Date of Filing: 26.09.2013 Date of Final Order: 17.11.2017
Sri Asish Kumar Senapati, President
This is an application u/s 12 of the C.P. Act, 1986.
The Complainant, Smt. Tulu Ghosh Poddar filed this complaint case against Ratan Ghosh, CMD of Gold Shine Project India Ltd., ICICI Bank Ltd. and another contending that she deposited Rs.30,000/- with Gold Shine Project India Ltd. on 01.03.13 but she did not get back any amount against her deposit and ultimately, she received a cheque being No.007815 amounting to Rs.30,000/- drawn on ICICI Bank from the O.P. No.1, Sri Rattan Ghosh, CMD of Gold Shine Project India Ltd. and the Complainant deposited the same on 09.07.13 in her Bank, Nishiganj Branch for encashment of the amount but the cheque was dis-honoured on the ground that the Bank Account of ICICI Bank was blocked. The Complainant contacted the OP No.1 over phone but did not get any response.
Hence, the Complainant filed this case praying for refund of Rs.30,000/-, Rs.39,000/- for mental agony and harassment and Rs.30,000/- for litigation cost.
The OP No.1, Ratan Ghosh put his appearance and submitted his w/v on 12.05.17 inter-alia denying the material allegations made out in the complaint contending that the complaint petition is wholly misconceived, groundless and liable to be dismissed. That the case is bad for defect of parties. The OP No.1 neither worked in Gold Shine Project India Ltd. nor received any amount from the Complainant. The OP No.1 had issued a cheque amounting to Rs.30,000/- in favour of the Complainant on 25.06.13 and the cheque was dis-honoured due to technical error in the Account of the OP No.1 and the Account of OP No.1 had been blocked by the concerned authority. Thereafter, the Op No.1 made contact with the Complainant and informed her that he would pay the said amount within 7 days. That this Forum has no jurisdiction as the matter falls under Negotiable Instrument Act, 1881. The OP No.1 prayed for dismissal of the case with cost.
The O.P. Nos. 2 & 3 did not contest the case.
On the basis of above versions, the following points are framed for proper adjudication of the case.
POINTS FOR CONSIDERATION
- Is the Complainant Consumer as per provision under Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Have the O.Ps any deficiency in service, as alleged by the Complainant?
- Whether the Complainant is entitled to get any relief/reliefs, as prayed for?
DECISION WITH REASONS
Point No.1.
The Ld. Agent for the Complainant submits that Complainant is a consumer under the Ops as defined under Section 2(1)(d)(ii) of the C.P. Act, 1986 as she deposited a sum of Rs.30,000/- with the OP No.1 and 3 on certain terms and conditions and the Ops have deficiency in service. In reply, the Ld. Agent for the OP No.1 submits that the Complainant is not a consumer under the OP No.1 and OP No.1 has had no noxious with Gold Shine Project India Ltd. On perusal of the complaint petition, w/v, documents, evidence and on a careful consideration over the submission of both sides, this Forum is of the opinion that the Complainant is a consumer under the OPs in the light of provision under Section 2(1)(d)(ii) of the C.P. Act, 1986.
Point No.2.
The Ld. Agent for the Complainant submits that this Forum has ample jurisdiction to entertain the complaint as the addresses of the Ops are within the territorial jurisdiction of this Forum and the claimed amount is also within the pecuniary limit of the District Forum. In reply, Ld. Agent for the OP No.1 submits that the complaint case is not maintainable as the complaint reveals the fact of dis-honour of cheque under the Negotiable Instrument Act. On a careful consideration, we are of the view that this Forum has both pecuniary and territorial jurisdiction to entertain the complaint.
Point Nos.3 & 4.
Both the points are taken up together for the sake of convenience and to avoid repetition.
