DATE OF FILING : 02-06-2010.
DATE OF FINAL ORDER : 31-12-2010.
Smt. Uma Mukherjee,
Wife of Sri Jyoti Prasad Mukherjee,
34/1, Bhattacharhee Para Lane, P.O. Santragachi,
P.S. Shibpur,
District –Howrah COMPLAINANT.
Versus -
1. Sri Sambhu Nath Mukherjee
106, Ram Sita Ghat Street, Dolpara,
P.O. and P.S. Uttarpara,
Hooghly.
2. The Manager,
U C O Bank, Jhorhat Branch,
Howrah – 711302.
3. The Manager,
Allahabad Bank,
Hindmotor Branch, 26, B.R.B.G.T. Road, Bhadrakali,
Hooghly. OPPOSITE PARTIES.
P R E S E N T
1. Honble President : Shri J. N. Ray.
2. Honble Member : Dr. Dilip Kr. Chakraborty.
3. Honble Member : Smt. Samiksha Bhattacharya.
C O U N S E L
Representative for the complainant : Shri Naba Kumar Bhowmick,
Ld. Advocate.
Representatives for the opposite party no. 1: Shri Shambu Nath Mukherjee,
Ld. Advocate.
O.P. Nos. 2 and 3 : Ex parte.
F I N A L O R D E R
The instant complaint case has been filed by one Smt. Uma Mukherjee, wife of Jyoti Prasad Mukherjee, resident of 34/1, Bhattacherjee Para Lane, P.S. Jagacha, Howrah – 711104, against Shri Sambhu Nath Mukherjee, resident of 106, Ram Sita Ghat Street, Dolpara, P.O. and P.S. Uttarpara, District – Hooghly, alleging deficiency in service.
The case of the complainant is that Harihar Mukherjee is the father in law of the complainant who is the owner of plot of land and area of 1.46 acre situated at mouza Dadpur under P.S. Amta, District – Howrah, appertained to old dag no. 542 under khatian no. 57 and part of the said land was acquired by West Bengal Government for extension of Howrah Amta Rail Line. The further case of the complainant is that one Sukumar Sau and other filed a Title Suit being T.S. No. 52 of 2005 in the Court of Ld. Civil Judge ( Jr. Division ) at Amta against Harihar Mukherjee, the father in law of the complainant. That due to old age and also for ill health Shri Harihar Mukherjee handed over a signed vakalatnama to the complainant to appoint an advocate and also empowered the complainant time to time contact with the O.P. ( advocate ) and directed her to pay him the requisite fees and expenses required by the O.P. with regard to the said case being T.S. No. 52 of 2005 before the Civil Judge, ( Jr. Division ), Amta, and accordingly she bears the said fees/ charges from her own fund. Being informed the O.P. approached the complainant that he will conduct the case as an advocate of Harihar Mukherjee, the defendant in the said T.S. no. 52 of 2005 and also further assured that he will collect the document relating to the said property. That for the aforesaid work / job the O.P. demanded the complainant to pay a sum of Rs. 10,000/- and accordingly on 10-01-2006 the complainant paid the said sum and thereafter the O.P. further demanded a sum of Rs. 18,000/- only which was also paid on 12-01-2006. The complainant Uma Mukherjee being an agent of her father in law regularly met with the O.P. at his chamber at Buxarah and asked him about the fate of the case of which the O.P. always assured her that the case is quite o.k. It is contended that the complainant further paid Rs. 15,000/- only on 06-02-2006, Rs. 6,000/- on 12-02-2006, Rs. 27,000/- on 03-05-2006, Rs. 3,600/- on 05-07-2006 and Rs. 5,000/- on 16-06-2006 to conduct the case as per demand made by the O.P. Thereafter on 27-12-2006 the complainant has paid a sum of Rs. 2,400/- only for payment of land in respect of her own land at mouza Argori. The amount was given to the O.P. Sambhu Nath Mukherjee in case against the receipt. That save and except the said sum further an accounted sum of Rs. 38,000/- only has been received by the O.P. in different dates. The O.P. has received the total sum of Rs. 1,40,000/- only from the complainant in connection with different purpose. It is alleged that subsequently the complainant came to know that her case was decreed on ex parte on 25-09-2007 for the fault of the O.P. As a result she has suffered financial loss and also suffered for mental anxiety and agony. She met with the O.P. and requested the complainant for refund of the said money being Rs. 1,40,000/- within a short period. The O.P. then issued a cheque for the said sum of Rs. 1,40,000/- only in the name of the complainant for cheque no. 272484 dated 25-04-2008 drawn at Allahabad Bank, Hind Motor Branch and said cheque was presented to Banker UCO Bank JHT Branch and it was dishonoured with endorsement insufficient fund. So the complainant met with the O.P. and demanded the said amount but O.P. assured her that they would pay back the amount within a short period. But despite of several requests the O.P. did not refund the same and misbehaved her for which he lodged G.D. with the concerned P.S. Due to latches of the O.P. the cause of action arose and the complainant has compelled to file the case against the O.P. for refund of the sum of Rs. 1,40,000/- only with interest at 18 percent per annum and also for compensation of Rs. 50,000/- along with litigation cost.
