JUSTICE J.M. MALIK 1. Most of the consumers, who apply for an apartment or a flat from private colonisers, are to repent and to bark up the wrong trees. It is usually seen that the colonisers leave no stone unturned to make profits for themselves at the expenses of the consumers. It is a matter of concern, hether, such like private colonisers should be allowed to succinctly thrive in the progressive modern countries, like India?. Succinctly stated, private builders should be allowed, but to construct colonies, is the work of the Government itself. All the constructions should be made by the Government, as in USA and U.K. 2. The main complaint was filed in this Commission on 01.10.1999. Thereafter, it was amended on 13.05.2013. 3. The facts germane to this case of the complainants are these. Mrs. Asha Dayanidhi and Mr.B.R.Dayanidhi, wife and husband, respectively, entered into an agreement with M/s. Alsa Constructions & Housing Ltd. & Ors., i.e. Opposite party Nos. 1 to 3, for construction and allotment of Apartment no.103 at Alsa Arbour, (Municipal No.103, Door No.40, Sl No. 37, 10th Cross, Ganganagar North, Bangalore) and 56.36% undivided interest in the land. The complainants paid a sum of Rs.11,06,875/-, out of the total consideration of Rs.25,30,000/-,to the Opposite party No.1. Thereafter, they paid upto Rs.18,05,205/-. The rest of the amount was paid from complainants own pocket. Assurance was given to the complainants that the apartment would be constructed within two years. All the payments were made either by cheques or Demand Drafts, as under :- Sl.No Date Amount (In Rs.) & Mode of payment 1. 07.08.1995 2,53,000/- cheque paid by complainant to OP 2. 04.09.1995 2,53,000/- from Citibank for OP (on a/c of complainant) 3. 27.09.1995 4,55,000/- DD paid by complainant to OP 4. 30.09.1995 51,000/-- from Citibank for OP (on a/c of OP) 5. 10.10.1995 94,875/- from Citibank for OP ((on a/c of OP) 6. 11.11.1995 94,875/- DD paid by complainant to OP 7. 13.12.1995 94,875/- DD paid by complainant to OP 8. 30.01.1996 94,875/- DD paid by complainant to OP 9. 14.02.1996 94,875/- DD paid by complainant to OP 10. 19.06.1996 2,58,160/- DD paid by complainant to OP 11. 20.08.1996 60,670/- cheque paid by complainant to OP 4. On 02.07.1999, the complainants issued a legal notice intimating the OPs that the complainants had taken loan of Rs.12,88,860/- from Citibank @ 18% and from other Financiers. Till 30.06.1999, the complainants paid the interest in the sum of Rs.11,99,655/-. The property was not constructed or handed over to the complainants till 08.10.1999. The complainants were compelled to file the instant complaint, seeking Rs.30,04,860 (which included Rs.18,05,205/-), along with interest @ 18%, and Rs.5,50,000/-, as compensation and costs. 5. On 25.09.2000, the Honle Madras High Court directed that PW1 is to be wound up. In the meantime, PW1 transferred the construction rights to one Mr.K.C.Chandrasekhar Raju, OP4. On 24.02.2002, OP4 entered into a development agreement with Mr.K.M.Jayaram (owner of the land) and took over the rights and liabilities of OP1. 6. On 30.01.2003, the Citibank offered a ne-time settlement to the complainants at Rs.10,09,959/-. On 17.10.2003, the OP4 issued a letter to the complainants calling upon them to remit an amount of Rs.1,00,000/- towards electricity charges and copy of said letter has been annexed as Annexure A, which runs as follows:- r.Dayanidhi September 17,2003 No.367, 11th Cross 11th Main, Jayanagar Bangalore 560 011 Dear Sir, Sub : Apartment No.103, First Floor, Alsa Arbour. Further to the discussions the undersigned had with you, you are requested to remit an amount of Rs.1,00,000/- (Rupees One lakhs only) towards DPTCL & BWSSB charges. The aforesaid payment shall be made by DD favouring K.C.CHANDRASHEKHAR RAJU, payable at Bangalore. Kindly expedite the amount immediately. Thanking you, Yours faithfully, Sd/- For (K.CHANDRASHEKAR RAJU) 7. On 24.09.2003, OP4 issued a letter to the complainants calling upon them to pay a further sum of Rs.4,75,000/- and further assured them that the possession of the flat without completion of internal works would be handed over to the complainants, copy of the said letter has been annexed as Annexure B. 8. On 20.01.2005, OP 4 cleared the outstanding loan amount of the complainants with Citibank, vide Annexure C, which is, as under:- e: Citibank Instant Loan Ac\/c. No.: 300678. We acknowledge receipt of Rs.10,00,000/- (Rupees ten lakhs only), towards the full and final settlement of the loan account referred to above. The account stands closed and there are no further claims on the account. All legal proceedings will stand withdrawn. The original property documents will be released within 30 working days from the realization of the instrument. Sd/- For Citibank N.A. 9. Again, legal notices were sent on 31.10.2007, by the complainants to OPs 1&4. OP 4 responded vide legal reply dated 22.12.2007, admitting that he had taken over the Project by clearing the entire outstanding dues of OP1 with Citibank and had completed the Project. However, he categorically refused to acknowledge the claim of the complainants. Copy of the notice and reply have been placed on record, marked as Annexure D (colly). 