 ) MR. Bhasin, counsel tor the Manufacturer rightly argued that after giving a finding to the effect that under the circumstances of the present case the contract had to be performed by the Dealer and the Manufacturer within a reaonable time in delivering the car to the Complainant and regard being had to the circumstances of the case, the delay of 3 months and 3 dnys in Ilic delivery of the car could not he said to he unreasonable and the Complainant was not entitled to any intrest by way of damages on the amount paid by him, the State Commission was not justified in awarding Rs,5,000. 00 as compensation to the Complainat for the incovenience caused to him due to non-availability of the car during the period of delay and loss of benefit of the use of the said argument has force. When there has been no unreasonable delay in the delivery of the car 408 the complainant was not entitled to any compensation either for the inconvenience caused to any compensation either for the inconvenience caused to him during the period of delay or for the loss of benefit. of the use of the amount. At the time the Complainant bad deposited that amount, he was clearly told that the delivery would take place in 10 to 12 weeks. In spite of being informed of the time likely to be taken for the delivery of the car, the Complainant willingly paid the amount of Rs. l,64,642. 00 on 5th February, 1990. It has also been held by the State Commission that before the date the car was delivered to the complainant no car of the shade of the choice of the complainant was available with the Dealer. The car was invoiced by the Manufacturer on 29th April, 1990. When there was no unreasonable delay in the delivery of the car of the shade of the choice of the Complainant he was not entitled to any compensation on any account. ( 7 ) ACCORDINGLY, we allow both the Revision Petitions and set aside the Orders of the State Commission as well as of the District Forum and dismiss the complaint filed by the Complainant. We make no order as to costs in both the Revision Petitions.