The Ld. Agent for the Complainant submits that the Complainant deposited a sum of Rs.30,000/- on 01.03.13 against Receipt No.8259 issued by Gold Shine Project India Ltd. and the OP No.1 is the CMD of Gold Shine Project India Ltd. It is submitted that the Complainant did not get back any amount from the OP No.1 and 3 in spite of repeated demands and ultimately, the OP No.1 CMD of Gold Shine Project India Ltd. issued one cheque being No.007815 dated 25.06.13 amounting to Rs.30,000/- drawn on ICICI Bank Ltd. but the cheque was not encashed due to the reason “Account Blocked”. He argued that the Complainant met the OP No.1 and contacted him over Mobile phone but of no result. It is urged that the Complainant has filed this case praying for refund of Rs.30,000/-, compensation of Rs.39,000/- and litigation cost of Rs.30,000/- against the Ops. It is submitted that the OP No.1 has contested the case by filing w/v and evidence and challenged the maintainability of the complaint case and this Forum vide its order dated 30.01.14 rejected the prayer of the OP No.1. He argued that OP No.1 preferred a revision petition before Hon’ble State Commission being Revision Petition No. RP 26/2014 on 28.02.14 and the Hon’ble State Commission vide order dated 02.08.16 has been pleased to dismiss the revision petition by affirming the order of this Forum dated 30.01.14. He further argues that OP No.1 has admitted in para-10 of his w/v dated 12.05.17 that he issued a cheque of Rs.30,000/- in favour of the Complainant which was dis-honoured due to Account Blocked and he has also stated in para 11 of the said w/v that OP No.1 contacted the Complainant orally and told her that he would pay the said amount within 7 days from the date of dis-honour of the cheque but he has taken different plea at the time of hearing of revision petition before the Hon’ble State Commission. It has been clearly mentioned in para 3 of the order passed by the Hon’ble State Commission dated 02.08.16 that Mr. Alok Mukhopadhyay, Ld. Counsel appearing for the revisionist has contended that Smt. Tulu Ghosh Poddar and another jointly contributed the amount of Rs.30,000/- to the Company viz. Gold Shine Project India Ltd., Cooch Behar on 01.07.13 and Smt. Tulu Ghosh Poddar alone cannot draw the entire amount of Rs.30,000/- and if the Complainant is ready to accept Rs.15,000/-, the revisionist is ready to make payment to the Complainant. Ld. Agent submits that the Ld. Counsel Mr. Alok Mukhopadhyay, who appeared before the Hon’ble State Commission on behalf of OP No.1 clearly admitted the existence of the Co. Gold Shine Project India Ltd. in Cooch Behar and acceptance of money by the said company from the complainant. The money receipt being No.8259 dated 01.03.13 clearly shows the name of Smt. Tulu Ghosh Poddar as customer. He submitted that original money receipt dated 01.03.13 was taken by the O.P.No1 for issuance of cheque. It is urged that para 10 and 11 of the w/v submitted by OP No.1 dated 12.05.17 and the contention of Mr. Alok Mukhopadhyay, Ld. Counsel appearing for the revisionist- OP No.1 before the Hon’ble State Commission clearly establish that Complainant deposited a sum of Rs.30,000/- with Gold Shine Project India Ltd. and the OP No.1 issued one cheque amounting to Rs.30,000/- drawn on ICICI Bank vide cheque No.007815 dated 25.06.13 in discharging his liability in receiving the amount of Rs.30,000/- from the Complainant. He prays for refund of the amount of Rs.30,000/- with interest till realization, compensation of Rs.39,000/- for mental pain and agony and Rs.30,000/- for litigation cost from the OP No.1 and 3.
In reply, the Ld. Agent for the OP No.1 submits that the case is not maintainable as the facts of this case reveal that it is nothing but dis-honour of the cheque. She contends that the Complainant might file a case u/s 138 of the NI Act against the OP No.1, It is urged that H/S/C has turned down the revision application of the OP No.1 but OP No.1 has had no connection with the Gold Shine Project India Ltd. and the Complainant is not entitled to get any relief in this case. He prays for dismissal of the complaint case with cost.
