ORDER
C.M. Nayar, J. (Chairman)
1. The present application has been filed against the respondents under Section 1213 of the Monopolies and Restrictive Trade Practices Act, 1969 (hereinafter referred to as the Act). The applicant booked a Maruti Omni (Van) on 2nd February, 1994 and paid a sum of Rs. 1,53,750/- vide Demand Draft No. 009161. It is alleged that the applicant was assured that the vehicle would be delivered in six weeks’ time but the same was not delivered till May 12, 1994. In the meanwhile the price of the vehicle was increased from April 1, 1994 and consequently the applicant was asked to pay an additional sum of Rs. 7,630.79 which is the subject matter of challenge in the present proceeding. The applicant has claimed the following amounts :
2. The respondents have filed their respective reply affidavits. Respondent No. 2 has stated that the applicant was informed of the terms and conditions of the sale at the time of booking and it was specifically stated that the vehicle would be delivered strictly in the order of receipt of customer’s payment and subject to production and supply of vehicles from Maruti Udyog Limited, respondent No. 1. It was also stipulated that one of the terms and conditions of the sale was that the prices prevailing at the time of delivery of vehicle would be applicable and that the delivery of all the vehicles in choice of colour will depend upon production and availability at the time of delivery. The applicant had given choice of only one colour i.e. Neptune Blue and, therefore, there was a delay in delivering the vehicle. The applicant alternatively offered white colour vehicle on 12.4.1994, 18.4.1994, 2.5.1994, 6.5.1994 and 9.5.1994 respectively. He insisted only for Neptune Blue colour and agreed to wait for the said colour and the respondent was not able to deliver the said vehicle prior to 12.5.1994. The respondent No. 1 has also filed an affidavit in reply wherein the averments as made by the applicant are denied and the contents of the affidavit filed by respondent No. 2 are reiterated.
3. The matter was sent for trial and the following issues were framed on 7.2.1996 :
(1) Whether the respondents had indulged in the unfair trade practices as alleged in the compensation application ?
(2) Whether the applicant has suffered any loss and/or injury as a consequence of alleged unfair trade practices ?
(3) If so, relief.
4. We have heard learned Counsels for the parties. The main submission of the applicant is that he had booked the vehicle on 2.2.1994 and the respondent No. 2 was expected to deliver the same within six weeks but the same was however, delivered on 12.5.1994 and in the meanwhile the Excise Duty was raised w.e.f. 1.4.1994 i.e. prior to the date of the delivery. The reliance is placed on the judgment of the Supreme Court reported as II (1999) CPJ 44 (SC) in the matter of Vikas Motors Ltd. v. Dr. P.K. Jain. We may refer to paragraphs 5 and 6 of this judgment giving details of facts and findings recorded by the Court:
5. It is also not disputed that the respondent had paid and the appellant had received an amount of Rs. 35,000/-towards booking of one C.A. 805-C/80197 Maruti car. He was, later on, intimated by the appellant vide letter Annexure A that:
“We are pleased to inform you that based on intimation received from Maruti Udyog Limited, all customer orders placed with us till, COD have matured for payment deposit and delivery. Your F.D.R. deposited with us on (date of deposit of F.D.R.).
Delivery of vehicle will be made according to the date of receipt of full payment. You are, therefore, requested to deposit full payment with us, as early as possible. In the normal course, your vehicle is expected to be delivered immediately on receipt of your payment. However, due to unforeseen circumstances, the delivery may get delayed by a few days.”
