- 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION No. 2755 OF 2008 IN SUIT No. 2288 OF 2008 Shabnam Abdul Majid Chaudhary ... Plaintiff Vs. M/s. Tata Motors Ltd. & Anr. ... Defendants *** Mr. Jayesh Bhati, for the Plaintiff. Mr. Vinay Sonpal i/b J. M. Baphna & A. A. Marathe, for the Defendant Nos. 1 and 2. *** CORAM : V. M. KANADE, J. DATE : AUGUST 24, 2009. PC :- 1. The plaintiff has taken out this Notice of Motion seeking the following reliefs- “(a) Pending the hearing and final disposal o the suit the Court Receiver, High Court, Bombay be appointed as Receiver of the suit property viz. the said Car being Tata Safari VX 4x2 Dicor BS-III bearing Chasis No.403091ESZNO8654 having Registration No. MH 06 AL7575 with direction to appoint an Automobile Engineer to inspect the said car and report whether it is worthy of being called - 2 - and used as a brand new car and thereafter to sell the said car by Public auction of private treaty and pay the proceeds to the plaintiff subject to account as may be finally settled and decided by this Hon’ble Court. (b) Costs.” 2. The plaintiff has filed this suit seeking recovery of an amount of Rs.21,26,054/- together with interest thereon @ 18% per annum from the date of suit till payment of the said amount. The defendant No.1 is manufacturer of the car and defendant No. 2 is the dealer and service agent of defendant No.1. The plaintiff is a businessman. She booked a car known as Tata Safari VX 4x2 Dicor, BS-III after paying an amount of Rs. 5 lakhs as the initial booking amount to the defendant No.2. It is her case that when plaintiff went to take delivery of the car at Kalyan Depot of defendant No. 2, it was found that the car was not in a good condition and the colour was damaged at places. According to her, she was assured that the defects would be removed and she was asked to pay the balance amount and come after 2 days for taking delivery of the car. Accordingly, the balance amount was paid by the plaintiff and receipt to that effect was issued by the defendant No.2 dated 24-7-2007. Thereafter when plaintiff went to take delivery of the car after 2 days, she noticed the defect in the car which was offered to her, was not rectified. According to her, she was assured that she should bring back the car and those defects would be removed. She therefore, immediately took back the car to - 3 - defendant No.2 and again she was told to take delivery of the car and come back after 2 days and when she went there after 2 days, on minute scrutiny she found that the defect was not rectified. The plaintiff was assured that in view of four years extended warranty, the plaintiff was entitled for servicing and they would attend to all problems and defects when the car is brought back after a few weeks. It is case of the plaintiff that relying on the assurance given by the defendant, she took delivery of the said car. Thereafter she noticed that there was a scratch in the wind screen which was not visible at the premises of defendant No.2 due to bad light and the wiper was also not functioning properly and there were colouring defects on the roof and on the back side of the car. The blower on the roof of the car was not functioning properly and was making noise. She therefore, delivered the car at service station of defendant No.2 on 11th July 2007. The Job Card was issued by defendant No.2 in which all the defects have not been noted. It is case of the plaintiff that however, defects were not removed. The plaintiff sent email on 8-6-2007 to defendant No.1 and requested them to take the car back and return her money with interest and that she should be paid compensation for the damages suffered by her. The plaintiff was however, informed by the defendant that the car was ready and plaintiff should take back the car, the car was ready for delivery since 8-8-2007 and the request for refund could not be considered by the defendants. According to the plaintiff when she went back to take delivery, she noticed that none of the defects were attended to by the defendants. It is the case of the plaintiff in brief that defendants had knowingly and dishonestly - 4 - defrauded the plaintiff by trying to supply an inferior quality car, having manufacturing defect and also having defects in colour and therefore, plaintiff was entitled to recover the entire amount which was paid by her along with interest @ 18% per annum from the defendants. 3. On the other hand, defendants have filed their affidavit-in-reply and have denied the allegations which are made by the plaintiff. It is submitted that the plaintiff had purchased the said car and if according to the plaintiff there was any defect in the said car, it was her duty to establish by leading the convincing evidence. According to defendants, while purchasing the vehicle, the plaintiff had an opportunity to inspect and examine the vehicle and had taken trial before delivery of the new vehicle, to her satisfaction and only thereafter she had paid the price for the said car. It is further submitted that the vehicle thereafter was used by the plaintiff for about 5000 Kms in the first three months and plaintiff has availed the warranty, service from defendant No.2 from the routine check-up and for attending to minor and further trivial complaints. All the contentions raised by the plaintiff in the plaint, Notice of Motion and the affidavit in support thereof, were denied by the defendants. It was submitted that mere allegations of the plaintiff without any evidence, such as expert’s opinion obtained from an automotive laboratory is baseless and not maintainable, and therefore, suit and the Notice of Motion were devoid of any merits. It was therefore, submitted that plaintiff may be directed to take possession of the vehicle and the Notice of - 5 - Motion taken out by the plaintiff for appointment of Court Receiver may be dismissed. 3 I have heard both the learned counsel at length. It is an admitted position that the plaintiff has purchased the vehicle and has paid the sale consideration for the said vehicle. The plaintiff therefore, is the owner of the vehicle. The plaintiff will have to establish her own case that the vehicle which was sold to her was of the inferior quality by leading evidence. Suit essentially is for recovery of certain amount of money, by way of refund of money paid by the plaintiff and damages and interest on the said amount. Under these circumstances, the question of appointment of Court Receiver for taking possession of the said car does not arise. Similarly, the Court Commissioner cannot be appointed for the purpose of taking inspection of said car and giving opinion of an expert. The burden of establishing the fact that the car which was sold to the plaintiff was of inferior quality is solely on the plaintiff. The learned counsel for defendant No.1 submitted that plaintiff may take delivery of the vehicle at any time during the office hours. The prayer made by the plaintiff for appointment of Court Receiver therefore, cannot be granted. In the result, there is no merit in the submissions made by the learned counsel appearing on behalf of the plaintiff. Notice of Motion is therefore, dismissed. Sd/- [ V. M. KANADE, J.]