Orissa

Jajapur

CC/62/2015

Muralidhar Majhi - Complainant(s)

Versus

S.Gobardhan - Opp.Party(s)

Badri Narayan Panda

05 Jan 2018

ORDER

                        IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JAJPUR.

                                                        Present:      1.Shri Jiban ballav Das , President

                                                                            2.Sri Pitabas Mohanty, Member,

                                                                            3.Miss Smita Ray, Lady Member.                     

                                              Dated the 5th day of January,2018.

                                                      C.C.Case No.62 of 2015

Muralidhar Majhi   S/O Bata  Majhi   

Vill. Utaipur ,P.S. Dihudi Anandapur ,

Via. Dasarathpur , At present  residing

At.Kianalikul, P.O.Ankula

Dist.Jajpur                                                                         …… ……....Complainant .                                                                       .

                   (Versus)

1.Saidu Goverdhan, S/O Sanyasiro Hindu Commission Agent For

Fish Packing resident of D.No.22-1,Sreeparru ,Eluru Mandal

West Godaveri,Andhra Pradesh

2. State Bank of India, Jajpur Town branch ,At/P.O/P.S/Dist.Jajpur.

                                                                                                                            ……………..Opp.Parties.                  

For the Complainant:                                    Sri B.N.Panda,Advocate.

For the Opp.Parties : No.1                             None.

For the Opp.parties: No.2                             Sri P.K.Daspattnaik, Advocate.      

                                                                                                 Date of order:   05.01.2018.

SHRI  PITABAS MOHANTY, MEMBER   .

The petitioner has filed the present dispute not only alleging  deficiency in service but also unfair trade practice on the part of the O.Ps.

            The facts relevant as per complaint petition,  is the petitioner    he being  an unemployed person and to  maintain his livelihood and his family started   business center  in the name and styled of MMS company at Kianalikul,  Jajpur Town  for fish  making  . The petitioner has entered into an agreement with the O.P.1 on 25.6.12 , as  per agreement the total outstanding of  Rs. 7 lakhs  and in advance the  business .  The petitioner has  given two no. of cheque to the O.P.1 for amounting to  Rs.3,50,000 each bearing cheque No.050930  and 050931 of the S.B.I A/C No. is No. 11309231278.

             That the O.P.no.1 came to the  office of the petitioner  on 26.4.14 and mutually agreed to settle the dispute  and the petitioner was ready  and willing to pay the outstanding amount to O.P.no.1 and accordingly the petitioner paid a sum of Rs. 4,05,000/- by cash  and subsequently  the said amount was transferred  through S.B.I, Jajpur Town branch (O.P.no2)  vide A/C No.3006188966   and again credit Rs.3.50,000/- through the cheque No.060931 on 27.6.15  and also paid a sum of Rs.80,000/-  towards litigation expenses to the O.P.no.1..  Therafter the O.P.no.1  has no more money remained taken from the petitioner . Hence it is the duty of O.P.no.1 to return the unused cheque bearing No.050930  of SBI jajpur Town (O.P.no.2) to the petitioner.  

            That in the mean time the petitioner approached the O.P.no.1 to  return back the said cheque but with an ulterior motive and malafied  intention the said cheque bearing No. 050930  deposited by O.P.no.1  for clearance  before O.P.no.2 . Subsequently the  O.P.no.1 cleared the cheque and requested  the O.P.no.2  to  stop  payment  but no action  . Hence the O.P.no.2 also is liable to be punished  in accordance with law.

            Accordingly the petitioner has filed the present dispute with the prayer to direct the O.Ps  to return  back the cheque bearing no.050930  with excess amount which has already received  and award  Rs.1,00,000/- towards mental agony and harassment.

            The  notice  though duly served to the O.P.no. 1 but he did not to choose to contest the dispute by filing written version  and objection although  several opportunity  given by this fora. Hence  the O.P.no.1 has been set-exparte on 26.7.17.  On the other hand the O.P.no,2  appeared  through  their learned  advocate    and has taken  the following  stand in the written version.

            The petitioner is an  old customer of the O.P bank and he has availed a cash credit loan from the O.P bank vide loan A/C No.11309231278 till now same is continuing as on 27.06.15 . The cheque no.050931 referred to SB A/C No.11309231278 was presented in the Indian Bank, Ankula Branch for collection in due course. After receipt of the said instrument  on the same day Indian Bank,Ankula Branch sent it to the O.P Bank through clearing house. As per instruction of the collecting banker the clearing house cleared the cheque amount by deducting the cheque amount from the A/C of the petitioner which is in the O.P Bank . After clearing of the cheque in due and normal process complainant came to the O.P Bank and has requested for not to clear  up the cheque . At that time it was too late to stop an instrument which has been issued in due course for commercial transaction and has been presented duly in the bank for its due collection. When there was sufficient amount of balance in the A/C and a cheque presented in due course may not be dishonoured or its payment may not be stopped unless until proper instructions are to be communicated prior to processing of the said instrument by the payee branch.

            The collection of cheque for which the present dispute arose is a commercial transaction hence the present dispute is not maintenance and the complainant is not a consumer U/S 2(d) of C.P.Act.

On the  date of hearing  we perused the record and documents in details and observed  that: 1.it is undisputed fact that the petitioner makes some business transaction with o.p.no.1 and as per agreement the petitioner issued two numbers of cheque to the O.P.no.1 .

2.The allegation  the petitioner against O.P.no.2 regarding stop payment of  the cheque , we have not come across  with   single scrape of paper which will establish  that the petitioner  intimated the O.P.no.2  for stop payment  of the cheque before it  and presented by the o.p.no.1 to o.p.no.2  for collection. Hence it is our considered  view that there is no deficiency of service on the part of O.P.no.2 .

The next aspect relates to consider  is that the O.P.no. 1 has  neither appeared in the present dispute nor filed any written version   though the notice of the present dispute is duly served on O.P.no.1  . Hence, we  unanimously   accept  the  statement of the   petitioner made in the complaint petition  as uncontroverted as per observation of the Hon’ble State Commission, Odisha reported in 2003-Vol-96 p,15 C.D. Case No.37/02 wherein it is held that :

            In absence of the written version by the O.P this Forum is bound to accept the uncontroverted statement  of the complaint petition 

And     

2013 (1) CPR-507.NC wherein it  is that

            In  case W.V not filed after  several opportunity it has no defence on merit.

Accordingly we are inclined to hold that the O.P.no.1  has  no defence in the present dispute  and the blame shall be placed at the door of the O.P.no.1 . As such to meet the ends of justice we allow the dispute treating the petitioner  statement of the complaint petition as uncontroverted .

Hence this Order

            The dispute is allowed against O.P.no.1 and dismissed against O.P.no.2. the O.P.no.1 is directed to return back the cheque bearing No.050930  along with compensation of Rs.10,000/- to the petitioner within one month receipt of the order. No cost.

            This order is pronounced in the open Forum on this the 5th day of January,2018. under my hand and seal of the Forum.