Judgment : Dt.29.6.2017

            This is a complaint made by one Tapash Kanti Kanungo, sonHH of Late Subodh Chandra Kanungo, residing at E-53, Ramgarh, P.O.-Naktala P.S.-Netajinagar, Kolkata-700 047, Dist.-South 24-Parganas, against – (1) M/s Hindol Tourism, represented by proprietor Sri Subrata Das, OP No.1 and (2) Sri Subrata Das, residing at ARKA- 96, R.N.Tagore Road, Ushumpur, Battala, Agarpara, Kolkata-700 109, OP No.2 , praying for directing the OPs for refund of Rs.1,00,000/- with interest @ 18% and Rs.30,000/- as litigation cost and Rs.1,00,000/- as compensation.

             Facts in brief are that OP proposed the Complainant to join their Andaman and Nicobar Island tour scheduled on 19.11.2014 along with his family members. Complainant agreed with the proposal and the Complainant paid a sum of Rs.1,00,000/- on 13.10.2014 to OP No.1 through cheque bearing No.002628 drawn on Allahabad Bank, Kolkata, for buying 6 Air India Tickets for the Complainant and his five other family members. OP No.1 specifically instructed the Complainant to pay the aforesaid amount because the attractive tariff which was then prevailing and was then easily available. OP No.1 somehow did not purchase the ticket at that point of time when the amount was paid to the OP No.1. Complainant went on pursuing over the issue, but, somehow the OP was much reluctant to provide sufficient service and it opted to avail the ticket in the month of November, 2014 when the price was naturally high and most importantly the flight was not available. Surprisingly, the OP No.1 asked the Complainant to travel Port Blair from Kolkata via Chennai and the price of the tickets were shockingly high which the Complainant refused to pay. The escalation of the price of the Air Tickets was only because of the deficiency of service of the OP. Complainant having refused to pay extra money for the Air Tickets, cancelled the tour and informed the same to the OP No.2 and directed him to refund the sum of Rs.1,00,000/-. OP No.2 took some time to refund the amount, but, unexpectedly the sum was not yet refunded. Complainant sent a letter in November 28, 2014, for return of the money with 12% interest. OP issued a cheque in favour of the Complainant. But the said cheque was dishonoured owing to insufficient fund. The proceeding under Section 138 is pending. But, some how the OP has not yet refunded the money. OP may be directed to refund the said amount of Rs.1,00,000/-.

              OP did not contest the case by filing written version and so the case is heard ex-parte.

Decision with reasons

              Complainant has filed affidavit-in-chief wherein he has stated the facts mentioned in the complaint petition.

              Main point for determination is whether Complainant is entitled to the reliefs as prayed for.

              Prayer of Complainant is refund of Rs.1,00,000/- with 18% interest and also for compensation of Rs.1,00,000/- and litigation cost of Rs.30,000/-.

              On perusal of paragraph 7, it appears that OP has issued a cheque to the Complainant but it was dishonoured. Further, it appears that Complainant has filed a case under Section 138 of the Negotiable Instrument Act. Complainant has not mentioned in his complaint as to what happened to that case but has mentioned that it is still pending. Since the allegation made by the Complainant remained un-rebutted and unchallenged, prima facie, it appears that the allegations are true. But, Complainant by filing the case under Section 138 NIA has camouflaged the situation. Complainant could have filed the last order of the Ld. Judicial Magistrate, whether the case is pending.

              As such, we are of the view that when the case under Section 138 NIA is pending, any order in favour of Complainant make create confusion and may be contradicted to the order of the Ld. Judicial Magistrate.

              In such circumstances, we are not in a position to pass any order over this complaint.

Hence,

ordered

               CC/539/2016 and the same is dismissed ex-parte.