MODERN AUTOMOBILES vs MOHINDER PARTAP AND

THIS appeal is virtually concluded against the appellant by the detailed order of this Commission in M/s Modern Automobiles, G.T. Road, Ambala v. Abinashi Lal Narang of Gohana, First Appeal No. 257 of 1992, decided on the 21st of September, 1992. It therefore suffices to notice the merits of the case with relative brevity.

THE facts herein are closely analogous to the case aforementioned. Way back on the 26th of June, 1990, the complainant-respondent had booked a Maruti air conditioned silver milk car with the appellants. About four months thereafter by their letter dated the 17th of October, 1990, appellants informed the complainant that the cars booked on the cut off date of the 30th of June, 1990 were to be dispatched from Gurgaon over a period of one month and be delivered to the customers accordingly. Further, the complainant was required to deposit the balance amount of the price of the car forth with. Accordingly, the respondent deposited a sum of Rs. 1,06,971/- on the 31st of October, 1990. The specific case setup by the complainant was that despite the deposit of the full price the appellants intentionally did not delivers the vehicle within one month''s time and according to him, had he not been assured by the appellants about the release of the car within the period, he would not have even chosen to deposit the balance price of the car. Aggrieved by the non delivery, he served a notice on the respondents and it was only thereafter that the car was released to him as late as on the 26th of December, 1990. However, he was then compelled to pay an extra amount of Rs. 5,858/- on account of the alleged price hike of the car on or around the third week of December, 1990. According to the complainant, had the appellants delivered the car to him on the date within a month of the payment of its price, he would not have had to pay the rise thereof enhanced late in December, 1990. Consequently, he claimed the relief of a refund of Rs. 5,855/- and also interest on the deposited amount of Rs. 1,06,970/- with further compensation for harassment etc.

In the written statement filed by the appellant the factum of the booking and the deposit and the intimation dated the 17th of October, 1990 was admitted alongwith the receipt of the full payment of the price on the 31st of October, 1990. The allegations of intentional delay in delivery of the car were denied and reliance was placed on the affidavit filed by the complainant whereby he had undertaken to pay price of the car as it prevailed on the date of the invoice. It was the plea that the appellants had not violated any clause of the agreement and consequently no financial liability could arise.

IN support of his case, the respondent Mohinder Partap stepped into the witness box and deposed on oath in corroboration of the complaint and the documents Annexure P.1 to R4 annexed thereto. He was cross-examined at some length without eliciting anything meaningful in favour of the appellants. In rebuttal, Maj. B.R. Sharma, Manager of the appellants concern appeared as R.W. 1. In his cross-examination he deposed that he could not tell how many cars were received by the appellants between June, 1990 to the 26th of December, 1990 but stated that the record was lying in his office which he could produce (at this very stage, it may be pointedly noticed that no such record was produced at all later even). He was further somewhat evasive on material issues on the ground that these were a matter of record but denied the suggestion that the delivery of the car was intentionally withheld till there was an enhancement of the price thereof.

THE District Forum in a remarkable exhaustive order adverted to all the evidence and materials before it. It came to the conclusion that the delivery of the vehicle was virtually withheld intentionally to take the advantage of the impending price hike and further observed as follows :- "xx xx xx xx xx In other words, the respondent (now the appellant), who was to rebut the presumption that turn, of the complainant for delivery of the car to him matured on 24.11.90 has miserably failed to rebut the same by not producing record available with him. An adverse inference can also be drawn against the respondent No. 1 that had it produced the record in the Forum that would have supported the case of the complainant that his turn for getting delivery of the car matured on 24.11.90 or at least much earlier than 26.12.90 when the, car had registered a price hike of Rs. 5,858/-".-