We have gone through the complaint petition, w/v and evidence of both parties and the documents submitted by the Complainant. It is the allegation of the Complainant that she deposited Rs.30,000/- with the Gold Shine Project India Ltd. on 01.03.13 against money receipt No. 8259 and OP No.1 issued a cheque in the name of the Complainant amounting to Rs.30,000/- dated 25.06.13 drawn on ICICI Bank but the cheque was dis-honoured on the remarks “Account Blocked”. The OP No.1 in his w/v in para 10 and 11 admitted issuance of the cheque in the name of the Complainant and he has also stated that he told the Complainant that he would pay the entire amount by 7 days from the date of dis-honour of the cheque. The cheque was dis-honoured on 09.07.13 but the OP No.1 did not pay the amount of Rs.30,000/- to the Complainant. In para 8 of the w/v, the OP No.1 stated that he neither worked in Gold Shine Project India Ltd. nor received any amount from the Complainant but it has been mentioned in para 3 of the judgment passed by the Hon’ble State Commission dated 12.08.16 in revision petition No. RP 26/2014 that Mr. Alok Mukhopadhyay, Ld. Counsel appearing for the revisionist has contended that Smt. Tulu Ghosh Poddar and another jointly contributed the amount of Rs.30,000/- to the Company viz. Gold Shine Project India Ltd., Cooch Behar on 01.07.13 and Smt. Tulu Ghosh Poddar alone cannot draw the entire amount of Rs.30,000/- and if the Complainant is ready to accept Rs.15,000/-, the revisionist is ready to make payment to the same. Therefore, Ld. Counsel appearing for the OP No.1 revisionist before the H/S/C admitted the existence of Gold Shine Project India Ltd. but according to him, the Complainant and another jointly contributed the amount of Rs.30,000/- to the Gold Shine Project India Ltd. on 01.07.13. The OP No.1 has not been able to produce any document to establish the fact that the Complainant and another jointly contributed the amount of Rs.30,000/- to the Gold Shine Project India Ltd. on 01.07.13. The OP No.1 has not stated as to why he issued a cheque in favour of the Complainant amounting to Rs.30,000/- on 25.06.13. On a careful consideration over the entire materials on record including the evidence adduced by both parties and documents submitted by the Complainant, we have no hesitation to hold that the Complainant deposited Rs.30,000/- with the Gold Shine Project India Ltd. against money receipt No.8259 dated 01.03.13 and OP No.1 being the CMD of that Company issued a cheque being No. 007815 dated 25.06.13 amounting to Rs.30,000/- drawn on ICICI Bank in discharging the liability of Gold Shine Project India Ltd. to refund the amount which was received by the Company vide money receipt No.8259 dated 01.03.13. We do not find any cogent ground to believe the statements of the OP No.1 as he did not pay off Rs.30,000/- to the Complainant within 7 days from the date of dis-honour of the cheque as per para 11 of his w/v.
We find that OP Nos.1 & 3 tried their level best to avoid their liability to make payment to the Complainant. Therefore, we hold that the Complainant is entitled to get relief in this case. We hold that the Complainant is entitled to get back her deposited amount of Rs.30,000/- with interest @ 6% per annum with effect from 09.07.13 till realization and compensation of Rs.10,000/- for deficiency in service and mental pain and agony. We also hold that the Complainant is entitled to litigation cost of Rs.5,000/- from the OP Nos.1 & 3.
The Complainant has not claimed anything against the O.P. No.2, ICICI Bank. Therefore, the Complainant is not entitled to get any relief against the O.P.No.2.
In the result, the complaint case succeeds.
Fees paid are correct.
Hence,
It is Ordered,
That the complaint case be and the same is hereby allowed on contest against OP Nos.1 & 3 with cost of Rs. 5,000/- and dismissed against the rest without any order as to costs.
The OP Nos.1 & 3 are directed to pay Rs.30,000/- along with interest @ 6% per annum with effect from 09.07.13 till realization of the entire amount. .
The OP Nos.1 & 3 are also directed to pay Rs.10,000/- as compensation to the Complainant for mental pain and agony and deficiency in service and also to pay Rs.5,000/- as litigation cost to the Complainant by 45 days.
The Nos.1 & 3 are directed to comply the aforesaid order jointly and severally by 45 days from the date of Final Order, failing which the Nos.1 & 3 are to pay Rs.100/- for each day’s delay and the accumulated amount is to be deposited in the State Consumer Welfare Fund.
Let plain copy of this Order be supplied to the parties concerned by hand/by Post forthwith, free of cost for information & necessary action. The copy of the Final Order will also be available in the following Website:
confonet.nic.in.
Dictated and corrected by me.
