APPEAL NO. 292 OF 2009

1. Randhir Singh, Prop. of Popular Car Bazar, SCO No.41, 1st Floor, Cabin No. 3, Sector 7-C, Chandigarh.

2. Arvinder Singh s/o Gurcharan Singh, r/o H.No. 142, Sector 26, Bapu Dham Colony, Chandigarh.
….Appellants.

Versus

Paramjit Singh son of Late Sh.Gurdial Singh, r/o H.No. 3555, Sector 35-D, Chandigarh.

….Respondent.

BEFORE: HON’BLE MR. JUSTICE PRITAM PAL, PRESIDENT.

MRS. NEENA SANDHU, MEMBER.

Present: Sh.K.K.Sharma, Advocate for appellant No.1.

Sh.Vivek Arora, Advocate for appellant No.2.

Sh.P.S.Batta, Advocate for the respondent along with Sh.Paramjit Singh, respondent/complainant in person.

MRS. NEENA SANDHU, MEMBER

1. This is an appeal filed by the OPs against order dated 8.4.2009 passed by District Consumer Disputes Redressal Forum-I, UT, Chandigarh (for short hereinafter to be referred as District Forum) passed in complaint case No. 1297 of 2008.

2. The brief facts of the case are that the complainant purchased a second hand Indica Diesel Car from OP No.1 for Rs.2,45,000/- bearing registration No. HP 33-A-4314 and the same was originally in the name of Sh.Gurmeet Singh of District Mandi. The complainant paid Rs.2,30,000/- to OP No.1 on 6.11.2006 in the presence of OP No. 2 who delivered the possession of the car to him and the balance amount of Rs.15,000/- and Rs.5000/- as the commission of the agent was agreed to be paid after delivery of NOC, which was supposed to be delivered after 30 days of the delivery of the car but OPs did not deliver the NOC, despite approaching many times. Due to the non delivery of the NOC, the complainant could not use the car and suffered physical and mental harassment. Hence, this complaint was filed.

3. Notice was issued to the OPs but OP No.1 refused to accept the summons and as refusal, the OP No.1 was proceeded against exparte. OP No.2 appeared through his counsel on 10.12.2008, 15.1.2009 and 12.2.2009 and sought time to file the reply as well as evidence but thereafter the counsel did not appear and OP No.2 was proceeded against exparte vide order dated 5.3.2009.

4. The complainant led evidence in support of his contention.

5. The District Forum allowed the complaint and direct the OPs to provide the NOC and R.C. with all other papers/forms/affidavit for its transfer to the complainant within 30 days from the date of receipt of copy of the order, failing which the OPs shall be liable to take the vehicle back and refund the whole amount i.e. Rs.2,30,000/- to the complainant along with interest @9% from the date of deposit i.e. 6.11.2006, till its payment to the complainant. It is further directed to the OPs to pay compensation of Rs.20,000/- to the complainant along with costs of litigation, which is quantified at Rs.5000/- which shall be paid within 30 days from the date of receipt of copy of the order, failing which the OPs would be liable to pay the entire amount due with interest @12% p.a. w.e.f the date of institution of the complaint i.e.4.11.2008 till its payment to the complainant.

6. Aggrieved by the order of District Forum, the present appeal has been filed by OPs. Sh.K.K.Sharma, Advocate has appeared on behalf of appellant No.1, Sh.Vivek Arora, Advocate has appeared on behalf of appellant No.2 and Sh.P.S.Batta, Advocate appeared on behalf of resondent/complainant along with Sh.Paramjit Singh, respondent/complainant in person. The main point for consideration before us is whether the non delivery of the NOC, RC and other documents tentamounts to deficiency in service on the part of OP.

7. In the grounds of appeal, the appellant has stated that due to the wrong date noted by the appellant, the learned District Forum had passed the exparte judgment on 8.4.2009 whereas the learned District Forum erred in observing that the reply has not been filed by the appellants. Photocopy of the dairy of the counsel showing the dates of the case is attached as Annexure B and the finding of the learned District Forum is incorrect and contrary to the facts. The learned District Forum has erred in observing that the respondent/complainant had never approached the appellants with the alleged request as was mentioned in the complaint and the learned District Forum has passed the order in favour of the respondent/complainant for such excessive amount with interest part is absolutely erroneous and is liable to be set aside. It is further submitted that the learned District Forum has erred in observing that the averments made by the respondent/complainant in the complaint were absolutely false, as such he filed a false complaint to somehow thwart the legal process. The learned District Forum has failed to appreciate the fact that the appellants had telephonically confirmed from the respondent regarding the receipt of the NOC and RC. Even the reply had not been filed by the appellants because the date was wrongly noted by the appellant and exparte order had been passed against the appellants, it is prayed that one opportunity may kindly be granted for filing reply to the complaint and the case may kindly be remanded back to the learned District Forum. It is further prayed that the complaint filed by the complainant is commercial in nature and did not fall within the scope, ambit and purview of the CPA and as such the same was liable to be rejected and the impugned order passed by the District Forum may kindly be set aside.

8. After hearing the learned counsel for the parties, perused the record and as per the contention made by the appellant that the complainant was not willing to accept the NOC and other documents. For the sake of arguments, if we agree with the contention made by the appellant that the complainant refused to accept the NOC, RC and other documents but on the other hand as it has been observed by us that even the appellant failed to produce the NOC, RC and other documents before the District Forum during the pendency of the case. Moreover neither a certified copy of NOC and RC were placed on file while filing the appeal or afterwards at the State Commission nor it has been produced before the executing court. At this stage we have come to the conclusion that if the appellant had a bona fide intention to give the NOC, RC and other documents to the complainant, ample opportunities have given to the appellant at the District Forum as well as State Commission. Not only this as the appellant failed to comply the order passed by the District Forum on 8.4.2009. The decree holder filed an execution application under Section 27 of CPA, 1986, the executing court passed an order for the sentence of imprisonment for one year and to a fine of Rs.10,000/- each. In default of payment of fine, they would suffer further imprisonment for a period of three months. Against this order, both the appellants have filed a revision petition on different dates, where no stay has been granted to both the appellants. Hence the deficiency in service is established beyond any doubt.

9. In view of the above mentioned facts and circumstances of the present case, we do not find any reason to differ with the view taken by the District Forum. Hence, we dismissed the appeal as devoid of merit and upheld the order passed by the District Forum without any order as to the cost.

10. Copies of this order be sent to the parties, free of cha