No. 10/12.01.2009.

HON’BLE JUSTICE SRI A. CHAKRABARTI, PRESIDENT.

This appeal arises out of judgement dated 09.06.208 passed by 24 Pgs. (South) District Consumer Forum in CC No. 113 of 2007 whereby the complaint was allowed granting appropriate relief.  The appeal was filed by the O.P. in the Forum below contending that though under the Agreement Rs. 8 lakhs in cash are to be paid to the two brothers namely Sri Mrityunjoy Ghosh and Sri Kalipada Ghosh, O.P. paid Rs. 4,00,000/- to Sri Kalipada Ghosh and after payment of Rs. 4,00,000/- to Sri Mrityunjoy Ghosh, the cheque amount to Rs. 1,00,000/- was directed to be not paid by the O.Ps in view of the contention of the O.Ps.  Mr. Dutta, the Ld. Advocate appearing for the O.P. – Appellant contends the present Respondent Sri Mrityunjoy Ghosh is not entitled to the said sum of Rs. 1,00,000/- and he had taken possession of extra one car parking space over and above the one which was required to be given to him under the development agreement.  The Ld. Advocate for the Respondent contended that having not proved the said case before the Forum below the Appellant is not entitled to any relief in the present appeal.

Mr. Dutta also contended that as his client issued the cheque for Rs. 1,00,000/- and thereafter issued direction to the Bank for stop payment the amount having thus being paid the Complainant is only entitled to file money suit and there is no deficiency in service making the Forum entitled to decide the issue. 

We have considered the respective contentions and the materials on record.  From the Written Objection filed by the O.P. in the Forum below we find no pleading has been made with regard to the alleged case of the present Appellant that the Complainant took possession of one garage space extra illegally over and above the garage space to be given to him under the agreement.  Even the letter annexed to the Written Objection dated 03.04.2007 does not show any such case.  Therefore, there being no pleading on the said issue there was no requirement for the Forum below to consider the said facts nor it is required for us in the appeal to consider the said aspects.

We find that the issuance of cheque followed by stop payment order does not amount to payment of the amount.  The agreement speaks of cash payment of Rs. 8,00,000/- and, therefore, issuance of a cheque followed by stop payment direction does not satisfy the said requirement and, therefore, there was deficiency in service.

There being no other ground argued in the appeal and the lone contention advanced by the Appellant having been found to be not acceptable, the appeal is dismissed.  There is no order as to cost.