Mrs. Kumudini Chandrakant Pethkar

583 B/3, Shaniwar Peht,

PUNE – 411 030 … COMPLAINANT



- : VERSUS : -



Kirti Auto Engineers

Through Shri. Wayal Lahukumar Namdeo

R/at – Torna Bangla,

Shri Vitthal Nagar, Sinhgad Road,

PUNE – 411 051 … OPPONENT


[2] The complainant wanted to dispose of her old Ford Tractor. She also wanted to purchase a new Tractor in exchange. She therefore approached the opponent on 2/10/2006. The negotiation between the parties took place. The complainant had agreed to purchase new Tractor of HMT make bearing number 4022 and a Trailer KO from the opponent. The opponent had agreed to purchase the old Tractor from the complainant. The purchase price thereof was fixed at Rs. 3,45,000/-. Out of which the complainant paid an amount of

Rs. 3,40,000/- by cross A/C payee cheque. The Tractor and Trailer were received by the complainant. So also the old Tractor was collected by the opponent.

[3] 2nd October was eventually an auspicious day. The complainant had assured the opponent that she would perform Pooja of new Tractor and Trailer and shall return the same to the opponent for the purpose of registration and the insurance. Believing on her, the opponent allowed the complainant to collect the delivery of new Tractor. It was also agreed that the balance amount of Rs. 5000/- shall be paid at the time of registration and at the time of taking insurance.

[4] In the mean while the complainant had called upon the opponent to complete the formalities of registration. The opponent gave an empty assurances. On 8/3/2007, certain Officers and the staff from the opponent visited the complainant’s residential premises. On the pretext of completing the registration formalities, the signatures of the complainant were obtained on certain prescribed forms. They had assured the complainant that the Tractor and Trailer would be returned to the complainant at about evening time on the same date.

[5] The complainant waited for reasonable time. She wanted to lodge a complaint in the Police Station. She was asked to go from one Police Station to other. The complaint was eventually registered by Parvati Police Station and the statements of the complainant and that of the opponent were recorded. On 9/3/2007, the complainant learnt that the new Tractor was not recorded in the name of the complainant in the records of the RTO. The statements of the parties were recorded on 16/3/2007. The complainant therefore prayed that, although she has paid the entire price of the vehicle, the opponent has illegally and unauthorisedly withheld the delivery of the Tractor and the Trailer. The complainant is not in a position to use the old and new Tractor. Both of them are in the custody of the opponent. She has computed compensation @ of Rs. 1000/- per day. She therefore prays that the aforesaid relief be granted to her.

[6] The opponent has appeared and has filed its written statement. Virtually the entire transaction as such is not disputed by the opponent. It is admitted that the complainant had sold her old Tractor to the opponent. The necessary documents such as RC and TC forms had not been given to the opponent. Similarly, it is contended that both the transactions are independent and separate. The price of the Tractor and Trailer was Rs. 5,08,000/-.

On deducting an amount of Rs. 3,40,000/-, the complainant is still liable to pay an amount of Rs. 1,68,000/- to the opponent. The payment was demanded from time to time. The complainant has avoided to make payment. At the same time, it is pleaded that the opponent had demanded the case papers of the old Tractor from the complainant. They were not furnished by the complainant. There are two admissions in the reply of the opponent. It is admitted that on the payment of entire consideration, the new Tractor and Trailer was to be delivered to the complainant. The other admission is that the complainant may collect the delivery of her old Tractor, if she so chooses. The opponent is ready to handover custody of the old Tractor to the complainant.

[7] We have heard both the learned Advocates, who appeared before the Forum from time to time. Before the complaint was matured for hearing, the complainant had filed a rejoinder. Besides that, she had also filed an application for carrying out the suitable amendments. She had also filed the written notes of argument. As against that the opponent has also filed certain reply or sur-rejoinder to the rejoinder of the complainant. By and large similar contentions have been raised in the subsequent pleadings. We shall refer to them only when they are relevant for our purpose.

[8] During the course of the argument, it was transpired that the complainant had failed to introduce an alternate plea. The relief of refund of consideration amount of Rs. 3,40,000/- was not claimed by the complainant. Similarly, the complainant had failed to introduce the relief for the possession of her old Tractor, which is in the custody of the opponent. For the foresaid rectification, the complainant had filed an application for amendment. Even after conclusion of the entire arguments and the case was posted for passing Judgment and application for amendment was filed by the complainant today.

[9] As far as alternative reliefs are concerned, we find that the said alternative relief, irrespective of fact that the same had not been claimed, can be awarded to the complainant. The same can be done to meet the ends of justice and to prevent the multiplicity of the proceedings. Earlier the opponent had already filed the reply to the application of the amendment. Thus no prejudice shall be caused to the parties if the relief claimed by the complainant are molded to serve the interest of justice. A formality for the aforesaid purpose shall not be necessary. The said position was explained to both the sides today.

