M.V.BHARTIYA vs COMPETENT AUTOMOBILES CO.PVT.LTD

BRIEFLY the facts are that the complainant booked a Maruti Gypsy with hard top on 1st June, 1990 with Competent Automobiles Company Pvt. Ltd., respondent No. 1. He deposited a sum of Rs. 36,500/- vide pay order dated 5th May, 1990. The City Bank, which was a financier, remitted the balance amount to respondent No. 1 on 28th May, 1990. Thus on 28th May, 1990 respondent No. 1 received an amount of Rs. 1,49,216/- towards the price of the gypsy. It is alleged that respondent No. 1 promised to deliver the vehicle within a period of 12 weeks. Besides the above said amount respondent No. 1 charged from him an amount of Rs. 3,410/- in cash vide receipt No. 11375 dated 5th May, 1990 without disclosing the purpose of the amount. The claimant also paid an amount of Rs. 375/- to respondent No. 1 without any receipt. He also paid a sum of Rs. 9,985.59 on 13th November, 1990.

IT is pleaded that M/s. Maruti Udyog Ltd., respondent No. 2 in order to cheat him did not deliver the vehicle to the complainant within a period of 12 weeks as promised by respondent No. 1. IT is alleged that the complainant was made to pay sum of rupees 1,68,747.59 towards the sale of the vehicle without giving any reason as to why respondent No. 1 was charging the said amount when the price of the vehicle at the time of actual delivery was Rs. 1,30,000/-. The vehicle was ultimately delivered to the complainant on 10th December, 1990. It is prayed that the commission be pleaded to grant him Rs. 1,25,000/- which amount includes the difference in the price of the Gypsy, damages for misbehaviour and harassment and general damages.

The complaint was contested by both the respondent. Respondent No. 1 in their written statement pleaded that immediately on receipt of the vehicle respondent No. 1 sent a telegram dated 13th November ''90 to the complainant informing him that the vehicle had been received and requesting him to collect the same. He did not take the delivery under one pretext or the other and finally took its delivery on 10.12.90. The delivery of the vehicle was given by respondent No. 2 according to the priority in booking. The entire consideration was received by respondent No. 1 on 1.6.90 and it was sent to respondent No. 2 on 2.6.90. They denied that any promise was made by them to supply the vehicle within 12 weeks. It is further pleaded that according to the agreement the price payable by the customer was the price applicable at the date of delivery of the vehicle. They denied that any amount was taken by them from the complainant wrongly or without receipt.

M/s. Maruti Udyog Ltd. respondent No. 2, in their written statement said that it was indicated to the complainant that the price prevalent at the time of the delivery was applicable. Even in printed receipt dated 13.11.90 issued by respondent No. 1 to the complainant it was indicated that the price prevailing on the date of invoice will apply. In the present case, it is pleaded that the price of the vehicle was increased w.e.f. 22.8.90 on account on increase in the Central duty from 40 to 50% ad valorem and the complainant was liable to pay the enhanced price as per provisions of the Sales of Goods Act and also as per the terms and conditions of the contract. They further pleaded that it was not possible to indicate the precise period within which delivery could be given as it was possible that the rate of production might not be maintained on account of difficulties like imported material not available, delay in the fabrication of hand top etc. A sum of Rs. 9,985.59 was charged from the complainant on account of increase in the central excise duty from 40% to 50% ad valorem which came into force w.e.f. 22.8.90. It is alleged that the delay in delivery of the vehicle was on account of the reasons beyond the control of respondent No. 2. One of the major causes for delay was non- availability of the seats. It is further alleged that respondent No. 2 for the delay in delivery of the car paid interest at the rate of 12% per annum for the period from 11.6.90 to 10.11.90 amounting to Rs. 6,187.16 in terms of company''s policy. Thus the complainant has been compensated for delay in delivery of the vehicle.