Notice was duly served upon the O.P. Sambhu Nath Mukherjee who appeared and contested the case by filing written version stating that the complaint is absolutely a misconceived petition and is not maintainable either in law or in facts. It is stated that the complainant is not at all a consumer within the meaning , scope and extend under the Consumer Protection Act. It is further contended that the O.P. is not aware any such type of case as referred being T.S. No. 52 of 2005 pending before the Civil Judge, ( Jr. Division ), Amta, and the documents referred are not also connected with this case. It is also denied that there is no contract with the complainant or father in law relating to any matter as alleged or at all and also denied that the O.P. was ever residing at C/o. Saroj Lahiri, Buxarah 1st Bye Lane, P.S. Jagacha, Howrah, and the O.P. ever introduced himself at any point of time as he practicing advocate in Judges Court Howrah. It is also alleged that any power of attorney and/or empowered was given by Harihar Mukherjee in favour of his daughter in law due to his old and ill health and the documents is forced spurious and manufactured documents and the same has been prepared for the purpose of the case and the documents is not related to the T.S. 52 of 2005, Civil Judge, Junior Division, Amta Court and the he was ever appointed the said case. It is stated that the complainant with the active assistance of Swapan Kr. Mukherjee and her anti social elements and forced to allowing to hand over the said cheque otherwise the O.P. be murdered and looted his entire house articles and the O.P. lodged a written complaint of such incident before the local police station at Uttarpara. It is further contended that no case has been made out against him and as such it is prayed for rejection of the case with compensatory cost.
Heard on both sides at length excepting O.Ps. no. 2 and 3 who did not contest the case.
In support of the case both parties filed written brief notes of argument and also relied on some documents filed with the record.
Point for determination is that whether the complaint petition is liable to be allowed or not Or that whether there was any deficiency in service on the part of the O.P. in regard to the complaint
DECISION WITH REASONS :
In order to substantiate the case the complainant has filed certain xerox copy of documents. On the other hand the O.P. also filed documents. The complainant has to prove her case of her own materials which should be considered for alleging deficiency in service on the part of the O.P. Firstly we have to consider whether the complainant is entitled to get relief as per his complaint petition. It appears from the case record that the complainant Uma Mukherjee, the daughter in law of Harhar Mukherjee on whose behalf the complaint petition was filed. The complaint petitin was filed before this Forum as on 05-05-2010. The complainant also filed a xerox copy of the power of attorney duly signed by Harihar Mukherjee wherein Harihar Mukherjee has empowered his daughter in law Smt. Uma Mukherjee, wife of Shri Jyoti Mukherjee to look after the case no. HDF 52 of 2005 which is pending before the Civil Judge ( Jr. Division ) at Howrah and also empowered to contact with the advocate Shri Shambhu Nath Mukherjee the O.P. of this case and also to pay the advocate requisite fees, charges and expenses towards the said case from her own fund and as he has no income at all and also for his ill health. Complainant Uma Mukherjee, daughter in law of Harihar Mukherjee also filed a xerox copy of General Power of Attorney being notarized as on 21-05-2010. From the said document we find there is no whisper that the power of attorney was given by Harihar Mukherjee in favour of Uma Mukherjee to look after the case being no. 52 of 2005. Thus it is crystal clear that the document was prepared by Harihar Mukherjee after filing of the case. Further the document filed by the complainant showing empowerment to look after the case being T.S. No. 52 of 2005 was duly signed by Harihar Mukherjee on 23-04-2010. But there is nothing to show on record on record that the O.P. Shambhu Nath Mukherjee was engaged to contact the case bearing no. 52 of 2005. There is no iota of evidence to show that he was actually engaged to contact the case. Further complainant has stated that he has paid the fees of the advocate along with allied charges to charges to Shambhu Nath Mukherjee does not disclose that he was paid in connection with the case bearing no. 52 of 2005. The xerox copies of the receipt only indicate that one Shambhu Nath Mukherjee granted receipt in connection with the case at Amta Court. But it appears that Uma Mukheree has got her personal case at Amta. From the annexure B we find that a sum of Rs. 10,000/- was granted in favour of Uma Mukherjee on 10-01-2006 not with the concerned of the alleged complaint case. The documents also do not indicate on what purpose the said money was received. No such mentioned in the said documents. The documents which were produced by the complainant are not at all connected with the instant complaint matter. Moreover, the father in law Harihar Mukherjee of the complainant has not been examined to support the case.
Having heard on both sides and also considering the materials on record we do not find that there is any merits in the case and the complaint case is liable to be dismissed on the ground that complaint petition is devoid any merits. The complainant Uma Mukherjee has failed to substantiate her case as she is empowered to look after the case on behalf of her father in law Harihar Mukherjee before the Civil Judge at Amta in connection with T.S. 52 of 2005. . The complainant must have to prove her own case and she cannot legs upon the wings of the O.P.
In the facts and circumstances we are of the view that the complainant failed to substantiate her case as alleged against the O.P.
In the result the complaint petition fails.
Points under consideration are accordingly decided.
Hence,
O R D E R E D
That the complaint petition be dismissed on contest against the O.P. no. 1 but without cost in the facts and circumstances of the case and ex parte against O.Ps no. 2 and 3.
The case is thus disposed of.
Supply the copies of the order to the parties, free of costs.
