DATE OF FILING: 5.6.2014
DATE OF DISPOSAL: 26.12.2016
Dr. N.Tuna Sahu, Member:
The complainant has filed this consumer dispute under Section 12 of the Consumer Protection Act 1986, alleging unfair trade practice and deficiency in service against the Opposite Party ( in short the O.P.) and for redressal of his grievance.
2. Briefly stated the case of the complainant is that on 22.03.2012, he paid a sum of Rs.25,000/- to the O.P. towards acquiring a share in the undivided landed property situated at Mouza: Darapangia in Tahasil: Ghumsar vide Khata No. 228, Plot No.1748/1918 measuring 1000 Sqft in Ganjam district. One of the agents of the O.P. persuaded the complainant to sign a Memorandum of Understanding (M.O.U.) and accordingly the complainant signed the M.O.U. on dated 30.03.2012. The O.P. agreed to pay fixed monthly return (lease amount) to the complainant and accordingly was paying Rs.625/- per month. The complainant adding a sum of Rs.75/- thereon had opened two pass books of Rs.500/- and Rs.200/- respectively. The O.P. issued I.R. Book No.U-9773 and I.R. Book No.U-9774 against such deposits with proper entries from April 2012 to November, 2013. The complainant being not satisfied on the performance of the O.P. requested for refund of the sum paid amounting to Rs.25,000/- on dated 22.3.2012. After much persuasions and running to the door of the O.P. the Director, Binodini Projects Limited, the O.P. issued a cheque bearing No. 404016 dated 25.11.2013 under his account number 153002000000213 for an amount of Rs.21,250/- against the total sum of Rs.25,000/- issued in favour of the complainant. On receipt of the said cheque the complainant submitted the same before the Indian Bank, Berhampur for collections. The Indian Bank, Berhampur returned the said cheque No.4047016 to the Indian Bank Overseas Bank on dated 28.11.2013 stating the reason as “Fund Insufficient” in the return memo. The complainant being harassed brought the fact to the notice of the O.P. who neither responded nor took any steps for payment of Rs.25,000/-. The aforesaid transactions of the O.P. are unfair trade practice, for which the complainant suffered from harassment causing mental agony. Alleging deficiency in service on the part of the O.P. the complainant prayed to direct the O.P. to refund Rs.25,000/- with 15% interest per annum from 22.3.2012 and Rs.30,000/- towards compensation for harassment and mental agony along with litigation cost of Rs.5000/- in the best interest of justice.
3. On 26.12.2016, the date of posting of the consumer dispute, the complainant filed paper hazira but on repeated calls found absent and not complied the order dated 17.11.2015 of this Forum. In fact, the complainant was remained absent consecutively from 22.12.2015 till 22.11.2016 except on dated 16.9.2016 and 25.10.2016 respectively. On 25.10.2016, the complainant was directed to comply the order of this Forum dated 17.11.2015 without fail. The Forum allowed the complainant a long period of more than one year to comply the order. However, in spite of several opportunities given, he does not care to comply the order of this Forum. In this case, as the complainant is neither interested to comply the order of this Forum and nor proceeded with the case properly, the Forum decided to dispose of the case on merits as per Section 13(2) (c ) of Consumer Protection Act, 1986.
