w w w . L a w y e r S e r v i c e s . i n



EMCIPI Electronics Pvt. Ltd. Through Its Director Sh. R.K. Singh v/s M/S. Shreyans Motors (P) Ltd., Through Its Director/Managing Director & Another

    Consumer Case No. 153 of 2012

    Decided On, 03 March 2020

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. PREM NARAIN
    By, PRESIDING MEMBER

    For the Complainant: A M. Dar, Advocate. For the Opposite Parties: Already ex parte.



Judgment Text


1. This consumer complaint has been filed by the complainant Emcipi Electronics Ltd. Against the opposite parties M/s Shreyans Motors Ltd. and another.

2. Brief facts of the case are that the complainant is a private limited company duly registered with the Registrar of the companies. Opposite party no. 1 is the dealer and agent of sale of car and opposite party no. 2 is the authorized signatory and incharge of the sale of the car named ‘PORSCHE’. Complainant approached the opposite party’s show room and desired to purchase the car named ‘Porsche Panamera’ diesel and therefore, opposite party on 19.01.2012 offered to sell the said car for the sale price of Rs. 1,32,98,007.33/-. On 25.01.2012, the opposite party issued proforma invoice no. C00829 order no. VSO 00084 dated 25.01.2012 for the sale of the car and upon relying on the assurance of the opposite party, the complainant paid a sum of Rs. 13,32,958/- as the booking amount to the opposite party. Opposite party vide letter dated 28.01.2012 issued vehicle identification no. WPOZAC 977 CL024224 Engine No. CRCC-041316 and requested the complainant to make 100% payment of the car. Thereafter, the complainant paid a sum of Rs. 1,19,65,050/- DD No. 611626 dated 28.01.2012 to the opposite party and the receipt for this amount was issued on 30.01.2012. Complainant on various occasions contacted opposite party for the delivery of the car as 100% amount of the car was already paid. Complainant served legal notice dated 18.05.2012 to the opposite party for the non-delivery of the car after 100% payment but no positive action was taken by them. Hence, the complainant filed the complaint before this commission with the following prayer :-

I. “To remove the deficiency in the services i.e. to deliver the said car i.e. PORSCHE PANAMERA DIESEL which was booked vide customer no. C00829 order no. VSO 00084 dated 25.01.2012 to the complainant with further directions to pay the following amount as compensation.

II. To pay the due interest @ 24% p.a. w.e.f. 25.01.2012 to till the date of payment.

III. To pay Rs. 10,00,000/- being the loss caused to the reputation as well as the defamation to the complainant.

IV. To pay Rs. 15,00,000/- towards the loss and damages suffered by the complainant due to mental tension and harassment caused by the respondents.

V. To pay Rs. 5,00,000/- being the cost of litigation to the complainant.”

3. During the pendency of the said complaint, the opposite party refunded an amount of Rs.13,32,958/- vide DD no. 154511 dated 10.06.2014 drawn on Kotak Bank, which was accepted by the complainant under protest.

4. The complaint has been resisted by the opposite parties by filing the written statement. It has been stated by the opposite parties that as per the sales contract executed between the complainant and the opposite party no. 1, all the disputes pertaining to the matter are subject to Mumbai jurisdiction only and thus this commission has no jurisdiction to entertain the present complaint. The opposite parties have alleged that the complainant is a company registered under the Companies Act 1956 which was acquiring the vehicle for the commercial purpose and thus, does not fall under the category of “Consumer”. It has been further stated that since the consumer is not an individual and is a company, the explanation attached to Section 2 (1) (d) of the Consumer Protection Act, 1986 relating to earning livelihood is not applicable in the present case. It has been also stated that the disputes raised in the present complaint are complicated in nature and are to be adjudicated only by a civil court. Hence, the complaint is liable to be dismissed with exemplary costs.

5. After filing the written statement and evidence in the matter by way of affidavit, the opposite parties did not appear. Evidence has been filed by the complainant by way of affidavit. The opposite parties were proceeded ex-parte vide order dated 22.08.2016 of this commission.

6. The learned counsel for the complainant stated that a company is a consumer as held by the Hon’ble Supreme Court in Karnataka Power Transmission Corporation and Anr. Vs. Ashok Iron Works Private Limited, (2009) 3 SCC 240, wherein the following has been observed:-

“18. Section 2(1)(m), is beyond all questions, an interpretation clause, and must have been intended by the Legislature to be taken into account in construing the expression “person” as it occurs in Section 2(1)(d). While defining “person” in Section 2(1)(m), the legislature never intended to exclude a juristic person like company. As a matter of fact, the four categories by way of enumeration mentioned therein is indicative, Categories (i), (ii) & (iv) being unincorporate and Category (iii) corporate, of its intention to include body corporate as well as body un-incorporate. The definition of “person” in Section 2(1)(m) is inclusive and not exhaustive. It does not appear to us to admit of any doubt that 11company is a person within the meaning of Section 2(1)(d) read with Section 2(1)(m) and we hold accordingly.”

7. Learned counsel for the complainant stated that the allegation that Mumbai Court has only the jurisdiction to decide the present case is not valid as the system of jurisdiction under the Consumer Protection Act, 1986 will be applicable in the present case and it is only the National Commission which has the jurisdiction to entertain a complaint involving more than Rs.1 crore as consideration. It has been further stated that the dealership of the opposite parties has already been cancelled by M/s PORSCHE w.e.f. 01.04.2012. The opposite parties have not paid the value of the car deposited by the complainant to the manufacturer. Hence, the opposite parties have committed deficiency in service with the malafide intention to grab and misappropriate the amount deposited by the complainant.

