DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,
KOLKATA-700 0144
C.C. CASE NO. __126_ _ OF ___2017
DATE OF FILING :_25.9.2017 DATE OF PASSING JUDGEMENT: 19.11.2018
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker & Jhunu Prasad
COMPLAINANT : 1. Mr. Avijit Chakraborty, son of Mr. Paresh Kanti Chakraborty of C-302 Sugam Park, 195, N.S Road, Narendrapur, Kolkata – 103, Dist. South 24-Parganas.
2. Mrs. Sumana Chakraborty, wife of Mr. Avijit Chakraborty, son of Mr. Paresh Kanti Chakraborty of C-302 Sugam Park, 195, N.S Road, Narendrapur, Kolkata – 103, Dist. South 24-Parganas.
O.P/O.Ps : 1. ABS Land Development & Construction Pvt. Ltd. at 13/B, Jatin Das Road, P.S Tollygunge, Kolkata – 29.
2. Mr. Tapan Ghosh, son of late P.L Ghosh, Director of M/s. ABS Land Development & Construction Pvt. Ltd. residing at 13/B, Jatin Das Road, P.S Tollygunge, Kolkata – 29 and also at 6, Panchkori Ghosh Lane, Silpara, Behala, Kolkata – 8.
3. Sk. Maqbul Hussain, Director of M/s. ABS Land Development & Construction Pvt. Ltd. at 13/B, Jatin Das Road, P.S Tollygunge, Kolkata – 29
4. Mr. Abhijit Chaudhury, Director of M/s. ABS Land Development & Construction Pvt. Ltd. at Flat no.1B, G-108, Gouranga Mandir Road, Baghajatin, Kolkata-68.
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J U D G M E N T
Sri Ananta Kumar Kapri, President
The dream project “Arpan Complex” of the O.Ps did not ever see the light of the day and ,therefore, the complainants demanded refund of the money paid to the O.Ps. . But the O.Ps did not pay the money and this refusal to pay the money to the complainants by the O.Ps has galvanized the complainants to file the instant case under section 12 , C.P Act, 1986.
The facts leading to the filing of the instant case may be epitomized as follows.
O.Ps i.e the developers agreed to sell and develop two cattah of land in his dream project as succinctly described in schedule to the complaint for a total consideration price of Rs. 9,20,000. The complainants paid Rs.7,05,326/- in all to the O.Ps. The project work was not commenced; possession was not also delivered to the complainants by the O.Ps within the stipulated period.. Therefore, the complainants pray for refund of the consideration price paid by him and also for compensation etc. Hence, this case.
The O.P nos. 1,2 and 4 entered into appearance but did not file any written statement and, therefore, the case is heard exparte against them.
It is only O.P-3 who has filed written statement to contest herein. But, no evidence whatsoever has been led by him and, therefore, the case is heard also exparte against him.
By filing written statement, it is contended by O.P-3 that he was the Director of the O.P company, but on 25.6.2010 he resigned his office of Directorship and transferred his share in company to O.P-2 on 30.6.2010. His resignation was accepted vide Board Resolution dated 30.6.2010 and the same was also communicated to him on 2.7.2010. Intimation of resignation was also communicated to Registrar of Company in Form no. 32 on 16.7.2010 as per provisions of statute. O.P-3 is no longer liable to the complainants and the complaint should be dismissed in limini against him.
Upon the averments of the parties, the following points are formulated for consideration.
POINT FOR DETERMINATION
- Is the O.P-3 liable to the complainants?
- Are the O.Ps guilty of deficiency in service as alleged by the complainants?
- Are the complainants entitled to get relief or reliefs as prayed for ?
EVIDENCE OF THE PARTIES
Evidence on affidavit is filed by the complainants and the same is kept in the record after consideration. They have also filed BNA which is also kept in the record after consideration.
DECISION WITH REASONS
Point no.1 :
It is the case of the O.P-3 that he has tendered resignation from the post of Directorship of the Company and that the said resignation has also been accepted by the company on 30.6.2010. It is also his version that the said resignation has been communicated to the Registrar of Company in Form no.32 on 16.7.2010 as per the provisions of statute. A photocopy of Form no.32 has been filed herein on behalf of O.P-3. It is seen there from that the O.P-3 has resigned from the post of Directorship and the said resignation has also been communicated to the Registrar of Company. The resignation was submitted by the O.P-3 on 25.6.2010 and it will take effect on and from 25.6.2010 ,because it has been accepted by the Board of Company on that date.
In the instant case, the sale agreement was executed between the parties on 20.6.2012 and the O.Ps agreed thereby to complete their project work by December, 2016 by making demarcation of plot and delivery of possession of the plot. The sale agreement took place much after the resignation of O.P-3 from the company and, therefore, the O.P-3 cannot be made liable in any way to the complainants. This point is ,therefore, answered in favour of the O.P-3.
Point no.1 & 2 :
Now to see whether the project work has at all taken its flight as per commitment given by the O.Ps to the complainants. It is in the evidence of the complainants that they paid visits several times to the site of the project and came to see that no work whatsoever had been started there. This evidence of the complainants has remained unchallenged and in the face of such evidence, it is to be seen whether the O.Ps are guilty of deficiency in service as alleged by the complainants against them.
The O.Ps are developers; they promised to develop the land as described in schedule to the complaint and to deliver the possession of the said land by December 2016. Now it is 2017 in which year the case is filed. The O.Ps have not been able to complete the project work and to deliver the possession of the land to the complainants. Such an act on the part of the O.Ps is nothing but fault and imperfection in the manner of performance undertaken by them. So, delay in delivery of possession to the complainants and inability to complete the project work within the stipulated time are gross deficiency in service on the part of the O.Ps and that is why, the complainants are entitled to get the refund of the money paid to them with compensation by way of interest.
In the result, the case succeeds .
Hence,
ORDERED
That the complaint case be and the same is decreed exparte against the O.P nos. 1,2 and 4 with a cost of Rs.10,000/- and dismissed exparte against O.P-3 .
The O.Ps, who will remain jointly and severally liable to make payment, are directed to refund Rs.7,05,326/- to the complainants with simple interest @12% p.a from the date of respective payment to the date of full realization of the said amount within a month of this order, failing which, the complainants are at liberty to recover the decreetal amount along with cost by execution of this award through the instrumentality of the Forum.
No separate order as to compensation is passed herein in views of the high rate of interest awarded to the complainants.
Let a free copy of this order be given to the parties concerned at once.
President
I / We agree
Member Member
Dictated and corrected by me
President
