Full Text
% Date of decision: 21st May, 2018
+ CS(OS) 55/2016 & IA No.1810/2016 (u/S 80(2) CPC).
MANISH UPPAL ..... Plaintiff
Through: Mr. Vineet Sinha, Mr. Manmeet Singh
Nagpal and Mr. Ashok Kr. Nanwani, Advs.
Through: Mr. Mohit Bakshi, Adv. for D-5.
Ms. K. Enatoli Sema, Adv. for D-6.
JUDGMENT
1. The plaintiff has instituted the present suit pleading,
(i) that the defendant no.1 Fiorano Motors LLP, a partnership of defendant no.2 Ashish Choradia and defendant no.3 Ujjawal Sampat Chordia, representing itself to be the sole agent / dealer / importer of the defendant no.5 Ferrari S.P.A Italy, in or about September – October, 2011, offered to sell to the plaintiff a 599 GTB F[1] Ferrari Car representing that if the plaintiff bought the said car, the plaintiff shall be given the first month production of new F 12 Berlinetta Car, a new model of Ferrari, which the defendant no.5 was going to launch within next 12 months and the defendant no.5 will take back the Ferrari 599 GTB F[1] Car of the plaintiff at 80% of the value of the Car; the defendant no.1 gave the plaintiff a letter dated 9th November, 2011 containing 2018:DHC:3340 the aforesaid proposal and bearing the seal of the defendant no.5 in confirmation thereof;
(ii) that the plaintiff, believing the representations of the defendants no.2,&3, purchased the Ferrari 599 GTB F[1] car believing that the plaintiff would receive the first month’s production of new F12 Berlinetta Car which the defendant no.5 was going to launch in the next 12 months;
(iii) that by further relying on aforesaid representations of defendants no.1 to 3, the plaintiff placed an order on defendant no.5 through defendant no.1 for purchase of Ferrari Motor Car F12 Berlinetta Model FERRARI F152 AB E Bearing VIN/Chasis No.ZFF74UHC000197432 AND Engine No.207092 and paid Rs.50 lacs out of the agreed final price of Rs.4,29,01,417/- to the defendant no.1;
(iv) that the plaintiff, on 26th March, 2013, paid a further amount of
Rs.2,50,00,000/- to the defendant no.1, making a total payment of Rs.[3] crores, being almost 80% of the final price agreed between the parties;
(v) that it was agreed at the time of placing the order that the price was inclusive of the Customs Duty and other miscellaneous charges;
(vi) that it was further agreed that as and when the vehicle comes to
India, Customs Duty and other charges if any to get the vehicle cleared from the Customs would be paid by the defendants no.1,2&3;
(vii) that it was also agreed that the defendants no.1,2&3 would also get the vehicle cleared from defendant no.6 Commissioner of Customs, Union of India, through its Custom House Agent;
(viii) that the defendant no.4 Automobilia Italia Pvt. Ltd. has also been promoted by the defendant no.2 and it was represented to the plaintiff that the defendant no.4 has been floated at the instance of defendant no.5. for carrying out the import of the vehicles;
(ix) that the defendant no.2, in March, 2013, took away the 599
GTB F[1] Car of the plaintiff on the assurance that he will sell it for Rs.3,24,41,834/- and further promised that the plaintiff will soon receive delivery of the F12 Berlinetta Car;
(x) that the defendants no.1,2&3 however neither gave delivery of
F12 Berlinetta Car nor deposited the sale proceeds of 599 GTB F[1] Car that had been entrusted by the plaintiff to the defendants no.1,2&3;
(xi) that the plaintiff received a letter dated 19th May, 2014 from defendant no.5 to the effect that defendant no.1 was no more the authorised dealer or Indian Importer of Ferrari Cars and that the defendant no.5 had terminated its agreement with the defendant no.1 in April, 2014;
(xii) that the plaintiff was further informed that the vehicle agreed to be sold to the plaintiff was lying with the defendant no.6, waiting for the defendants no.1,2&3 to take delivery;
(xiii) the defendant no.5 thereby wrongly denied its responsibility to get the vehicle delivered to the plaintiff;
(xiv) that since the defendants no.1,2&3 failed and neglected in their duty to pay the Customs Duty and to have the vehicle released, the plaintiff got issued a legal notice to the defendants no.1,2&3;
(xv) that the defendants no.1,2&3 though promised to return part of the sale consideration to the plaintiff did not do so;
(xvi) that on learning of the whereabouts of 599 GTB F[1] Car, the plaintiff obtained custody thereof;
(xvii) that the defendants no.1,2&3, on 9th July, 2014, refunded Rs.50
(xviii) that however the defendants no.1,2&3 paid only another sum of
2. On the aforesaid facts, the plaintiff has instituted this suit, (i) for declaration that there is a legal, subsisting, valid and binding Sale Agreement between the plaintiff and the defendants no.1 to 5 in respect of Ferrari Motor Car F12 Berlinetta Model FERRARI F152 AB E Bearing VIN/Chasis No.ZFF74UHC000197432 and Engine No.207092 and currently lying in the custody and possession of defendant no.6 in Delhi; (ii) for mandatory injunction directing the defendants no.1 to 5 to perform their obligations under the Sale Agreement and deliver possession thereof to the plaintiff by depositing the Customs Duty and other statutory charges; and, (iii) in the alternative for recovery from defendants no.1,2&3 of Rs.1,00,00,000/- as damages and of Rs.2.25 crores with interest at 18% per annum.
