Order-14.
Date-20/04/2015.
Complainant Mr. Sudip Banerjee by filing this complaint has submitted that ops are closely related with the complainant within their areas and they offered lucrative commitment about maturity against investment with safe and secure money back or in lieu of that certain facilities and being impressed by their papers, documents and version and getting such assurance from the ops and being allured by the ops, complainant deposited about Rs. 3,00,000/- and odd and accordingly op issued cash voucher including allotment numbers and same were deposited on different dates from 2009 to 31.12.2013 and against that there was such a clause, complainant shall have to get interest or debentures issue etc. or monthly interest. But subsequently it is found that ops did not pay the monthly interest or other benefit against such deposits and in some cases even after maturity period, op did not release that maturity amount and thereby complainant requested the ops to return the entire amount with interest. But they agreed to pay, but ultimately it is found that they avoiding and did not act honestly and subsequently complainant and other depositors found that they are not in the market closing down their office and when complainant and other depositors realized that they have been cheated and deceived by the ops, though complainant as a consumer entitled to get back the same, complainant and other depositors went to the house of ops and expressed that the matter shall be informed about disbursement.
Ultimately they avoiding and complainant is confirmed that by adopting unfair practice, they deceived the complainant with other depositors for which cause of action of the complainant arose on and from 31.03.2014 and complaint was filed for redressal and for directing the ops to pay the total sum of Rs.3,21,673/- plus compensation and litigation cost etc. It is specifically mentioned in the complaint that details of allotment and cash voucher numbers are noted in the schedule of the complainant which were issued by the ops in favour of the complainant against the deposited of the said amount.
Fact remains that ops are six in number, notices were sent to all but most of the notices were unclaimed and in case two or three cases, notices were returned with note -Door Closed-, only Prabir Kumar Mukherjee, Pralay Kumar Saw, Soumen Mallick and Infinity Realcon Ltd. &Ors. received the notices but they did not turn up to contest this case and ultimately as per order of this Forum complainant has filed the publication of Aajkal Patrika, Kolkata dated 25.01.2015 directing to all the ops to appear before this Forum. But they did not turn up and also they did not appear to contest this case for which the case is heard exparte. The detail of allotment numbers as issued by the ops to the complainant on receipt of cash are duly noted in the complaint having 10 allotment numbers which were issued in between 2009 to 31.12.2013.
On the other hand Op No.5 only submitted a written version alleging that this is case not maintainable against him and op no.5 is no way related with the said company and op no.3 is the Director of Life Care Agro Projects India Ltd. who took over the control of the Infinity Realcon Ltd. and the group of companies without any transfer and holding of share of the group by putting their best effort to revive the financial crunch of IRL Group and on or about 04.11.2013 a Board of Directors Meeting of IRL Group was held with regard to such change of directorship and in the said meeting it was resolved that the answering op along with two others were appointed as Director of the Company w.e.f. 04.11.2013 and the existing Directors i.e., the op nos. 2, 3 & 4 resigned from their directorship and op no.5 was authorized to file Form-32 to the Registrar of Company accepting resignation of the op nos. 2, 3 & 4 and pursuant to such Board Resolution, on or about 04.11.2013 the answering op filed Form-32 before the Registrar of Company.
But due to some statutory and regulatory violation and also in the assets as mentioned in the said MoU dated 02.11.2013, were not free from all encumbrances and litigations and the debenture holders, certificate holders, shareholders, investors and depositors of the said IRL were not ready to allow any additional time to the said Life Care Agro Projects (I) Ltd. and situation was beyond control for any possible arrangement and said Life Care Agro Projects (I) Ltd. and expressed their willingness to terminate said MoU dated 02.11.2013 and accordingly op no.2 being the executant of the said MoU dated 02.11.2013 on behalf of the said IRL Group executed a declaration and cancelled the said MoU dated 02.11.2013.
In pursuant to such cancellation of MoU, on or about 25.04.2014 the said op no.2 on behalf of IRL Group declared that the answering op during his Directorship period in the IRL Group put in best his effort to revive the op no.1 company and however such situation is not favourable for a possible fail out and the answering op has not collected any fund from public in the name of the said IRL Group but minimized the liability of IRL Group to some extent and for that purpose op invested Rs. 5 crores by way of payment to the creditors and investors for which IRL Group of Companies are bound to pay the said amount by executing Deed of Conveyance with regard to the immovable properties situated at different places in the name of IRL Group and op no.2 on behalf of IRL Group also discharged the answering op along with said two others from the IRL Group.
In terms of said declaration, op expressed his intention by writing letters to the op nos. 2, 3 and 4 and tendered his resignation from the Directorship of IRL Group to them and appointed them as Executive Directors of the op no.1 (IRL) and also filed Form-12 to the Registrar of Company accepting resignation of the answering op. Therefore it is transpired that as on date the answering op-s has no liability, responsibility and attachment with the IRL Group of Companies and practically op nos. 2, 3 and 4 are liable to make payment of such maturity amount and liabilities presently and in future. Therefore, the answering op respectfully submits that the Ld. Forum may be pleased from the op no.5 from the present proceeding and further denied all other allegations.