It is also conceded that as desired the balance amount was paid by the appellant on 6.8.1990 but the vehicle was not delivered to him till 25.8.1990. There being no failure on the part of the respondent to perform his part of the contract, the appellant was not justified in demanding the excess amount of Rs. 9,232/- from him. The submission regarding cutoff date for delivery of vehicle, as mentioned in a letter of Maruti Udyog Ltd., dated 5.7.1990, does not in any way advance or strengthen the case of the appellant because it did not cast any obligation upon the respondent to ascertain its contents and pay the extra amount despite deposit of the full amount within the time prescribed and, admittedly, before the escalation of price by way of rise in excise duty. The appellant, if aggrieved, can have his grievance redressed against the manufacturer but cannot force the respondent to pay the extra amount after receipt of the full and final payment as price of the car which was agreed to be delivered to him immediately after the receipt of the full amount. It is not disputed that the cut-off date of the instant case was 6.8,1990, admittedly before the rise of the prices of the Maruti cars. The District-Forum was, therefore, justified in directing the appellant to refund the extra amount to the complainant within the time specified in its order. The State Commission, after referring to the facts of the case, rightly concluded :
“It is then a matter of record that in compliance with the above, the respondent paid the balance price on the 6th of August, 1990 and completed the other requisites formalities, as well. Far from giving the respondent the delivery of the car forthwith against full payment as promised. It was not till nearly a month thereafter that on the 3rd of the September, 1990 that the same was offered to him conditional on his paying the further amount of enhanced price. The appellant’s negligence is thus writ large on the face of the record in the context of the complainant’s clear assertions that despite telephonic and personal reminders, the needful was not done by the appellants. On their own showing and assurance the car was to be delivered immediately on receipt of the full payment and the only qualifying clause was if some unforeseen circumstance may happen to delay the delivery and that also was not to be extended beyond a few days. In the present case the appellants even in their counter-version did not even allege that there was any unforeseen circumstance which had prevented them from making delivery of the car which they were bound to do. This apart not an iota of evidence was led on their behalf to show any unforeseen or extenuating circumstance for a delay of nearly one month. Even otherwise because the ground of unforeseen circumstance was not taken in the pleadings, no evidence could be allowed to be led on the point. In any case the appellants neither placed any evidence by way of affidavit nor any pro en conclusive documents to indicate that any unforeseen circumstance of vis majure had occurred to prevent the delivery. Inevitably it must be held in these circumstances that the appellants had acted contrary to their own assurance and the terms of the agreement and unjustifiably withheld the delivery. Obviously the consumer cannot be made to pay for their default if during this unauthorised delay, the price of the vehicle had gone up. Had the appellants conformed to both the letter and spirit of the agreement between the parties, no such situation would have arisen. On the established case there is thus a clear deficiency in service for which they have been rightly held responsible by the District Forum. We find not the least reason to take a view contrary thereto.
6. We do not find any substance in the appeal which is accordingly dismissed but under the circumstances without any order as to costs.”
5. In the present case the booking was affected on 2.2.1994 and the delivery was made only on 12.5.1994. The respondent No. 2 has stated that an approximate time of delivery was given as six weeks subject to other terms and conditions as set out in the Booking Form, the applicant had given choice of only one colour i.e. Neptune Blue and there was delay in delivery of the vehicle as such colour was not available. An offer was also made for an alternate white colour on different dates but the applicant insisted only on Neptune Blue colour and agreed to wait for the said colour. The respondents categorically stated that the vehicle would be delivered strictly in the order of receipt of customer’s payment and subject to production and supply of vehicles from Maruti Udyog Ltd., respondent No. 1. The statement of the applicant was also recorded and he has stated in cross-examination by Counsel for respondent No. 2 as follows :
“When I booked the Maruti Van, I also filled up the order booking form. It is correct that I wanted a Neptune Blue Colour Van. (The booking order was shown to him and he admitted that it bore his signature. It is marked as Ex. A.W. 1/R1). It is correct that I was offered a white colour Van but I did not accept it because my colour preference was Neptune Blue. It is correct that I have a letter on 3rd March, 1994 stating that the delivery should be given to me in April, 1994. Because I proceeded to Hyderabad on training and I wanted to take the delivery after my return, I had also given an authority letter in the name of my brother-in-law to take delivery of the vehicle in my absence as I came to know that the prices would be revised. I am working in the State Bank of India as Deputy Manager but presently am posted as Branch Manager. MACT, Bhopal, it is correct that I was told that the price prevailing at the time would be charged from me. It is correct that nobody who booked Neptune Blue colour Van was given delivery prior to me.
It is not correct that I have not suffered any loss on account of late delivery of Neptune Blue Colour Van.”
6. The reading of above will indicate that the applicant himself conceded that he had only preferred Neptune Blue Colour and the delivery should be given to him in April, 1994. The respondents have also clearly reiterated that the vehicle would be delivered strictly in the order of receipt of customer’s payment and subject to production and supply of vehicles from Maruti Udyog Ltd., respondent No. 1. Delay in the present case has been caused in view of the short supply of the vehicle in the colour as
desired by the applicant as well as his own insistence that he would like to take the delivery only in April, 1994. In the meanwhile the excise duty was raised w.e.f. 1.4.1994. Therefore, there was ample justification on the part of the respondents to contend that the applicant was liable to pay the revised excise duty as levied by the Government. The judgment of the Supreme Court as referred to above will be of no application as the same was rendered on its own facts.
7. In view of the above reasons we hold that the respondents have not indulged in any unfair trade practice as alleged in the Compensation Application. The applicant was merely required to pay the revised excise duty as he had taken delivery of the vehicle after 1.4.1994. The issues as framed are decided accordingly. The present application is, therefore, devoid on merit and is dismissed. There will be no order as to costs.