Consequently, it granted the relief of the refund of Rs. 5,858/- to the respondent with interest at the rate of 18% as also on the deposited amount and a further compensation of Rs. 2,000/- only. Mr. Hemant Kumar, the learned Counsel for the appellants faced with an uphill task at first argues that there was no express stipulation to deliver the vehicle even within one month of the payment of its price. It was argued somewhat tenuously that in this situation, delivery was in the discretion of the appellants. In the alternative, it was submitted that the vehicle was not delivered because the colour preference of the complainant respondent was not available with the appellants. Relying on Annexure R.1 to R.3, the stand was taken that the respondent has expressly or impliedly agreed to a delayed delivery even after the deposit of the full price of the vehicle. It bears repetition that the submissions in the case indeed and the merits thereof are identical with that in the previous one of M/s Modern Automobiles, G.T. Road, Ambala v. Abinashi Lal Narang of Gohana (supra). Therein, after a somewhat exhaustive discussion on principle and precedent and placing particular reliance on Section 32 of the Sale of Goods Act, 1930, it was recorded as under :- To conclude, the answer to the question posed at the very outset has to be rendered in the affirmative. It is held that an inordinate delay in the delivery of a car even after the full payment of the price thereof would be a deficiency in the service undertaken to be performed by the dealer or the manufacturer thereof. This is of course subject to the rule that the parties may expressly contract otherwise and the burden of establishing the exception lies somewhat heavily on the party pleading the same."

IN view of the aforesaid binding ratio, it is unnecessary to tread the same beaten ground afresh to meet the similar submissions made on behalf of the appellants. It has been held in I (1992) CPJ 127, S.D.O. A.E.E. City Division, Hissar v. M/s Hotel Palki, Hissar that the State Commission is bound by its own decisions on a question of law. This apart, indeed no adequate ground for deviation there from has been made out. The solitary factual question that remains is whether the parties had mutually contracted out against the rule that payment of price and delivery of goods are concurrent terms by virtue of Section 32 of the Sale of Goods Act.

IN the aforesaid context it seems somewhat plain that the respondent is at once on a very strong wicket. On the appellants'' own showing and vide their document Annexure R. 3, it was as early as the 17th of October, 1990 that they had themselves intimated the respondent that his vehicle was likely for release and delivery within one month and he was requested to make the requisite payment and submit the documents immediately enabling them to arrange the delivery thereof as early as possible. It is not in dispute that the respondent complied with reasonable promptitude and deposited the sizeable balance amount of more than Rs. One Lac on the 31st of October, 1990. Mr. Hemant Kumar Gupta, the learned Counsel for the appellants could not pinpoint anything substantial on the existing record which could indicate that the respondent had agreed or otherwise provided against the basic rule of the payment of price and delivery being the concurrent conditions. Some halfhearted attempt was made on behalf of the appellants to suggest that for reasons beyond their control, they were unable to delivery the complainant''s car immediately. This submission however, is totally devoid of any factual foundation. No such plea was even remotely taken in the somewhat detailed written statement filed on behalf of the appellants, in which many other defenses to the complaint were raised. The appellants had mainly harped on the plea that the respondent was obliged to pay the existing price of the vehicle on the date of the delivery. It is axiomatic that in the absence of any pleading, no evidence can be led or looked into on a specific issue. This apart, there is not even a in iota of evidence to show that there was any insurmountable hitch in making the delivery of the car to the complainant or after the 17th of November, 1990 when a period of one month would have expired, from the date of R. 3. Significantly, even in his examination in chief, Maj. B.R. Sharma (RW), the Manager of the appellants concern did not say a word as to why the delivery was delayed or that the colour preference of the respondent was not available and in any case, the later had refused to accept a vehicle of any other colour. IN his cross examination, though he undertook to produce the record. Somewhat, significantly this was never done and the District Forum was more than amply justified in drawing an inference against the appellants on that score. Once it is found as above, it would be somewhat clear that there was a patent delay of nearly two months in the delivery of the car even after the receipt of the full payment for which no adequate explanation appears on the record. In the absence of any agreement to the contrary, the rule in Section 32 of the Sale of Goods Act, has to be complied with. The District Forum finding that the delay in delivery had been probably done intentionally to extract an enhanced price from the complainant, is therefore, not devoid of plausibility. Consequently, there is patent deficiency in the service the appellants had undertaken to render and the District Forum in the consumer jurisdiction rightly awarded the relief and compensation therefore.

For the foregoing reasons, we affirm the order and dismiss the present appeal with costs which are assessed at a modest sum of Rs. 200/- only. The appellants should comply with the order of the District Forum alongwith the payment of costs within thirty days from today failing which compliance will be enforced under Section 27 of the Act as already recorded by the District Forum in its order. Appeal dismissed with costs.