Judgment : Dt.4.7.2017

            This is a complaint made by one Ambhrin Bhattacharyya, son of Mr. Pralay Kumar Bhattacharyya residing at 228/A, Raja Ram Mohan Road, Gitanjali Apartment, Flat No.1C, Kolkata-700 008 against – (1) Shribhumi Realty Pvt. Ltd, having its registered office at 50, A.J.C. Bose Road, OP No.1, (2) Mr. Gopal Malakar, Director of Shribhumi Realty Pvt. Ltd., OP No.2, (3) Mr. Biswabrata Maity, Director of Shribhumi Realty Pvt. Ltd., OP No.3, (4) Mr. Sagar Ganguly, OP No.4 and (5) Mr. Samit Dutta, OP No.5, prayed for an order directing the OP to return Rs.3,00,000/- towards booking amount paid to the OP No.1 by the petitioner along with an interest @ 10% for 46 months, which amounts to Rs.1,15,000/- and an order directing the OP to pay Rs.1,00,000/- as compensation and litigation cost of Rs.20,000/-.

            Facts in brief are that Complainant invested in the project viz. Shribhumi Realty Pvt. Ltd. OP No.1 is a real estate Company, which is engaged in buying, selling, renting and operating of self-owned or leased real estate such as apartment building and dwellings. Further, Complainant has stated that on the basis of wide advertisement and publication made by the OP, Complainant booked a flat of HIG Category, with an open garage space and for that paid Rs.3,00,000/- in favour of the Shribhumi Realty Pvt Ltd. through cheque and three money receipts were issued in favour of the Complainant. OPs have assured that the project be completed and handed over in the beginning of 2016. But, it could not be done. The same land is still vacant and the said project is lying as it is. So, OPs made unfair trade practice. On this, Complainant issued a legal notice for return of the booking money. But of no use. Hence this complaint  was filed.

            OP No.5 filed written version and denied the allegations of the complainant. It is the contention that OP No.5 used to work for gain in Shribhumi Realty Pvt. Ltd. and he was appointed by the then Directors of OP No.1 on 11.11.2011. Further, OP No.5 has stated that he held the post  of Director of the Company and his job was to monitor the field works relating to land and construction. He was not in charge of the accounts and any other financial matters.

            Further, OP No.5 has stated that he was an employee and worked as a Working Director and used to draw a monthly fixed salary. But, due to his some personal problems he sent resignation letter to the Board of Director of the OP No.1 on 23.6.2014 and the said resignation letter was accepted in the Board meeting. OP No.5 has also stated that he never executed any agreement with the Complainant. He was merely  an employee and worked as per direction of OP. In such circumstances, this OP has prayed for dismissal of this complaint.

            Other OPs did not contest the case by filing written version and so it was heard ex-parte.

Decision with reasons

            Complainant filed affidavit-in-chief to which OP No.5 put questionnaire to which Complainant filed reply. Similarly, OP No.5 filed affidavit-in-chief to which Complainant filed questionnaire to which OP No.5 filed reply.

            Main point for determination is whether Complainant is entitled to the reliefs as prayed for.

            On perusal of the prayer portion of the complaint, it appears that the first prayer is for order directing the OPs to return Rs.3,00,000/-, the booking money which Complainant has paid, with an interest of 10% for 46 months. In this regard, the original receipt has been filed by the Complainant, showing that Shribhumi Realty Pvt. Ltd. issued three receipt in the name of Complainant on 8.12.2012 stating that OP received Rs.50,000/- and further there is another receipt which reveals that Shribhumi Realty Pvt. Ltd. received Rs.50,000/-. That means there is no doubt that Shribhumi Realty Pvt. Ltd. received three lakhs from the Complainant.

            Since this allegation remained unchallenged due to non-appearance of the OP No.1 to 4, it can be accepted that the Complainant paid Rs.3,00,000/- to the OPs as alleged.

            OP No.5 has contested the case by filing written version as well as by filing affidavit-in-chief. OP No.5 is one Mr. Samit Dutta residing at Madhya Gobindapur Biswaspara, P.O.-Dakshin Gobindapur, Langalberia, Sonarpur, Dist.- South 24-Parganas. However, for OP No.5 Complainant has not used the term “Director” in the cause title. But, on perusal of the written version, it is clear that OP No.5 has himself mentioned in Paragraph 6 that he used to work for gain in Shribhumi Realty Pvt. Ltd. Again in paragraph 7 OP No.5 has mentioned that he made an application and was appointed by the them Directors on 11.11.2011. Further, in Paragraph 8 he himself stated that he held the post of ‘Director of the Company’ and as per direction of OP No.1 his job was to monitor the field works, works relating to land and construction. Again in Paragraph 9, OP No.5 has stated that he was mere an employee and worked as ‘Working Director’.

            Now, the question arises as to why the OP No.5 remained so much confused in making statement in his written version. At one place he says that he was an employee and other place he says that he was a Director. It is clear that Director of a company are trustees and agents and so any liability towards company in respect of 3 persons is of a directors and they cannot shirk their responsibility by saying that they were employee. If, for the same of argument, it is accepted also that he was an employee, it was the duty of OP No.5 to file document to establish that he was a salaried employee, which he has not done.

            As such, we are of the view that OP No.5 used to work as a Director. But, surprisingly, it appears that Complainant has not named OP No.5 as a Director in the cause title. This creates a confusion in the mind of this Forum. A Xerox copy of the Memorandum of Associations and Articles of Associations have been filed. In these copies, it appears that it is mentioned that Gopal Malakar and Debajyoti Das are the first directors whenever any vacancy arises. That means, the admission of OP No.5 that he was a Director appears to be convincing,

            Now, the question arises as to whether Complainant is entitled to refund of Rs.3,00,000/- with 10% interest for 46 months. In this regard, it appears that Complainant paid the money in 2012 and has filed this case after a lapse of four years. In between this there is no mentioned save and except that he made the approach to the OP for refund of the money. He issued a legal notice on 29.8.2016 that means before some days of filing of this complaint. So, it is clear that Complaint himself also not remained diligent. Complainant has not stated that when he knew about the position of the project as it is lying today. However, since Complainant has paid money, he is entitled to get refund after deduction of 10%. It is because any real estate company makes expenses in keeping the money and maintaining it.

            Complainant has also prayed for compensation and for litigation cost.

            Considering the circumstances, we do not find any ground to allow the compensation or litigation cost. Because, the failure is also of the Complainant who has in filing this complaint made several discrepancies by not writing OP No.5 as Director.

            Hence,

ordered

            CC/553/2016 and the same is allowed ex-parte against OP No.1 to 4 and on contest against OP No.5. OPs are directed to pay Rs.2,70,000/- to the Complainant within three months of this order, in default, this amount shall carry interest of 10% from the date of order till realization.