Through this complaint, the complainant prays for an order against the Opposite Parties (hereinafter called as the OPs for short) to pay a sum of Rs.2,00,000/- with interest at 12% from the date of petition till the date of realisation towards damages caused by the OP for non-delivery of vehicle.
The facts given rise to institute the complaint may be summarized as thus:
It is contended that, on 13-9-2007 the complainant got issued a legal notice to Akshaya Motors Service, the Manager of HDFC bank and also to one Syed Sadiq, GMY Motors, NH 206, BH Road, Gubbi who claimed to be a sub-agent under Akshaya Motors Service, alleging their deficiency in service in not releasing a loan in his name from the HDFC bank to purchase a two wheeler vehicle (Bajaj discovery). Consequently no vehicle came to be released. Thus, he claimed compensation as stated above.
Initially, the complainant had filed his complaint only against the 1st OP. However, after the objections of the 1st OP, he got impleaded 2nd and 3rd OP by way of amendment.
Among the OPs who have been notified of the complaint, the OPs No.1 to 2 put in their appearance through their counsel and resisted the same.
The learned counsel appearing for the complainant filed a memo and submitted that the complaint as against the 3rd is not pressed. Hence, the complaint as against him came to be dismissed as not pressed.
The gist of the objections of the 1st OP is as follows:
This OP while emphatically denying the complaint averments as false and untenable inter-alia pleaded that, this complaint is filed by suppressing the real facts. It is claimed that, the complainant never approached this OP for purchase of the two wheeler vehicle.
It is claimed that, in the legal notice, the complainant made allegations regarding deficiency in service as against the manager of HDFC bank and one Syed Sadiq, G.M.Y. Motors, Gubbi. Thus it is contended that, this OP is no way concerned with the alleged transaction or understanding between them.
In the objections filed by the 2nd OP, it is contended that, the complainant has availed loan from this OP bank for purchase of two wheeler vehicle. As per the terms and conditions contained in the agreement of the bank, the bank has disbursed the loan amount to the dealer.
It is further contended that, this OP is not responsible for the delivery of the vehicle. There is no privity of contract between the bank and the dealer about the delivery of the vehicle. The complainant should have filed a complaint against the dealer and not against this OP and this OP has not committed any deficiency of service. Accordingly, he prays for dismissal of the complaint.
In support of the case, the complainant and the 1st OP have filed their affidavits and the complainant has filed pressed in to service of several documents. When it was set down for further arguments the complainant filed an application under Order 9 Rule 4 of CPC to set-aside the dismissal order passed against the OP No.3. This application came to be opposed by the contesting OPs. Thereafter, the complainant filed a memo seeking permission to withdraw the case with permission to file a fresh one on the same cause of action, claiming that there are many technical defects in the complaint.
The learned counsel appearing for the complainant placing reliance on a decision reported in III (1992) CPJ 52 (NC) has urged that when there are serious defects crept in the complaint it is just and proper to withdraw the case reserving the liberty of filing a fresh one. In the said decision it is observed thus:
“Consumer protection Act, 1986 – Section 2 (1) (e) – complaint – permission to withdraw – complaint filed – serious errors crept into – permission to withdraw with liberty to file fresh petition sought – permission granted”.
“Counsel appearing for the complainant-petitioner states that some serious errors and omissions have crept into the original petition that has been filed and hence, he may be permitted to withdraw the said petition, liberty being reserved to him to file a fresh petition in respect of the identical subject matter with all complete and correct averments. We grant this request and dismiss the original petition as withdrawn making it clear that the said dismissal will not preclude the complainant from brining a fresh petition in respect of the identical subject-matter. In passing this order, we are not to be understood as expressing any forward by the complainant in the complaint petition is one that can be legitimately agitated before the consumer forums”.
When the complainant has urged that, there are serious technical defects in the complaint in all fairness it is just and proper to permit him to withdraw the case with a liberty to file a fresh one. Accordingly it is ordered.