IT is next pleaded that the price of the vehicle at the time when the complainant booked and deposited the amount with respondent No. 1 was Rs. 1,49,261/- and not Rs. 1,30,000/- as alleged by the complainant. IT is also pleaded that time was not the essence of the contract. The first question that arises for the determination is, whether the vehicle was delivered to the complainant on the due date taking into consideration the dates of placing the orders. Respondent No. 2 has attached the synopsis of the invoices for direct sales in a consolidated form. From the perusal of the synopsis we are satisfied that the complainant was delivered the vehicle at his turn. The learned Counsel for the complainant pointed out that in two cases the persons who booked vehicles at a later date had been delivered the same prior to those who had booked them on earlier dates. We have been informed by the respondent that in these cases the delivery was given earlier on account of colour choice. It may be mentioned that the complainant had given preference of white colour Gypsy which was in great demand. The explanation of the respondents Counsel is plausible and we accept the same. The next question that arises for the determination is whether time was the essence of the contract in the present case. Respondent No. 1 produced a vehicle order form filled in by the complainant. It is stated therein that in case of any price change between the date of order and the time of invoicing, he would pay the price differential apart from any extra expenses incurred by the respondent on his behalf. It is further stated that he was aware that the delivery of the vehicle would be made in the order and sequence of priority as per the waiting list maintained by them and that it was implied that the Maruti Udyog Ltd., rules in that context would prevail. From the reading of the above conditions it is evident that no specific date was given by the complainant for delivery of the vehicle. On the other hand he agreed to take delivery of the same in order of priority as per waiting list. He, at the time of taking delivery of the vehicle, did not make any protest that the time was the essence of the contract and the vehicle was being delivered late to him. On the other hand he accepted the delivery of the vehicle after making the payment. It is also relevant to point out that it was not mentioned by the complainant that the vehicle was being purchased by him for the purpose of commerce. Thus the only inference that can be drawn is that he purchased it for his personal use. Section 55 of the Contract Act deals with such contracts. The Section reads as follows : - "When a party to a contract promises to do a certain things at or before a specified time, or certain things at or before specified times, and fails to do any such thing at or before the specified time, the contract, or so much of it as has not been performed, becomes voidable at the option of the promisee. If the intention of the parties was that time should be of the essence of the contract."

IN view of the above section it is to be seen whether the intention of the complainant at the time of purchasing the vehicle was that the time would be the essence of the contract. We have already referred to the vehicle booking order form from which it is clear that time was not intended to be the essence of the contract. However, the letter of the respondent dated 15.11.90 shows that there was some understanding that the vehicle would be supplied within a period of 12 weeks. Unless the terms of the contract clearly state so mere understanding will not make time essence of the contract. The subsequent contract of the complainant further shows that he never treated time as the essence of the contract. The complainant, as already mentioned had not accepted the vehicle under protest, so under clause 3 of Section 55 he cannot now claim that time was of the essence of the contract.

A similar matter came up before the Division Bench of J & K High Court in Hitkari Motors v. Attar Singh, AIR 1962 J & K 10. It was observed therein that in Mercantile Contracts where once a particular time is specified, the presumption is that time is the essence of the contract unless a contrary intention appears from the terms of the contract and other surrounding circumstances. However, in cases other than commercial contracts the ordinary presumption is that time is not of the essence of the contract. The contract in the present case is not a commercial contract. If the ratio in the above case is applied, it cannot be held, that time in this case can be presumed to this case, to be of the essence of the contract. Now the question that arises for determination is whether the respondent can charge price of the vehicle which prevailed at the date of the invoice. It is alleged by the respondent that the complainant was informed that the vehicle would be delivered to him at the price prevailing at the date of invoice. The above said plea finds support from the vehicle order form dated 5.5.90 signed and handed over by the complainant to respondent No. 1 and receipt No. 12778 dated 13.11.90 issued by respondent No. 1 to the complainant for Rs. 9,985.59. It may also be mentioned that the increase in price has been claimed by the respondent on account of enhancement in excise duty. It is provided in Section 65-A of the Sales of Goods Act that the seller is entitled to charge increase in excise duty from the purchaser, in case the goods were agreed to be sold prior to the date of increase in excise duty and sold subsequent thereto. It may also be mentioned that the complainant has been paid the interest of the amount deposited by him with the respondents, at the rate of 12% per annum.

Taking into consideration all the aforesaid circumstances we do not find any merit in the complaint and dismiss the same with costs. Costs Rs. 1,000/-. Complaint dismissed with costs.