Date of Filing: 08.08.2017
Date of Judgment: 30.08.2022
Mrs. Sashi Kala Basu, Hon’ble President
This complaint is filed by the complainant , Subhranil Ray, under section 12 of the C.P Act, 1986 against the O.Ps namely 1) M/s Excella Realtor Pvt. Ltd. , 1(a) Raja Saha and 1(b) Dulal Chandra Nandi, alleging deficiency in service on their part.
The case of the complainant in short is that by an Agreement for sale dated 4.10.2010 O.Ps agreed to sell the plot of land bearing no.82 in the project namely Sampurna Township at a total consideration of Rs.6 lac. The complainant paid booking amount of Rs. 1,20,000/- and the rest of the amount of Rs. 4,80,000/- was to be paid by 48 monthly installments of Rs. 10,000/-. Complainant has paid the monthly installment totaling Rs. 4,80,000/-. Complainant also consented to pay a sum of Rs. 6,000/- towards development charge. To avoid the default of monthly installment complainant deposited a total further sum of Rs. 10 lac with O.P no. 1 by way of a cheque dated 27.11.2010 for plot no.82 and for adjustment against plot no. 83 which was also purchased by him by another agreement dated 4.10.2010. But inspite of several requests for possession and registration of the deed of conveyance, the O.Ps have neither delivered the possession of the plot of land nor have executed the deed. Thus the present complaint is filed by the complainant praying to direct the O.Ps to register the deed of conveyance in respect of the plot of land bearing no.82 and to deliver possession of the same, alternatively to return the sum of Rs. 9,86,000/- paid by the complainant along with interest @18% , to pay compensation of Rs. 6 lac and litigation cost of Rs. 20,000/-.
The O.P no.1 is contesting the case by filing written version denying and disputing the allegations contending inter alia that the O.P no.1a has resigned as Director from the O.P no.1 since 11.7.2015. So, he has been wrongly and unnecessarily made a party. It is also contended that O.P no.1 has always been ready and willing to perform their part of the agreement but the complainant intentionally withheld the balance consideration of Rs. 1,13,750/-. Cheque of Rs.10 lac as alleged by the complainant was signed and issued by Sudarsan Roy , the father of the complainant in order to purchase equity shares of the company i.e O.P no.1 but he later decided to start a new company under the name and style M/s Excella Real Project (I) ltd. The complainant intentionally has suppressed the said fact. Since the balance consideration amount has not been paid by the complainant, question of handing over possession and registration of the deed in respect of the plot of land bearing no. 82 did not arise and thus the O.P no.1 has prayed for dismissal of the case.
O.P no.1(a) has also contested the case by filing separate written version contending specifically that he resigned as director from O.P no.1 with effect from 11.7.2015 and as such presently he is no way related with O.P no.1 company.
O.P no.1(b) has also filed separate written version contending inter alia that he was allured by the O.P no.1a to join the O.P no.1 company in the year 2009 but the total finance as well as the decision making process of the Board of Directors was practically made by the O.P no.1a. The O.P no.1b never took any money from any customer including the complainant. The father of the complainant Sudarsan Roy was Director of M/s Excella Real Project (I) Ltd. and in the said company O.P no.1a was the Managing Director. The complainant in effect is earning money through the land dealing business. It is further contended that the transaction in this case is a simpliciter sale of land and thus complainant is not a consumer. So, O.P no.1b has also prayed for dismissal of the case.
During the course of the trial both parties have filed their respective evidences, followed by filing questionnaire and reply thereto and ultimately argument has been advanced. BNA has also been filed by O.P no.1b and the complainant.
So, following points require determination :
- Whether complainant is a consumer under the provision of the C.P Act, 1986?
- Whether there has been any deficiency in service on the part of the O.Ps?
- Whether the complainant is entitled to the relief as prayed for ?
Decision with reasons
Point no.1 :
It has been argued by the Ld. Advocate appearing for the O.Ps that the transaction in this case is related to a simpliciter sale of land and thus the complainant cannot be a consumer as no service as prescribed under the provision of the C.P Act has been hired by the complainant. But in this context of the matter it may be pertinent to point out that the complainant has filed an agreement entered into between the parties on 4.10.2010 wherefrom it appears that it has been agreed between the parties that the O.P shall develop the land before handing over the plot being no.82 agreed to be sold. The Schedule “C” of the agreement specified the work to be done towards the development of the said project. So, the contention of the O.P that the case relates to a simpliciter sale of land cannot be accepted as the complainant had hired the service of the O.Ps to develop the land by providing of the infrastructure and the facilities described in Schedule “C”. In such a situation the case law cited by the O.P in case of Ganesh Vs. Shyam in Civil Appeal no. 331 of 2007 has no application. So, point no.1 is thus answered accordingly.
