Fiat India Private Limitedrevisioni vs MANJIT KAUR

THIS revision petition has been filed by M/s. Fiat India Private Limited, Lal Bahadur Shastri Marg, Kurla, Mumbai against the order dated 30.9.2003 of the District Consumer Disputes Redressal Forum -I, U.T., Chandigarh [for short hereinafter referred to as the District Forum] passed in Execution Application No. 898 of 2002 directing the revisionist to make the payment of the booking sum of Uno car. A sum of Rs. 21,000/ - were deposited as booking amount. The O.Ps. comprising of M/s. Premier Automobiles Ltd., Lal Bahadur Shastri Marg, Kurla, Mumbai and Sales Deptt. (UNO) of M/s. Premier Automobiles Ltd., Mumbai failed to refund the booking amount along with interest.

THE main grievance of the revisionist is that there was no direction issued to it under the judgment and order, which has been put under execution against the revisionist M/s. Fiat India Pvt. Ltd. yet in the execution case, the revisionist has been impleaded as a co -judgment debtor and now a direction has been issued by the Executing Court to the revisionist to pay to the decree holder the booking amount along with interest, which is contrary to law and is even contrary to the agreement entered into between M/s. Premier Automobiles Ltd. and M/s. Fiat India Pvt. Ltd. The learned Counsel for the revisionist submitted that the impugned order being contrary to law is liable to be set aside and no proceedings under Section 27 of the Consumer Protection Act, 1986 by way of execution can proceed against the revisionist. The learned Counsel for the respondent/decree holder, on the other hand, contended that by virtue of the date of agreement entered into 30.3.1998, a photocopy of which has been placed on record of the revision petition, the financial liability of the assignor namely M/s. Premier Automobiles Ltd. stood transferred and assigned to the assignee Ind Auto Limited. This agreement contains in the opening para as under: ''Whereas the assignor has agreed to transfer and assign its entire UNO undertaking and business as a going concern including, (i) land and buildings; (ii) other assets; (iii) intangible assets; (iv) Uno losses, start -up and development costs; (v) financial liabilities; (vi) current assets and liabilities; (vii) provisions; (viii) contracts; and (ix) employees of the assignor, all of which items are identified in Exhibit 1 hereto be transferred as a whole, (hereinafter called the ''the Spun -off business''), unto the assignee with effect from 29th September, 1997 (hereinafter referred to as ''the Effective Date'') by way of slump sale in consideration of the assignee issuing 32,00,000 (thirty two lacs) equity shares of Rs. 100/ - each at par credited as fully paid up aggregating to the normal value of Rs. 32,00,00,000/ - (Rupees thirty two crores); And whereas the transfer of the spun -off business as a going concern by the assignor to the assignee has been approved by the general meeting of the shareholders of the assignor; And whereas the assignor had, prior to the execution hereof placed the assignee in juridical, actual and physical possession and charge of all the movable properties comprised in the spun -off business, which are capable of being transferred by delivery of possession.''

HERE , it may be mentioned that there was change of the name of the company Ind Auto Limited. Annexure C is the fresh certificate of incorporation, consequent on change of name, issued by the Deputy Registrar of Companies, Maharashtra, Mumbai approving and signifying consent to change of the name of the company from Ind Auto Limited to Fiat India Limited and the said authority certified that Ind Auto Limited, which was originally incorporated on 23.11.1992 under the Indian Companies Act, 1956 and under the name ''Pal Cooper Private Limited'' having duly passed the necessary resolution in terms of Sections 21/22(1)(a)/22(1)(b) of the Companies Act, 1956 and the name of the said company is this day changed to Fiat India Limited and this certificate is issued pursuant to Section 23(1) of the said Act and was issued on 8th May, 2000. After the change of the name of Ind Auto Limited, the company functioned as Fiat India Limited and stepped into the shoe of Ind Auto Limited, its formal name and who was assignee in the deed of assignment executed.

THE District Forum referred to Exhibit (1), the recital under the heading ''UNO Booking liabilities'', which reads as under: ''UNO booking means all the sums anticipated to PAL in connection with the allotment of priority numbers for UNO model by the depositors.''

The District Forum further held that a perusal of the aforesaid paras of the deed of assignment revealed that all the assets and liabilities with regard to UNO booking were taken over by the Fiat India Pvt. Ltd., which could not escape the financial liability regarding the refund of the booking money of the UNO car. A perusal of Exhibit (1) shows that under the heading ''UNO booking liabilities'', apart from the recital quoted above, it is mentioned that ''List for sake of identification is attached. The total amount of UNO booking as of the 29th September, 1997 is equal to Rs. 2,73,20,00,000/ - (Rupees two hundred seventy three crores twenty lakhs only) and does not include the relevant accrued interest. These inters are included in the current assets. Current liabilities, funds and provisions. Pal represents that the outstanding balance of UNO booking as of 29th September, 1997 is approximately the following: Particulars Cars (X 1000) Rs. MIO A Total booking received 290 6.104 B Less cancellations received as on 29.9.1997 160 3.372 C Less cancellations not paid as on 29.9.1997 44 924 D Balance cancellation already paid up to 29.9.1997 116 2.448 E Balance bookings as on 29.9.1997 (A -D) 130 2.732

NEXT it was contended that the deposit in question related to the period prior to the date on which the assignment took place and Fiat India Pvt. Ltd. cannot be made liable for payment of the same. The learned Counsel for the revisionist placed reliance on the judgment of this State Commission rendered in the case of Amarjit Kaur and Others v. JVG Investment Ltd., I (2003) CPJ 25, holding that each company is a separate juristic person, which can sue and can be sued separately. There cannot be a dispute regarding the proposition of law, which was discussed in the case of Amarjit Kaur and Others (supra). The facts in the instant case are different from the facts involved in the case of Amarjit Kaur and Others (supra). The revisionist is the assignee of the financial liabilities of the assignor company namely M/s. Premier Automobiles Pvt. Limited.

