The case of the petitioner is that he purchased gold ornaments from the oP and issued cheque of Indian Bank, Chinsurah branch being cheque no. 277650 dated 1.34.2013 amounting to Rs.66,856/- under a condition that the price of the gold ornaments would be determined on the date of receipt of payment and his cheque was cleared on 17.4.2013 when the price of gold was less than the price of gold as it was on the date of his order on 13.4.2013. He requested the oP to charge the price of gold as per rate of gold on 17.4.2013 as per terms and conditions mentioned in the cash memo but the OP did not refund the amount and refused to do so and such act of the Op amounted to unfair trade practice and so is this case.
The Op contested the case by filing a written version denying the allegation made in the claim petition and submitted that the case is not maintainable as the petitioner has no cause of action to file the case. The Op further submitted that the payment was made by cheque which is as good as payment by cash or bank draft or anyother negotiable instrument and the petitioner cannot claim the date of clearing of cheque as the date of payment. The Op received the cheque on
13.4.15 and on 17.4.15 the clearance was made and that date cannot be the date of payment. The petition is misconceived and is liable to be dismissed.
On the above cases of the parties the following issues are framed.
Whether the petitioner has any cause of action to file the case ?
Whether the case is maintainable in its present form ?
Whether the petitioner is entitled to refund of Rs.7411/- as prayed for ?
DECISION WITH REASONS :
All the issues are taken up together for the sake of its convenience and brevity of discussion and to skip of reiteration.
The petitioner to prove his case deposed before this Forum by filing an affidavit wherein he submitted that he purchased gold ornaments from the oP and issued cheque of Indian Bank, Chinsurah branch being cheque no. 277650 dated 1.34.2013 amounting to Rs.66,856/- under a condition that the price of the gold ornaments would be determined on the date of receipt of payment and his cheque was cleared on 17.4.2013 when the price of gold was less than the price of gold as it was on the date of his order on 13.4.2013. He requested the oP to
charge the price of gold as per rate of gold on 17.4.2013 as per terms and conditions mentioned in the cash memo but the OP did not refund the amount and refused to do so and such act of the Op amounted to unfair trade practice and so is this case. He also filed the cash advance receipt wherein in the back page there is mention that in case of gold ornaments made to order gold price will be determined at selling price as on the date of receipt of payment and it is also mentioned that cheque receipt is subject to realization. Thus keeping in mind the submission of the learned counsels of both sides as well as the provisions of law a cheque is a negotiable instrument which merely gives an assurance or promise to pay money by the drawer to the payee and thus it is in the nature of agreement in contrast to a contract unless it is expressly provided by a specific clause to that effect . In the instant case it has been specifically mentioned in the cash receipt issued by the oP that when gold ornaments are ordered then the price of gold would be determined as selling price as on the receipt of payment and it is also mentioned therein that the cheque receipt is subject to realization and thus the petitioner rightly claimed in the instant case treating 17.4.2013 as the date of receipt of payment when the cheque was cleared and not on 13.4.2013 when the cheque was presented by the petitioner to the oP. Thus the
rate of gold being fixed here on 17.4.2013 and the gold price remaining 25,340/- per 10 gms for 22 K gold , the petitioner rightly claimed Rs.7,411/- which was received from his in excess than the actual price of gold as it was on 17.4.2013.
In view of above discussions and findings this Forum finds that the petitioner is entitled to refund of Rs.7,411/- as prayed for .
Court fees paid is correct.
Hence ordered
That the C.Case no. 73 of 2013 be and the same is allowed on contest against the OP but without any cost considering the facts and circumstances of the case. The petitioner is entitled to a sum of Rs.7,411/- as prayed for.
The Op is directed to pay a sum of Rs.7,411/- to the petitioner within 30 days from the date of this order, failing the amount would carry interest @ 9% percent per annum till realization and the petitioner would be at liberty to put the order in execution.
Let a copy of this order be made over to the parties free of cost.