[10] The grievance of the complainant is that she had paid entire consideration, but she is deprived of using the new Tractor right from 8/3/2007 onwards. It is common ground that, possession of new Tractor was taken on 2/10/2006. It was in the custody of the complainant till 8/3/2007. She had used the said Tractor for about five months. Till then the necessary registration and insurance was not taken. Section 39 of the Motor Vehicle Act, 1988 provides that no persons shall drive any motor vehicle in any public place, unless the vehicle is registered in accordance with the provisions of Chapter IV of the said Act.

This would indicate that the new Tractor was used by the complainant for the period exceeding five months without there being registration. Similarly, that would also indicate that the entire payment was not made by the complainant till then. There are different versions regarding the incident dtd. 8/3/2007. The complainant alleges that the custody of the new Tractor was taken by the opponent on the pretext of registration. On the other hand the opponent submits that the relevant papers of the old Tractor were not furnished by the complainant and that the payment of Rs. 1,68,000/- was still payable by the complainant, therefore delivery of Tractor and Trailer was taken. In any case the fact remains that the Tractor is in the possession of the opponent after 8/3/2007.

[11] Then, there are certain other developments that can be seen in the subsequent pleadings. The opponent has also filed written notes of argument. Alongwith the same, he has filed the extract issued by the office of RTO in respect of the old Tractor. The same provides that the olf Tractor is in the name of Shri. B. M. Sonawane and the said Shri. Sonawane appears to have borrowed loan from Maharashtra State Land Development Co. Op. Bank Ltd.

This was contradicted by the complainant by filing affidavit of Shri. Sonawane. It is not necessary to refer to the contents of the affidavit of said Shri. Sonawane. Suffice it to bear in mind that the old Tractor was sold by Shri. Sonawane to the complainant in the month of April 2006 for amount of Rs. 1,00,000/-. He also makes statement on oath that the entire loan borrowed by him from that Co-op. bank had been repaid. No Dues Certificate issued by the bank is also relied upon by Shri. Sonawane.

[12] The question that would arise for our determination is, whether the exchange of old Tractor with the new Tractor and Trailer were one and the same transaction. The opponent has contended that these two transactions are distinct and separate. The price of the new Tractor was fixed and out of which an amount of Rs. 1,68,000/- is still due by the complainant. As against that, it appears that the contention of the complainant is that the transaction is one and the same. The old Tractor was probably sold by the complainant to the opponent at price of Rs. 1,63,000/- or about. This does not appear to be probable. It is for the simple reason that the transaction in question is of 1981 model. In the zerox copy obtained by the opponent from the RTO shows that the old Tractor was of 10/3/1981 model. The same was used by the former owner till April 2006. It was then sold to the complainant for an amount of Rs. 1,00,000/-.

The same is alleged to have been sold to the opponent for amount of Rs. 1,63,000/-. We find that discrepancy is apparent on the face of the record. It is highly probable that after using the old Tractor, from the month of April 2006 onwards till Oct. 2006, the price of the Tractor would be revised or increased from Rs. 1,00,000/- to 1,63,000/-. We therefore find that demand made by the opponent is plausible. The complainant appears to have withheld the relevant case papers of the old Tractor and that can be very well seen from the certificate issued by the RTO. If old Tractor was not in the name of the complainant, she shall not be a competent person to transfer the same to the opponent.

[13] It is in that context, we find that it is quite possible that the transaction is distinct and separate. Then the part, which was required to be complied with by the complainant of showing the necessary case papers of the old Tractor and to pay the balance amount of Rs. 5,000/- or Rs. 1,68,000/- as the case may be, was not complied with by the complainant. It is therefore not possible for us to grant the relief claimed by the complainant. She is not allowed to take benefit from her own wrong. Under such circumstances what we find from the record and from the attendant circumstances of the case is that an alternative relief will have to be awarded to the complainant. The same is not being introduced by the complainant in as much as no formal order had been passed on that application and that complaint is not yet suitably amended. Having regard to the categorical admission given by the opponent, we find it expedite in the interest of justice to award an alternative relief.

[14] There is no question of granting the past interest to the complainant. At the same time the complainant has to collect the old Tractor from the opponent on as is where is basis. We therefore proceed to pass the following order.

** O R D E R **

1. The complaint is hereby allowed in part.

2. The opponent is hereby directed to handover

the vacant and peaceful possession of the old

Ford Tractor No. 3600 to the complainant within

two months from the date of receipt of this order.

3. The opponent do pay an amount of Rs. 3,40,000/-

(Rs. Three Lac Forty Thousand only) to the

complainant, within two months from the date

of receipt of this order by the opponent.

4. All the other reliefs claimed by the complainant for

compensation, past and future interest are hereby rejected.