4. On merits, on perusal of complain petition and Memorandum of Understanding (M.O.U) between the parties and other vital materials placed in the case record, it appears that the complainant on 22.03.2012 paid a sum of Rs.25,000/- to the O.P. towards acquiring a share in the undivided landed property situated at Mouza: Darpangia in Tahasil: Ghumusar vide Khata No. 228, Plot No. 1748/1918 measuring 1000 sqft in Ganjam district. It also reveals that as per the M.O.U., the O.P. agreed to pay fixed monthly returns (lease amount) to the complainant and accordingly was paying Rs.625/- per month and the complainant by adding Rs.75/- thereon had opened two passbooks of Rs.500/- and Rs.200/- respectively. It is also a fact that the O.P. issued two I.R. Book bearing No.U-9773 and I.R. Book No.U9774 respectively against such deposits with proper entries from April 2012 to November 2013. However, when the it was discontinued, the complainant requested the O.P. to refund Rs.25,000/- but on much persuasions the O.P. issued a cheque in the name of complainant bearing No.404016 dated 25.11.2013 vide his Account Number 153002000000213 for an amount of Rs.21,250/- against the total sum of Rs.25,000/-. On production of the said cheque, the Indian Overseas Bank, Berhampur returned it on 28.11.2013 stating the reason as “Fund Insufficient” in the return memo. Thereafter, the complainant redressed his grievance before the O.P. but the O.P. did not give any heed to his grievance and harassed the complainant. Therefore, the complainant has filed this consumer dispute with a prayer for refund of Rs.25,000/- along with interest @15% per annum from 22.3.2012 and to direct the O.P. to pay Rs.30,000/- as exemplary compensation along with Rs.5,000/- towards cost of litigation in the interest of justice.
5. On careful perusal of case record and on verification of Memorandum of Understanding (M.O.U) i.e. the contract executed between the parties, it appears that it is a case of civil nature. As per the M.O.U., both parties have mutually agreed to accrue some benefits each other as per Clauses of the aforesaid contract. According to the M.O.U. the O.P. was agreed to allot a share of undivided landed property to the complainant situated in Mouza: Darpangia in Tahasil: Ghumusar in the district of Ganjam as stated above measuring 1000 Sqft and the complainant was accordingly agreed to pay R.25,000/- towards token of acceptance. It is also found that as per the agreement the O.P. was agreed to pay fixed monthly return to the complainant during development of scheduled property and other conditions as stipulated in the MOU as discussed above. However, as per the contract, the O.P. neither paid the fixed monthly return regularly nor returned the amount of Rs.25,000/- to the complainant. So, the complainant repeatedly requested the O.P to refund the same and after many persuasions when he issued a cheque in favour of the complainant that was also returned by the bank stating ‘Funds Insufficient’.
In the above context, the only point to be decided by this Forum whether this case comes under the purview of Consumer Protection Act, 1986 and whether cheque bounce case is to be adjudicated by this Forum?
6. On careful verification of materials on the case record, perusal of Memorandum of Understanding and considering the factual aspects of the dispute, in our considered view this case comes under Contract Act and is of civil nature since as per the M.O.U. the 1st Party i.e. the O.P not performed his obligations though bound to do so as stated in the contract. Dispute for performance and non-performance of any act or omission between parties through a contract is amounts to breach of contract. When a contract is not executed properly by parties to the contract the case can be tried and adjudicated in a competent jurisdiction. We feel that this case is purely a civil nature and squarely comes under the jurisdiction of Civil Court. We are of the view that Consumer Forum can’t take over the functions of Civil Court. That apart, in fact, in this case, the complainant had paid Rs.25,000/- to the O.P and when the O.P was asked for refund, he issued a cheque which was also bounced due to ‘funds insufficient’ as evident from the ‘memo of return’ of Indian Overseas Bank, Berhampur written to the Indian Bank on 28.11.2013. Hence, this is also clearly a case of cheque bounce which can be tried in a competent jurisdiction under Negotiable Instrument Act, 1881.
7. Consequently, in the light of above discussion and considering the factual position of the case, we dismissed the complaint of the complainant due to devoid of any merits with a direction to the complainant to file such complaint before any other competent jurisdiction for adjudication of his dispute and he may avail the benefit under Section 14 of the Limitation Act, 1963 in the best interest of justice. The case of the complainant is disposed of accordingly.
8. The order is pronounced on this 26th day of December 2016 under the signature and seal of this Forum. The office is directed to supply free copy of this order to the party as per rules. A copy of this order be sent to the server of www.confonet.in for posting in the internet then the file be consigned to the record room.