3. The suit was entertained and written statements have been filed by the defendants no.5&6 only and to which replications have been filed by the plaintiff.
4. The suit came up before this Court on 24th April, 2018 when the counsel for the plaintiff stated that the suit was ripe for framing of issues and the counsel for the defendant no.5 also handed over proposed issues.
5. On enquiry, it was informed that the defendants no.1,2&3 had been proceeded ex parte on 5th October, 2016 and the right of the defendant no.4 to file written statement stood closed.
6. After going through the pleadings and understanding the controversy, it was enquired from the counsel for the plaintiff, whether not the vehicle, in the last over nearly five years since when it reached Indian Customs, had already lost its value and it was observed that the vehicle would further lose value if issues were to be framed and the suit put to trial. It was proposed to the counsel for the plaintiff that if interested in the Car should pay the Customs Duty and have the Car released and pursue the claim for recovery of the said dues also against the defendants. The plaintiff was accordingly directed to contact the Customs Authorities to find out the exact dues of the Customs as of now and the counsel for defendant no.6 also was directed to today inform of the said dues.
7. Further finding, that there was no plea in the plaint to entitle the plaintiff to specific performance of a contract of purchase of vehicle, the counsel for the plaintiff on 24th April, 2018 was also asked to explain as to how the claim for specific performance was maintainable.
8. Today, the counsel for the plaintiff seeks adjournment, stating that the plaintiff is abroad.
9. The conduct of the plaintiff and his counsel is not understandable. The plaintiff is pursuing this suit for specific performance of an Agreement of Sale of vehicle and which as per Section 14 (1)(a) of the Specific Relief Act, 1963 is not specifically enforceable. The plaintiff, even if succeeds in the claim for specific performance, is unlikely to take the vehicle which has been lying with the Customs Authorities for the last nearly five years. Owing to the pendency of the present suit, probably the Customs Authorities also would not have taken any action for realisation of their dues by disposal of the said vehicle and if the vehicle remains standing for another few years, as seems to be the want of the plaintiff, it would be left worth nothing, neither to the plaintiff nor to the Customs Authorities.
10. The counsel for the plaintiff then, to show that non-performance by the defendants of the Agreement of Sale of vehicle cannot be adequately compensated and thus is specifically enforceable, draws attention to the paragraph of the plaint where it is pleaded that the vehicle agreed to be sold was to be of first month’s production. However on enquiry, whether not more such cars of such models were produced or what is the uniqueness of the first month’s production, to make the Agreement of Sale of it specifically enforceable, the counsel for the plaintiff has no answer.
11. Moreover, the plaintiff having asked for refund of advance price paid for purchase of the Car and having already received refund of Rs.75,00,000/- out of advance of Rs.[3] crores, is not entitled to specific performance. Reference in this regard can be made to Harbans Lal Vs. Daulat Ram ILR (2007) I Delhi 706 (DB) and Madan Lal Bansal Vs. Roshan Lal Singla (2008) 153 DLT 278.
12. The counsel for defendant no.6 informs that Customs Duty of Rs.2,99,49,974/- plus interest as applicable in terms of Section 61(2) of Customs Act, 1962 is due.
13. It can safely be assumed that in the last five years, the interest component itself would be in excess of the Customs Duty.
14. The counsel for the plaintiff states that the plaintiff has already paid the Customs Duty to the defendant no.1.
15. Not only is the aforesaid statement not correct according to the averments in the plaint but even if the plaintiff has paid the Customs Duty and the plaintiff succeeds in obtaining a decree for specific performance against the other defendants, until the Customs Duty is proved to be paid to the defendant no.6 and qua which there is no averment, the Court will be unable to order release of the Car without payment of Customs Duty.
16. The counsel for the plaintiff then states that the plaintiff is entitled to decree for recovery of Rs.2.25 crores along with damages and both with interest, against defendants no.1 to 5.
17. The counsel for defendant no.5 points out that the relief of recovery of money is against the defendants no.1,2&3 only.
18. I have also asked the counsel for the plaintiff as to how the plaintiff can claim damages when has itself opted out of the contract and obtained refund.
19. The counsel for the plaintiff then sought a passover to obtain instructions from the plaintiff.
20. The counsel for the plaintiff on passover states that a decree for recovery of money in favour of the plaintiff and against the defendants no.1,2&3 only be passed for recovery of Rs.2.25 crores with interest and costs. Attention is drawn to photocopy of affidavit dated 10th December, 2015 on behalf of defendants no.1 to 3 filed in the High Court of Judicature at Bombay, copy of which is at page 69 of Part-III File and wherein liability to refund Rs.2.25 crores to the plaintiff has been admitted.
21. In view of the aforesaid admission of the defendants no.1,2&3, need to relegate the plaintiff to ex parte evidence for the relief to which the suit is confined is not felt.
22. A decree is accordingly passed, in favour of the plaintiff and against the defendants no.1,2&3 namely Fiorano Motors LLP, Ashish Choradia and Ujjawal Sampat Chordia, of recovery of Rs.2.25 crores with interest at 10% per annum from the date of institution of the suit and till realisation. The plaintiff shall also be entitled to proportionate costs of the suit from the defendants no.1 to 3. Decree sheet be drawn up.
RAJIV SAHAI ENDLAW, J MAY 21, 2018 ‘pp’..