Judgment : Dt.9.11.2017
Shri S. K. Verma, President.
This is a complaint made by Vijay Shankar Pandey, son of Sri Devendra Nath Pandey, residing at A/201, Fortune City, 155, Old Jessore Road, Kolkata-700 132 against Shribhumi Realty Pvt. Ltd., having its registered Office at 50, A.J.C. Bose Road, Thakurpukur, P.S.-Thakurpukur, Kolkata-700 063, OP No.1, Mr. Gopal Malakar, Director of Sribhumi Realty Pvt. Ltd., residing at 300, Parnasree Pally, Aratrika Apartment, 1st floor, Behala, PIN-700 060, OP No.2, Mr. Biswabrata Maity, Director of Sribhumi Realty Pvt. Ltd., residing at Manik Bandyopadhyay Sarani, Bally, Dist.- Howrah, PIN-711 227, OP No.3, Mr. Sagar Ganguly, residing at 53/A, Dr. N. N. Bagchi Road, Barrackpore, Nona Chandan Pukur, Titagarh, PIN-700 120, OP No.4 and Mr. Samit Dutta, residing at Madhya Gobindapur, Biswaspara, P.O.-Dakshin Gobindapur, Langalberiya, Sonarpur, Dist.-South 24 Parganas, PIN-700 145, OP No.5, praying for an order directing the O.P. to return Rs.2,50,000/- towards the booking amount paid to the OP No.1 by the petitioner along with an interest @ 10% for 47 months which amounts to Rs.97,917/- and an order directing the OP to pay Rs.1,00,000/- as compensation to the petitioner for causing mental harassment and agony and also for deficiency in service and negligence and an order directing the OP to pay Rs.20,000/- for legal expenses and other incidental costs.
Facts in brief are that Complainant is one of the customers who invested in the project, namely ‘Shribhumi’ having its project site at Mouza- Sankhripota, P.S.- Maheshtala, South 24-Parganas. OP No.1 is a Real Estate Company which performs buying, selling, renting an operation of self-owned or leased real estate such as apartment building and dwellings, etc. The office of the OP No.1 is within the jurisdiction of this Forum. OP No.2 & 3 are the present directors of the OP No.1 and OP No.4 & 5 are the erstwhile directors of the said Company who were active at the time of initial transaction which has lead to this deficiency. Complainant states that through an advertisement published in the newspaper/ internet, Complainant became aware of the aforesaid project and got interested in the same and accordingly the said representative forwarded all the details to the Complainant. Complainant was also provided with a brochure of the said project and then found that the project consisted of five wings of buildings and were divided in three kinds of flat structures being LIG, MIG and HIG group. Complainant has further stated that representatives of the said company advised the Complainant to book two flats under the MIG category. Complainant paid a sum of Rs.2,50,000/- through two cheques, being Nos.043453 and 043454 both dt.28.11.2012, drawn on S.B.I. Bank, Madhyamgram Branch respectively. Thereafter Complainant received two money receipts being No.1372 and1376 both dt.29.11.2012 issued by the OP. Complainant has further stated that OPs not only miserably failed to live up to the promise made but also have engaged in fraudulent trade practice. Complainant on many occasions approached the OP claiming the refund of the booking money. But, OPs did not oblige him. OPs did not take interest in completing the project and so, Complainant filed this case, praying for refund of the booking money.
OP No.5 filed written version and denied the allegations of the complaint. OP No.5 has stated that the complaint is non-joinder and mis-joinder of the parties. The complainant has no cause of action to file this complaint. The complaint is barred by limitation under the act. OP No.5 was working for gain in the company under the name and style ‘Sribhumi Realty Pvt. Ltd.’ Knowing about the vacancy of the company OP No.5 made an application and was appointed by them as Director of the company and as per direction of the OP No.1 his job was to monitor the field works i.e. works relating to land and construction work. OP No.5 was mere an employee and worked as Working Director and drew a monthly fixed salary from the company. OP No.5 stated that due to personal problem and inconvenience resigned from the OP No.1 and sent a resignation letter to the Board of Director of the OP No.1 on 23.6.2014 and the resignation was accepted by a letter dt.2.7.2014. Further OP No.5 has denied specifically the allegations made out in all the paragraphs of the complaint petition. Further, this OP has stated that the complaint might have made payment in favour of the OP No.1 and OP No.5 was not the signatory authority of the company and he never issued any money receipt to any customer because he was mere an employee. OP No.5 stopped working under OP No.1 from and around the month of March, 2014 which was admitted by the Complainant for monetary transactions was made thereafter. So, this OP has prayed for dismissal of the complaint.
OP No.1 to 4 did not contest the case by filing written version and so the case is heard ex-parte against them.
At this stage, it appears that OP No.1 filed a petition praying for adjournment and prayed for filing written version at the stage of argument. On perusal of the record, it appears that OP No.1 despite receiving the summon did not appear in this case for contesting it for about 11 months and suddenly taking advantage that no ex-parte order has been made against it. At the stage of argument, prayed for filing written version. It is settled principle of law that in terms of the provisions of Civil Procedure Court, there is no need for making specific order of ex-parte order against any of the OPs Court or Tribunal is competent to proceed with the case in the absence of appearance of the OP and may at the time of passing judgement made the order ex-parte against the OPs who did not contest the case by making appearance and filing written version. Record is clear that OP got several opportunities for contesting the case but for the reasons best known to it, did not appear and filed vakalatnama suddenly to delay the proceeding and prolonged the delivery of the judgment. Accordingly, such petition cannot be entertained. Moreover, Consumer Protection Act clearly makes a provision that District Consumer Forum does not have a jurisdiction to modify its sown order and has no right to accept vakalatnama at the stage of argument and give opportunity to any of the OPs for filing written version who remained absent throughout the proceeding.
Decision with reasons
Complainant filed affidavit-in-chief wherein he has reiterated the facts mentioned in the complaint petition. OP No.5 filed questionnaire to which Complainant filed affidavit-in-reply. Similarly, OP No.5 filed affidavit-in-chief to which Complainant filed questionnaire and 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, it appears that Complainant has prayed for an order directing the OPs to return Rs.2,50,000/- the booking amount paid to OP No.1, along with interest of 10% for 47 months to the tune of Rs.97,917/-. In this regard, original money receipts have been filed by Complainant showing that Shribhumi Realty Pvt. Ltd. has received Rs.2,50,000/- against which two money receipts both dt.29.11.2012 for Rs.1,25,000/- each as per the said receipts respectively were issued to the Complainant. That means there is no doubt that OP has received Rs.2,50,000/- from the Complainant. Since the allegations remained unchallenged and due to non-appearance of OP No.1 to 4 it can be accepted that Complainant paid Rs.2,50,000/- as booking money to the OPs.
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 then 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 sake 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.2,50,000/- with 10% interest for 47 months amounting to Rs.97,917/-. In this regard, it appears that Complainant paid the money lastly in 2012 and has filed this case after a lapse of four and half 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 01.08.2016 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/31/2017 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.2,25,000/- 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.
