Orissa

Rayagada

CC/15/47

Sri Babula Sahu, S/o: Suryanarayana Sahu, - Complainant(s)

Versus

Sri Sirju Ram Thaker, S/o: Suryanarayana Sahu - Opp.Party(s)

Self

08 Mar 2018

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL    FORUM, RAYAGADA,

STATE:  ODISHA.

C.C. Case  No. 47/ 2015.                                 Date.      8  .3. 2018.

P R E S E N T .

Dr. Aswini  Kumar Mohapatra,                   President

Sri GadadharaSahu, .                               Member.

Smt.  Padmalaya  Mishra,                          Member

Sri  Babula  Sahu,  S/O:  Suryanarayana  Sahu,  At/Po:  Tikiri,  Dist: Rayagada, State:  Odisha.                                                                                                                                                                                                                                                                               …….Complainant

Vrs.

Sri   Sirju   Ram  Thakar,  S/O: Godhiram Thakar, Budeli, Kanker, Chatisgarh.                                                                                                                                  .…..Opp.Parties

Counsel for the parties:                         

For the complainant: - Self..

For the O.Ps  :- Exparte.

                                J u d g e m e n t.

        The  present disputes emerges out of the grievance raised in the  complaint petition filed by the above named complainant alleging deficiency in service  against  afore mentioned O.Ps for  non payment  of  cheque bounced  amount a sum of Rs. 50,000/-  to the complainant..

 

On being noticed  the O.Ps neither entering in to appear before the forum nor filed their  written version inspite of more than  18 adjournments has been given  to them. Complainant consequently filed his memo and prayer to set exparte of the O.Ps.  Observing lapses of around 2 years  for which the objectives  of the legislature of the C.P. Act going to be destroyed to the prejudice of the interest of the complainant.  Hence after hearing  the  counsel for the complainant set the case  exparte against the O.Ps. The action of the O.Ps is against the principles of  natural justice as envisaged  under section  13(2) (b)(ii) of the Act. Hence the O.P. set exparte  as the statutory period  for filing of  written version was over to close the case with in the time frame permitted by the C.P. Act.

          We therefore constrained to  proceed to dispose of the case, on its merit.  Heard from the learned counsel for the complainant.   We perused the complaint petition and the document filed by the complainant.

 

 

         FINDINGS.

          Now  the issues to be determined by this forum are:-

          Whether this forum  has   jurisdiction to entertain the complaint under the C.P. Act, 1986  ?

While addressing  the issue  we would like to refer the citations.  It is held and reported  in CPR-2011(4) page No. 482   the  Hon’ble  National commission,  where in observed  “Consumer forum  can not adjudicate  disputes without  addressing to the basic issues”.  In  another decision  reported in CPJ 2010(1) page No. 136 where in the Hon’ble  State Commission, New Delhi  observed  “Forum should decide the dispute of jurisdiction  first, application kept open to be decided later”

At this stage, it is appropriate to quote Section  2(1)(d) of C.P. Act,  which reads as follows:-

            “(d)”Consumer” means any person who-

1. Buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any  system of deferred payment   and includes any user of such goods other than the person who buys   such goods for consideration paid or promised or partly paid or partly  promised , or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
2. Hires or avails of any services for a consideration which has been paid or promised or partly paid and partly  promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails  of the services for consideration paid or promised, or partly paid and  partly promised, or under any system of deferred payment, when such services are availed  of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose”.

 

Admittedly, in the case at hand, the complainant has not availed any service nor purchased any goods from the O.P. for any consideration, as such, he cannot be a ‘consumer’ under them. Only because the Consumer Protection Act is a social benefit oriented Act, it cannot besaid that any body who files a case before the District Forum,as the case may be he can bea ‘consumer’.

                       

On perusal of the  complaint petition this  forum observed  that the matters relating to the cheque bounce cases comes   U/S-138    of  Negotiable instrument Act  that  will not come under the purview of the C.P. Act, 1986.  Where there is a special remedy is available to the parties under Negotiable Instrument Act  provided by the legislature to the complainant  the forum did not inclined to invoke its jurisdiction illegally  to adjudicate the matter(Supra).  Hence  this forum has lack of jurisdiction to entertain the  above dispute  and adjudicate  the same under the provisions  of the C.P. Act, 1986.  The case is not maintainable in view of the above discussion.

            It is  suffice  to say  here that The C.P. Act does not provide for application of evidence Act or CPC. A consumer  dispute is to be  decided on the yard stick of reasonable probabilities  on the basis of facts brought  on record  by the parties  (Geeta Jethani Vrs. Air Port authority of India and others 2004  CPT  1048 (N.C).  The  parties  are at their liberty  to agitate  their grievance before the appropriate court of law and not before this forum  being  nullified the grievances of the complainant. We  do not  think  proper to go  into merit of this case.

Hence, the claim of the   complainant can not be accepted under the provisions of the C.P. Act. It is open to  complainant   ordinary remedy to approach proper forum.       

So  to meet the  ends of justice    the following order is passed.

 

ORDER.

            In resultant the complaint petition stands  dismissed. The complainant  is free to approach the court of competent  having  its jurisdiction.   Parties are left to bear their own cost.  Accordingly the case  is  disposed of.

            It is held and reported  in SCC 1995(3) page No. 583  the Hon’ble Supreme Court   in the case of Laxmi Engineering works Vrs. P.S.G.Industrial Institute where in observed   “The time spent before consumer forum shall be set-off  by  the  authority, where the proceedings are taken up, as per provision of Section-14 of Limitation Act.

Dictated and corrected by me

Pronounced on this                 8 ^th.   Day of   March,  2018.

 

                Member.                                             Member.                                                             President