Point nos. 2 and 3:
It appears from the materials on record including the written version filed by the O.Ps that the execution of agreement on 4.10.2010 has not been denied and disputed by the O.Ps. It is also apparent from the said agreement that the complainant agreed to purchase from the O.P company being represented by its partners the O.P nos.1a and 1b the plot being no.82 at a consideration of Rs. 6 lac of which he had already paid an advance of Rs. 1,20,000/- as booking amount. The bone of contention in this case is whether the complainant has paid the rest of the amount i.e Rs. 4,80,000/- which according to the agreement was to be paid in 48 equal monthly installments of Rs. 10,000/-. The O.Ps have not disputed and denied about the payment of Rs. 4,86,250/- including Rs. 1,20,000/-. However, according to them complainant has failed to pay the balance consideration of Rs. 1,13,750/- . So, it has to be considered whether complainant has paid the said amount. The complainant has filed bank statement showing payment of Rs. 10 lac. However, on a careful scrutiny of the said document it appears that the said bank account stands in the joint name of the complainant and his father namely Sudarsan Roy. If according to the complainant the said Rs.10 lac amount was paid towards the rest of the amount for purchase of plot no.82 and also towards adjustment of the consideration price of plot no.83which according to him was bought on the same date by another separate agreement, it is not explained by the complainant as to why an amount of Rs. 7000/- and Rs. 14000/- was credited in the said account by the O.P company on 26.10.2010 and 14.11.2010. It is nowhere the case of the complainant that O.P company was liable to pay him any sum at that time.
Apart from this, even if the claim of the complainant is accepted that he had deposited the said sum of Rs. 10 lac also towards the adjustment of consideration price for plot no.83, which admittedly was Rs.6 lac, then also it is not clear as to why the complainant has paid more than settled consideration price of Rs. 12 lac. Rs. 6000/- only was required to be paid towards the development charge. Complainant has claimed that he paid Rs. 9,86,250/- each for two plots being 82 & 83 i.e. total sum of Rs. 19,72,500/- in place of actual price of Rs. 12,00,000/- which is strange why complainant would pay much more than the settled consideration price. So, the contention of the O.Ps that Rs. 10 lac was not paid towards the consideration price of the 2 plots as alleged by the complainant but cheque was issued by his father who was allegedly director of the company Excella Real Project (I) Pvt. Ltd. cannot be ignored, especially when before this Commission no explanation is forthcoming regarding crediting the amount in the joint bank account of the complainant and his father of Rs.7000/- and Rs. 14000/- as highlighted above by the O.P no.1 company.
To a question put by the O.Ps that the father of the complainant Sri Sudarsan Roy is the Director of the project M/s Excella Real Project (I) ltd. complainant has not denied the said fact and only has stated that he does not know about it, which cannot be accepted. It may further be mentioned here that when the terms of the agreement was very specific that the rest of the balance amount was tobe paid in 48 equal monthly installment of Rs. 10,000/- , it is not clear why the complainant deviated from the said terms and conditions as agreed in the agreement.
So, in such a situation we find that the complainant is liable to pay balance consideration price of Rs. 1,13,750/- and on payment of the same O.Ps are liable to hand over the possession and to execute and register the deed of conveyance in respect of plot no. 82 as per agreement dated 4.10.2010 in favour of the complainant. It may be mentioned here that at no point of time the O.Ps intimated the complainant that they had cancelled the agreement due to non-payment of the said balance sum.
Regarding the contention of the O.P nos.1a and 1b that they resigned from the company, it is settled principle of Law that even after resignation by the partner or the Directors , they would be liable for any act or default committed by the company during the relevant period of transaction if they were directors at that time.
Hence,
ORDERED
That C.C no. 465 of 2017 is allowed on contest against the O.Ps.
The O.Ps are directed to hand over the possession of the plot being no. 82 as per the agreement dated 4.10.2010 in favour of the complainant and to execute and register the deed in respect of the said plot in favour of the complainant within 3 months from this date on payment of the balance consideration price of Rs. 1,13,750/- by the complainant.
In alternatively O.Ps are directed to refund the sum of Rs. 4,86,000/- to the complainant within three months along with interest on the said sum (in form of compensation) @ 8% p.a. from the date of last payment by the complainant to till this date in default the sum shall carry further interest @ 8% p.a. till realization.
O.Ps are further directed to pay litigation cost of Rs. 12,000/- to the complainant within the aforesaid period of 3 months.