10. The following prayers were made in the complaint. The complainant made a total revised claim of Rs.53,60,638/-, which includes interest @ 18% (on Rs.5,95,480/- from 20.08.1996 to 30.05.2012) amounting to Rs.16,88,186/- and Rs. 7,68,099/- (the interest paid to Citibank from 04.09.1995 to 30.04.1999) and Rs.18,08,873/- (interest on Rs.7,68,099/- from 01.05.1999 to 31.05.2012). 11. The complainants also brought to the notice of this Commission about the fact of taking over of the Project by OP4 and the application for amendment and inclusion of OP4 was filed before this Commission, which was allowed. OP4 was served for 15.07.2011 and was proceeded against ex-parte vide order dated 15.07.2011 as he did not appear vide A.D.Card. This Commission, vide order dated 24.08.2011, set aside the ex-parte order, qua, the OP 2 & 3. However, ex-parte against OP4, still subsists. 12. OPs 2 & 3, who are the Managing Director and Director of OP1, listed the following defences in support of their case. M/s. Alsa Construction and Housing Ltd., a company, incorporated under the Companies Act, 1956, is under liquidation and an Official Liquidator has been appointed by the Honle High Court of Madras to take over the assets and affairs of the Company. OPs 2 & 3 are not personally liable. 13. We have heard the counsel for the parties and perused the written statement filed by the opposite party Nos. 2 & 3. It is well settled that no action can be taken against the OPs 2 & 3, who cannot be held personally liable for this loss. Only the Company can be held responsible for the omissions and commissions of their activities. Consequently, we hereby dismiss the complaint against OPs 2 & 3. 14. Now, we turn to the case of OP1. There were no sufficient funds, due to which OP1 is under liquidation. In that case, the complainants should have made a claim before the Liquidator and he will decide for how much amount, they are entitled to. There is another aspect which is to be considered. If OP1 is not under liquidation, how the construction and development rights were transferred to one, Chandrasekhar Raju, OP4?. No clarification is forthcoming. In case, OP1 is not under liquidation, in that event, the above said procedure would not be followed and OP1 be liable at par with OP4. 15. Even if OP1 is under liquidation or not, in that event, it will be jointly and severally liable with Mr.Chandrasekhar Raju, OP4. The agreement between OP4 and K.M. Jayaram (owner of the land) did not see the light of the day. It is clear that Mr.K.C.Chandrasekhar Raju, OP4 has stepped into the shoes of OP1. He is responsible for all the rights and liabilities of OP1. Moreover, privity of contract between the complainants and OP4, stands established vide letters dated 24.09.2003 (Annexure B), 20.01.2005 (Annexure C) & reply to legal notice, dated 22.12.2007 by OP4 (Annexure D) (colly). In the said Reply, OP4 denied all these allegations, but in para 2, it is stated as under :- ur client represents that our client, who had taken over the project by clearing the entire outstanding of the ALSA Constructions and Housing ltd., of their dues, with the Citibank and had completed the project and as such the transaction between with your client and ALSA Construction and Housing Ltd., has got nothing to do with our client and question of indemnifying any debt or dues of the ALSA Construction and Holding ltd., to your client by our client does not arise at all 16. OP 4 cannot be absolved of his liability. He has already received the consideration for the same. Though the role of OPs 1 to 3 was not highlighted, their silence on this point is pernicious. There is all likelihood that OP1 is working in cahoots with OP4. 17. The case against OPs 1 and 4 stand established. They are jointly and severally liable for the above said deficiency in service. This is unfair trade practice, for which both OPs, i.e., 1 & 4 are liable. Counsel for the complainants contended that the complainants would be happy to get their money back. Consequently, we hereby direct that OPs 1 & 4 would pay a sum of Rs.5,95,480/-, with interest @ 9% p.a., from the date of payment, till its realization. Complainants are also entitled to interest paid to Citibank during 04.09.1995 to 30.04.1999 and 01.05.1999 to 31.05.1999. OPs 1 & 4 will also pay reimbursement amount towards interest @ 9% p.a. from the date of its accrual till it was imposed. Both OPs 1 & 4 are jointly and severally liable, as stated above. The statement of accounts may be produced before the Executing Court. The complaint is loosely drafted. The namby pamby pleas lead the Commission nowhere. No statement of accounts from the Citibank showing how much interest was paid by the complainants, saw the light of the day. The complainants have failed to buttress their evidence. 18. The complainants have also demanded compensation in a sum of Rs.5,50,000/- for harassment, mental agony, etc. It appears to be on higher side. Keeping in view of the facts and circumstances of this case, we grant compensation in the sum of Rs.3,00,000/-. The entire amount be paid, within 90 days from the date of service of this order, else, it will carry interest @ 9% p.a., till realization. The matter stands disposed of, in the above terms.