Date of filing : 13.10.2017

Judgment : Dt.24.6.2019

Mrs. Sashi Kala Basu, Hon’ble President

            This petition of complaint is filed under section 12 of C.P.Act, 1986 by Madhuparna Patra alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) Shribhumi Realty Pvt. Ltd., (2) Gopal Malakar, (3) Mr. Soumitra Roy, (4) Mr. Biswabrata Maity, (5) Mr. Sagar Ganguly and (6) Mr. Samit Dutta.

            Case of the Complainant, in short, is that the OP No.1 is a real estate company which performs buying, selling and renting and operating of self-owned or leased real estate. OP No.2 to 6 are the Directors of the OP No.1 and have utilized the funds of company at different point of time, to their benefits. On seeing the wide publication through internet advertisement, Complainant got in touch with a representative of the OP No.1 for purchasing one flat under MIG Category in the project (Shribhumi) and booked the same on payment of sum of Rs.1,25,000/- by two cheques, in favour of the Shribhumi Realty Pvt. Ltd. on payment of Rs.1,25,000/-, towards confirmation, declaration form and a money receipt was issued by the OP No.1. Complainant further paid an amount of Rs.50,000/- for an open garage through cheque and also paid further amount of Rs.3,31,000/- to the OP Company, who issued money receipts dated 14.7.2012, 3.4.2012 and 02.07.2014 respectively. So, Complainant paid Rs.5,06,000/- in total. An indenture for sale was also executed between the parties on 02.07.2014. It was agreed that the said flat would be completed and handed over in the beginning of the year 2016 but, till date the project has not been completed and the project site is completely vacant. So, finding no progress, the Complainant by a letter dt.31.3.2017 through her Ld. Advocate, addressed to the OP No.1 asked for refund of the money. But, in spite of service of notice, OPs did not refund the amount to the Complainant. OPs have resorted to unfair trade practice. So, the present complaint has been filed praying to direct the OPs to jointly and severely return Rs.5,06,000/- along with interest @ 10%, to pay compensation of Rs.1,00,000/- for causing mental harassment and agony and Rs.20,000/- towards litigation cost and other incidental charges.

            Complainant has filed receipts showing payment of Rs.5,06,000/-, and the copy of the notice sent through Ld. Advocate asking for the refund of amount of Rs.5,06,000/- along with interest .

            The case has been contested only by OP No.6 denying the allegations made in the complaint petition contending specifically that due to personal problem and inconvenience, he sent the resignation letter to the Board of Directors of OP No.1 on 23.6.2014 and the resignation of the OP No.6 has been accepted by the OP No.1 in a Board Meeting held on 1.7.2014. The job of the OP No.6 was to monitor the field works and he was never in charge of the financial status nor he was share-holder of the Company. Since he was merely an agent, he was not responsible for the affairs of the Company and thus this case is not maintainable against him. On perusal of the record, it appears that other OPs did not take any step and so the case proceeded ex-parte against them.

            During the course of evidence, the contesting OP and the Complainant have adduced their respective evidences by filing the affidavit-in-chief followed by filing of the questionnaire and reply thereto.

            At the time of argument, Ld. Advocate appearing on behalf of OP No.6 has argued that as he was not a shareholder but a mere agent of the Company, he is  not liable for any act of the OP Company. He has also argued that as OP No.6 resigned, he will not be responsible.

            So, the following points require determination :

            1) Whether there has been any deficiency in service on the part of the OPs?

            2) Whether the Complainant is entitled to the relief as prayed for?

Decision with reasons

            Point No.1 & 2 –

            Both the points are taken up together for discussion in order to avoid repetition. Claim of the Complainant that he had booked the flat has not been disputed and denied by the contesting OP. However, in order to substantiate his claim that he booked a flat under MIG Category in the said project of Shribhumi and has paid Rs.5,06,000/-, in total, Complainant has filed three receipts issued by the OP No.1 dt.14.7.2012, 03.04.2013 and 01.07.2014 respectively.

In this case, Complainant has also filed the agreement entered into between the parties dated 2.7.2014, wherefrom it is evident that out of total consideration of Rs.8,25,000/-, Complainant has paid Rs.1,25,000/- & Rs.3,31,000/- respectively. Even though in the memo of consideration, there is no reflection about Rs.50,000/- but Complainant has filed money receipt being No.1349G dt.3.4.2013 to substantiate the said payment. It is claimed by the Complainant that till date project has not been completed by OP and project site is lying vacant.

So, these documents filed by the Complainant sufficiently establish that the Complainant had made the part payment towards the flat, but the OPs have neither delivered her the flat as agreed nor have refunded the amount of Rs.5,06,000/-. The claim of the Complainant is also established as there is absolutely no contrary material before this Forum to counter or rebut the claim of the Complainant.

            So far as the OP No.6 is concerned, it is apparent that the agreement was executed between the Complainant and the Company on 02.07.2014, which is after the date of resignation by the OP No.6. He resigned on 23.6.2014 and it was accepted in a board meeting on 01.07.2014. Complainant herself has stated in the petition of complaint that the cause of action in the instant case arose on 02.07.2014. If that be so then there cannot be any dispute that as OP No.6 was not involved with the OP Company during the relevant time, no liability can be attributed upon him and thus he is not liable to refund any money as prayed by the Complainant.

In view of the discussions as highlighted above, OP No.1 to 5 are jointly and severely liable to pay the said booking amount of Rs.5,06,000/- along with interest in the form of compensation and also the litigation cost.

            These points are answered accordingly.

            Hence

                              ordered

            CC/577/2017 is dismissed on contest against OP No.6 and allowed ex-parte against OP No.1 to 5. OP No.1 to 5 are jointly and severely directed to refund Rs.5,06,000/- to the Complainant and also to pay compensation in the form of interest @ 10% p.a on the said sum from the date of last payment till this date, within two months from the date of this order. OPs No.1 to 5 are further directed to pay litigation cost of Rs.12,000/- within the aforesaid period of two months, in default the entire sum shall carry interest @ 10%  till its realization.           

Consequent to the disposal of main case, MA/72/2018 is also disposed of accordingly.