This is a complaint made by Bikashs Chandra Datta, son of Late Gour Chandra Dutta, residing at Century Apartment, 220, Rifle Club (East), Bansdroni, P.S. – Regent Park, Kolkata – 700 070, against Debasish Sarkar, son of Sri Kamal Sarkar, residing at 287, Ganguly Bagan, P.O.-Naktala, P.S.- Patuli, Kolkata-700 047, carrying business as a partner of M/s.-Millenium India Construction at 23/15, Naktala Road, Millennium, Flora Apartment, P.O.-Naktala, P.S.- Patuli, Kolkata-700 047, praying for direction upon the OP to pay Rs.2,75,000/-, being dishonoured cheque with interest and compensation of Rs.1,50,000/- and litigation cost of Rs.75,000/-.

            Facts in brief are that OP is a business man carrying out business with M/s. Millennium India Construction and residing at 287, Ganguly Bagan, P.O.- Naktala, P.S.-Patuli, Kolkata – 700 047. Complainant deposited a sum of Rs.3,50,000/- by cheque No.966289 vide Money receipt No.607 dt.3.6.2011 to the OP towards booking for purchasing a South-East facing residential flat measuring about 1150 sq.ft.on the 3^rd floor. OP received and accepted the cheque. But, did not entered into agreement for sale with the Complainant. So, Complainant wrote a letter on 24.2.2014 to the OP and requested to execute agreement for sale within 15 days. But, OP did not enter into agreement for sale. OP returned the booking amount by issuing two cheques to the Complainant bearing No.356953 dt.5.6.2014 for a sum of Rs.2,00,000/- and cheque bearing No.356954 dt.10.6.2014 for Rs.2,75,000/-. Complainant deposited the said cheques for encashment and only the cheque amounting to Rs.2,00,000/- was encashed. But, another cheque was returned with the endorsement fund is insufficient. Thereafter, Complainant sent a demand notice to the OP on 25.9.2014. But, OP did not pay the money. Complainant is a consumer and so Complainant filed this case.

            OP filed written version and denied the allegations of the complainant. Further, OP has alleged that it was agreed that at least 20% of the consideration money was to be paid for entering into the agreement for sale. Complainant took two cheques on his own amounting to Rs.2,75,000/-. But, the Complainant filed criminal complainant under Section 138 of the N.I.Act before the Ld. 7^th Court of the Judicial Magistrate at Alipore and the same is pending for disposal. But, unfortunately, the Complainant suppressed the fact and so the complaint should be dismissed.

Decision with reasons

            Complainant filed affidavit-in-chief wherein he has reiterated the facts of the complaint against which OP has put questionnaire to which Complainant has filed affidavit-in-reply. OP has filed evidence stating the facts mentioned in the written version to which Complainant has put questionnaire and OP has filed affidavit-in-reply.

            On perusal of this, it appears that both the parties have repeated their allegations which they have made in the complaint and written version respectively.

            Main point for determination is whether Complainant is entitled to the reliefs which he has prayed.

            On perusal of the prayer portion, it appears that Complaint has prayed for a direction upon the OP to pay Rs.2,75,000/-. In this regard, it appears that the case of the Complainant is that he paid only Rs.3,50,000/- to the OP of which OP issued receipt. But, anyhow, he received two cheques being of Rs.2,00,000/- and Rs.2,75,000/- from the OP and refund of that amount of Rs.4,75,000/-. So, OP stopped payment in respect of one cheque amounting to Rs.2,75,000/-. It is because OP was bound to pay only Rs.3,50,000/- which he received from the Complainant. So, it can be safely said that the conduct of the OP was not contrary to the agreement which both entered into amongst themselves.

            Further, it appears from the allegation of the OP with the questionnaire and evidence of the OP that Complainant filed a case under Section 138 N.I.Act for the cheque of the OP which was returned with the endorsement fund is insufficient.

            OP has rightly mentioned in his affidavit-in-chief and written version that Complainant intentionally suppressed all these fact and has made an attempt to realize the money for compensation and litigation cost for no reason.

            It is a settled principle of law that the grievance of the complaint can be settled before the Ld. Magistrate which was filed prior to this complaint and that proceeding is still pending.

            In the circumstances, we are of the view that there is no ground for interfering in the proceeding which is already pending and if any order is passed over this complaint it may amount to miscarriage of justice.

            Hence it is clear that Complainant failed to prove the allegations and he did not approach this Forum with clean hands.

            Hence,

ordered

            CC/183/2016 is dismissed on contest.