Decision with reasons
On proper scrutiny of the complaint including the documents and particularly the certificates issued by the Infinity Realcon Ltd. & Ors. a Company incorporated under Companies Act, 1956 having registered and administrative office at 176, A.J.C. Bose Road, 4th Floor, Kolkata-700014 issued letter of allotment against such depositors of Rs. 12 lakhs and odd.
Truth is that allotment letters were issued from 2009 to 31.12.2013 and other allotment were also issued and same are also in details noted in the complaint and most of the cases duration was for the year w.e.f. 2012 to 2014 and practically after considering the letter of allotment, it is clear that in all the cases, maturity period already over prior to 31.03.2014.
But fact remains that maturity amount has not been paid by the op, though op received the said amount Rs. 3,00,000/- lakhs by issuing such certificates and allotment letters. But same are not being returned or reimbursed after maturity period and no doubt the complainant faced financial loss and when ops refused to pay the same, complainant was compelled to file this complaint before this Forum for redressal. Fact remains that ops got every chance to contest the case, but having the complainant-s allegation they did not appear before this Forum.
Most interesting factor is that even after receipt of notices by op no. 3 or 4, they also did not turn up. But it is proved that all those ops jointly started such sort of business by forming a company and published notification allured the public and in fact to get such relied, complainant being assured deposited the same. But ultimately he has been deceived by the ops and no doubt ops by adopting unfair trade practice, deceived the complainant and truth is that complainant is a consumer under the op and in such circumstances, complainant-s allegation against the op is well proved and complainant is entitled to get such relief as prayed for.
In fact that op no.5 by filing written statement submitted that on the basis of Memorandum of Understanding he introduced himself as Director and that MoU was executed in between the op nos. 2, 3 and 4 with op no. 5. It is fact that op no.5 became the Director of the said Company and invested some amount and thereafter when he realized that it would not be possible to control the shareholders, investors, debentures and certificate holders. Then he intended to resign as Director.
But most interesting factor is that op tried to convince by producing a copy of Memorandum of Understanding (MoU) dated 02.11.2013 that it was executed in between the op nos. 2 and 5. Thereafter when op found several complications to run the said business on behalf of the Infinity Realcon Ltd. Practically he prepared some other documents only to release him free from such liability and ultimately tried to convince that he is not the Director of the Company. But from his own documents, it is found that Form-32 Pralay Kumar Saw is also shown as Director of the company which is admitted by the complainant.
Another factor is that resignation of op nos.2, 3 and 4 as Director is not accepted by the company. Further Sujit Maitra was also acted as Director of the company and Sujit Maitra also as Director to that effect there was a declaration and Pralay Kumar Saw op no.5 made a declaration on 02.11.2013 that Pralay Kumar Saw, Sujit Kumar Mitra are free from all duties and responsibility and they are free to act as MoU stand cancel of the consent of both the parties and IRL Group for no demand or objection or against transfer and Life Care Agro Projects (I) Ltd.
But in the eye of law such sort of declaration is not tenable in the eye of law in view of the fact that there is no Board of Director-s meetings and there is no Resolution of Board of Directors. So, such sort of declaration is found prepared by the op no.5 to clear him from his liability and in fact op nos. 2 to 5 managed to procure some letters. But same are not on the basis of resolution of Board of Directors of IRL and for which the document produced by the op no.5 are in the eye of law not a legal document in support of cancellation of MoU and released of Directorship of the op no.5 from the IRL Company for which we are convinced to hold that the present op no.5-s name cannot be deleted from the complaint and at the same time, op no.5 cannot be exempted from his liability also in respect such sort of deceitful manner of act for deceiving the customer in such a manner.
On careful consideration of the entire materials and conduct of the ops and their attitude even after receipt of the notices and further notices, we are convinced that Infinity Realcon Ltd. is a company which has deceived the complainant and other depositors in such manner and they are cheated the people at large and complainant is one of them and no doubt ops deceived the complainant by adopting unfair practice. So, complainant is entitled to get a decree as prayed for.
In the result, the complaint succeeds.
Hence, it is
ORDERED
That the complaint be and the same is allowed on contest against op no.5 and exparte against other ops jointly and severally with cost of Rs. 10,000/-.
Ops are jointly and severally hereby directed to refund the entire maturity amount of Rs. 3,21,673/- and also interest over the same at the rate of 10 percent p.a. commencing from March, 2014 and for adopting unfair trade practice, harassing the complainant and also for deceiving the complainant in such a manner and further for causing mental pain and agony and sufferings, ops jointly and severally shall have to pay compensation of Rs. 1,00,000/- and accordingly ops jointly and severally are directed to pay a total sum of Rs. 4,31,673/- to the complainant within 15 days from the date of this order, failing which for non-compliance of the Forum-s order, penal interest shall be assessed at the rate of Rs. 500/- per day till full satisfaction and if it is collected, it shall be deposited to this Forum.
But even after if it is found that ops are reluctant to comply this Forum-s order, in that case, proceeding u/s 27 of C.P. Act 1986 shall be started against them for which further penalty and fine may be imposed.
