KALINGA AUTO CENTRE LTD vs PRATIK PATTNAIK

IN-CHARGE-BEING saddled with liability to pay the booking amount with compensation and cost jointly and severally as directed by the District Forum, Cuttack, both the dealer and the manufacturer have come up in appeal before us.

THE facts of the case are that the complainant had paid an amount of Rupees 21,000 to the appellants towards advance amount while booking an order for supply of Fiat car. For this purpose, the complainant had paid the amount through a Bank Draft of Paradeep Branch of Bank of India on 18. 2. 1996 which was handed over by him to the local dealer, Kalinga Auto Centre Ltd. (appellant No. l ). Due to some financial difficulties, the complainant cancelled the booking on 6. 6. 1996 and the manufacturer Premier Automobiles Ltd. (appellant No. 2) confirmed the cancellation on 9. 7. 1996. Although the complainant sent several letters and reminders, they did not refund the amount. Hence, the complainant filed the case before the District Forum. The District Forum while allowing the complaint has directed both the dealer and the manufacturer to refund the advance booking amount of Rupees 21,000 along with compensation of Rs. 7,000 and cost of Rs. 500 within sixty days of the order, failing which the awarded amount shall carry interest @18% per annum. The above order is now under challenge in this appeal.

Heard the learned Counsel for the appellants. None appeared for the respondent although service of notice against him was held sufficient.

IN the grounds of appeal, the appellant''s main contentions are that the District Forum has no jurisdiction to adjudicate the present dispute as because as per the terms and conditions of booking, the Courts at Bombay would have jurisdiction. Besides that they have neither denied nor refused to refund the money, for which they cannot be held guilty of unfair trade practice, the District Forum has no jurisdiction to award interest. The matter relating to refund of booking amount cannot be adjudicated in a Consumer Forum and the complainant is not a consumer. We considered all the grounds taken by the appellant and observed that none of grounds has got merit at all. Regarding the plea taken on jurisdiction, the District Forum has got jurisdiction to adjudicate upon the matter as one of the appellants (opposite party in the Forum below) i. e. the dealer - Kalinga Auto Centre Ltd. is carrying on their business activities at Cuttack and the Bank Draft towards advance booking amount was handed over to the dealer at Cuttack. So some part of the cause of action arose at Cuttack within the territorial jurisdiction of the Forum below. So, the ingredients of Section-11 of the C. P. Act are satisfied. The appellants'' plea that they have neither denied or refused to refund the money and hence they cannot be held guilty of unfair trade practice is nothing but clear case of unfair trade practice. The question is how much time the complainant could wait to get his money, for months or for years ? The appellants certainly have no right to keep the money of the complainant for indefinite period when they have confirmed the cancellation. While rejecting the other grounds, we hold that the complainant is a consumer as he has paid consideration amount towards booking of the car and hired the service of the present appellants for supply of the car. When they have illegally retained the money of the complainant after confirmation of cancellation, they are certainly liable to pay interest. The District Forum has done no illegality while awarding interest, compensation and cost to the complainant.

AT the time of hearing the learned Counsel of the appellants argued that as per the decision of the Hon''ble National Commission as well as of this Commission, the manufacturer Premier Automobiles Ltd. (appellant No. 2) is only liable to refund the money, not the dealer Kalinga Auto Centre Ltd. (appellant No. l ). We closely analyse those decisions. In the judgment/order pronounced by the Hon''ble National Commission, the dealer alone has preferred the appeal in which they had taken the stand that as they handed over the money to the manufacturer and as the money has been retained by the manufacturer, the dealer is not liable to pay the money to the complainant. Similarly in the judgment/order pronounced by this Commission also in C. D. A. No. 221 of 2001, the dealer has preferred the appeal alone and it is also their case that they have handed over the money to the manufacturer and the money is lying with the manufacturer. So, in the premises, the Hon''ble National Commission and this Commission has directed the manufacturer to refund the money. But, in the present case, it was neither pleaded by the dealer that they have handed over the money to the manufacturer nor produced any proof in support of that. Neither in the written version nor in the memo of appeal, such plea was taken by the appellant. Besides that the present appeal was preferred by both the dealer and manufacturer. So the decisions cited by the appellants are not applicable to the facts and circumstances of the present case. In view of our above discussion, the order passed by the District Forum is hereby confirmed and the appeal is dismissed without cost. Records received from the District Forum may be sent back forthwith. Appeal dismissed.