8. The opposite parties in their written statement have stated that the main dispute in the matter is with regard to delivery of the said car which could not be delivered to the complainant on account of certain dispute which arose between M/s Shreyans Motors Ltd (opposite party no. 1) and Porsche Middle East and Africa FZE i.e. the manufacturers of Porsche cars and was pending before the Hon’ble Supreme Court.

9. The opposite parties have stated in their evidence by way of affidavit that ICICI Bank had advanced a loan to complainant for purchase of this car. Against the loan amount of Rs.1,19,65,050/- paid by the complainant, OP1 has refunded an amount of Rs.1,25,00,000/- by way of demand draft drawn on Kotak Bank in the ICICI Bank loan account. ICICI Bank has further refunded an amount of Rs. 23,34,100/- to the complainant in its Bank A/C on account of EMI’s/interest paid by the complainant to ICICI Bank.

10. I have carefully considered the arguments advanced by the learned counsel for the complainant and have examined the material on record. It has been pleaded by the opposite parties that the complainant is not a consumer as the complainant is a private limited company and the car was being purchased for use of the company i.e. for commercial purpose. Clearly in the light of the decision of the Hon’ble Supreme Court in Karnataka Power Transmission Corporation and Anr. Vs. Ashok Iron Works Private Limited, (supra), a company can be a consumer under the purview of the Consumer Protection Act, 1986. No evidence has been given that the vehicle was being purchased for the commercial use of the company. Merely by the fact that a company was purchasing a costly car, it cannot be said that the company was purchasing this car for commercial use. It is also likely that the company might be purchasing this car for the use of its director, which may not constitute a commercial purpose as held by this Commission in the judgment of a larger Bench of this Commission passed in CC No.51 of 2006, Crompton Greaves Limited & Anr. Vs. Daimler Chrysler India Private Limited & Ors., decided on 08.7.2016 (NC), wherein it has been held:-

“11. For the reasons stated hereinabove, the issue referred to the larger Bench is answered as follows:-

(a) If a car or any other goods are obtained or any services are hired or availed by a company for the use/personal use of its directors or employees, such a transaction does not amount to purchase of goods or hiring or availing of services for a commercial purpose, irrespective of whether the goods or services are used solely for the personal purposes of the directors or employees of the company or they are used primarily for the use of the directors or employees of the company and incidentally for the purposes of the company.

(b) The purchase of a car or any other goods or hiring or availing of services by a company for the purposes of the company amount to purchase for a commercial purpose, even if such a car or other goods or such services are incidentally used by the directors or employees of the company for their personal purposes.”

11. When no evidence has been filed to prove that the car was being purchased for commercial use by the company, the benefit of doubt is to be given to the complainant and the complainant company could be treated as consumer within the purview of the Consumer Protection Act, 1986 in the present case.

12. It is clear that when there is a dispute going on before Hon’ble Supreme Court between M/s Shreyans Motors Ltd (opposite party no. 1) and Porsche Middle East and Africa FZE i.e. the manufacturers of Porsche cars from whom the said vehicle was to be sourced to be delivered to the complainant, the opposite party is not in a position to supply the said car now. Moreover, the booking amount was already refunded on 10.06.2014, hence the booking would be treated as cancelled from that date. From the written statement and the evidence affidavit of the opposite parties, it is evident that the booking amount of Rs.13,32,958/- has been refunded to the complainant on 10.6.2014. The amount of Rs.1,19,65,050/- was paid by the complainant by obtaining loan from ICICI Bank. The OP-1 has refunded an amount of Rs.1,25,00,000/- and closed the loan. The EMIs/interest paid by the complainant to ICICI Bank has been returned back to the complainant to the tune of Rs.23,34,100/-. These assertions have not been denied by the complainant in its written arguments. Thus, all the amounts paid to the opposite parties seem to have been refunded by the opposite parties.

13. The statement of account of loan submitted by the opposite parties shows the status of the loan account as “cancelled” as the amount of Rs.1,25,00,000/- has been refunded by the opposite parties to the ICIC

Please Login To View The Full Judgment!

I Bank. In these circumstances, the booking already stands cancelled and the prayer in the complaint for delivery of the car cannot be accepted. In fact, it is only the amount of Rs.13,32,958/- which remained with the opposite parties from 25.01.2012 to 10.06.2014 and the complainant is entitled for interest on this amount. 14. It is seen that the opposite parties did not deliver the said car despite full payment and therefore, the opposite parties are held guilty for deficiency in service on their part. Hence, the complainant is entitled to an the interest @ 9% p.a. on the amount of Rs.13,32,958/- from 25.01.2012 to 10.06.2014. Further, the complainant is also entitled to a compensation of Rs.1,00,000/- (Rupees one Lakh only) due to deficiency in service on the part of the opposite parties. 15. Based on the above discussion, the complaint is disposed of with the following directions to the opposite parties:- (i) to pay to the complainant interest @9% per annum on Rs.13,32,958/- from 25.01.2012 to 10.06.2014. (ii) to pay a compensation of Rs.1,00,000 (one lakh only) to the complainant for deficiency in service on the part of the opposite parties.
O R