THE next authority, which has been relied upon is reported in the case of Heavy Engineering Mazdoor Union v. The State of Bihar and Others, (1969) 3 SCR 995, the case related to Industrial Disputes Act. The contention of the appellant before the Honble Apex Court was that the industry in question was carried on under the authority of the Central Government within the meaning of Section 2(1) of the Act and the reference under Section 10 was, therefore, required to be made by that Government. The Honble Supreme Court held that ''The words ''under the authority of'' mean pursuant to the authority, such as where an agent or a servant acts under or pursuant to the authority of his principal or master. That obviously cannot be said of a company incorporation under the Companies Act whose constitution, powers and functions are provided for and regulated by its memorandum of association and the articles of association. An incorporated company has a separate existence and the law recognizes it as a juristic person separate and distinct from its members. The mere fact that the entire share capital of the respondent -company was contributed by the Central Government and the fact that all its shares were held by the President and certain officers of the Central Government did not make any difference''. The controversy before the Honble Supreme Court was thus entirely different from the controversy involved in the instant case. There can be no doubt that a company incorporated under the Indian Companies Act has a separate entity inasmuch as it can sue and can be sued and is a juristic person. The dispute in this case is relating to the liability and assets transferred by the deed of assignment by one being incorporated under the Indian Companies Act i.e., M/s. Premier Automobiles Pvt. Ltd. and the revisionist company i.e., Fiat India Pvt. Ltd.

LASTLY , reference was made to the case of Khardah Company Ltd. v. Raymon and Co. (India) Private Ltd., (1963) 3 SCR 183, which was a case relating to forward contract. The appeals were filed against the judgment of the Honble High Court of Calcutta, which set aside the award of the Arbitrator directing the respondent to pay to the appellant a sum of Rs. 41,250/ - as compensation for breach of contract as the said contract was in contravention of the notification of the Central Government dated October 29, 1953 and that in consequence proceedings taken thereunder before the Chamber of Commerce and the award in which they resulted were all void. Three fold submissions were made before the Honble Apex Court as would appear from perusal of page 187 of the authority. The learned Additional Solicitor General raised the three contentions as under: (1) On the terms of the arbitration clause the question whether the contract dated September 7, 1955, is illegal is one for the Arbitrator to decide and that it was not open to the respondents to raise the same in the present proceedings under Section 33 of the Arbitration Act. (2) The respondents are estopped from questioning the validity of the award by reason of their having submitted to the jurisdiction of the Arbitrators. (3) The agreement dated September 7, 1955, is a non -transferable specific delivery contract within Section 2(f) of the Act and it is not hit by the notification dated October 29, 1953.

THE submission centered around the arbitration clause and the dispute whether the contract dated 7.9.1955 was legal and whether the same was to be decided by the Arbitrator and the same was not open to be raised in the proceedings under Section 33 of the Arbitration Act. The second point related to estoppel inasmuch as whether the respondents were estoped from questioning the validity of the award by reason of their having submitted to the jurisdiction of the Arbitrators and lastly whether agreement dated 7.9.1955 was a non -transferable specific delivery contract within Section 2(f) of the Act and not hit by the notification dated 29.10.1953. A perusal of these controversies itself will go to show that the facts in the instant case are entirely different and distinct from the facts and controversy involved in the case of Khardah Company Ltd. (supra).

IT may be pointed out that since the liability including the financial liabilities under the heading ''UNO booking liabilities'', which have been detailed and as quoted above, of M/s. Premier Automobiles Pvt. Ltd. were assigned to the assignee Ind Auto Limited (now name changed as Fiat India Limited), the order directing the refund of the booking amount of UNO car, which has been put under execution along with recovery of interest, is the liability, which was pending with M/s. Premier Automobiles Pvt. Ltd. and which now stood assigned by the deed of assignment to Fiat India Ltd., which cannot deny its liability to make the payment.

IT may be mentioned that the complainant as a consumer was entitled to the refund of the booking amount of UNO car and he cannot be left without any remedy because according to Premier Automobiles Pvt. Ltd., the assignor company in the deed of assignment, all the UNO bookings had been assigned to Fiat India Pvt. Ltd. vide Deed of Assignment. While according to Fiat India Pvt. Ltd., the assignee of the deed of assignment, the case related to pre -cutoff date when the financial liabilities of the assignor company had not been assigned to the assignee company. The maxim ''UBI JUS IBI REMEDIUM'' i.e., where there is a right there is a remedy corresponding to the right would be applicable to the case of the complainant who is the decree holder. It may further be mentioned that under the provisions of the C.P. Act, which has been enacted for providing better protection of the rights of the consumers, the interpretation, which has been adopted by the District Forum and which is in favour of the consumer has to be preferred from the interpretation, which might for some technical reason be interpreted in favour of the provider of the service, which in the instant case is the successor of M/s. Premier Automobiles Pvt. Ltd. namely Fiat India Limited.

IN this view of the matter, we find that the District Forum has committed no error in law in proceeding with the execution of its order passed in the complaint case regarding the refund of the booking amount with interest. The revision is devoid of merit and is dismissed leaving the parties to bear their own costs of petition. Copies of this order be sent to the parties free of charge. Revision dismissed.