Judgment : Dt.28.4.2017
Mrs. Balaka Chatterjee, Member
This petition of complaint is filed under section 12 of C.P.Act by Eshita Das, alleging deficiency in service on the part of the Shribhumi Realty Pvt. Ltd., (2) Mr. Gopal Malakar, (3) Mr. Biswabrata Maity, (4) Mr. Sagar Ganguly and (5) Mr. Samit Dutta.
Case of the Complainant in brief is that being aware of the various housing projects of the OP over internet advertising agencies the Complainant made contact to a representative of the OP No.1 Real Estate Co. for purchasing a flat and the said representative provided her all details of the projects of the OP including a brochure of the said projects. The Complainant has further stated that having been convinced by the words of the said representative and going through the brochure the Complainant decided to book an LIG category flat situated at Meghamalhar Project and paid a sum of Rs.2,00,000/- towards booking amount in favour of Shribhumi Reality Pvt. Ltd. through cheque bearing No.179178 dt.8.3.2014 drawn on Axis Bank for booking of a flat in 1st floor of Block No.1, Shribhumi Meghmalhar and receiving the said amount of Rs.2,00,000/- the OP No.1 issued a money receipt dt.8.3.2014 bearing No.052. It is also stated by the Complainant that she further made payment of Rs.87,500/- in favour of the OP No.1 & 2 by two cheques having No.014606 & 014607 dt.7.6.2014 drawn on Axis Bank, in respect of which the OP No.1 issued another receipt dt.9.8.2014. The Complainant further stated that on 9.8.2014 an Indenture of sale was executed by and between the Complainant and the OP No.1, whereby a flat having No.3 having super built up area 550 sq.ft. of the 1st floor at Block No.1 of Sribhumi Meghmalhar was allotted to her. It is the specific allegation of the Complainant that as per terms of the Indenture of sale dt.9.8.2014, the OP was to have delivered the said flat within 2 years from the date of agreement (i.e. 9.8.2014) but they miserably failed to do so since the project site is found completely vacant and even a single pillar has not been constructed there. The Complainant observing such activities on the part of the OPs decided to get back the invested amount instead of the allotted flat. Accordingly, the Complainant by a letter d.5.2.2016 to the OP No.2 requested to refund the total amount of Rs.2,87,500/- but to no effect. The Complainant, as she stated, that through her advocate she made a representation dt.30.4.2016 to the OPs claiming refund of the booking amount with interest at the rate of 10% p.a. which the OP Nos.3, 4 & 5 received but OP Nos.1 & 2 did not receive the same as the same were returned to the office of the said Ld. Advocate with postal remark ‘Addressee moved’. According to the Complainant that the OPs adopted unfair trade practice and also they have deficiency in providing service to the Complainant, accordingly, the Complainant has filed the instant case impleading the Real Estate Company as OP No.1, its Directors as OP Nos.2 & 3 and its former Directors as OP Nos.4 & 5 praying for refund of Rs.2,87,500/- along with interest at the rate of 10% for twenty two Months which amounts to Rs.52,708/, to pay Rs.1,00,000/- towards compensation and Rs.20,000/- towards cost of litigation.
Notices were served upon the OPs. OP Nos.3 4 & 5 have turned up and contested the case by filing separate written version. In his written version, the OP No.3 has stated that during the period for alleged transaction by the Complainant, the OP No.3 was out of the picture since he joined the company on May 11, 2015 and resigned on June 8, 2016. It is further stated by the OP No.3 that the OP No.2 is the founder Director of OP No.1 and the responsibility lies upon him and, therefore, the OP No.3 is in no way liable for non-delivery of the flat or non-refund of the deposited amount.
The OP No.4 in his written version denied the allegation as made out in the petition of complaint stating inter alia, that he resigned from the post of the Director of the OP No.1 on 2.3.2015 and, therefore, the OP No.4 cannot be held liable for any past, present or future act of the OP No.1.
The OP No.5 also denied all allegations as made out in the petition of complaint and stated by filing the instant written version that due to personal problem and in convenience he was not working from March 2014 and, thereafter resigned on 23.6.2014 from the OP No.1 and since then he has no knowledge about the company or its Directors. Accordingly, he prayed for rejection of the complaint
The Complainant and the contesting OP Nos. 3 & 5 adduced evidence on affidavit followed by cross examination in the form of questionnaire and the reply thereto.
In course of argument Ld. Advocate for the Complainant has narrated the facts as stated in the petition of complaint and made prayer for refund of deposited mount along with interest @ 10% p.a. payment of compensation and litigation cost from the end of the OPs. Ld. Advocate for the Complainant relied upon Sec.168(2) of Companies Act, 2013 and stated that as per provision of the said section no Directors can shed their liability to compensate the Complainant.
Ld. Advocate for OP No.3 submitted that his client has already resigned from the OP No.1 Company and the OP No.2 indemnified the OP No.3 by swearing affidavit and therefore OP No.3 has no liability to make good in any case of laws as alleged by the Complainant.
Ld. Advocate for the OP No.5 has submitted that his client has already resigned from the OP No.1 Company and therefore, he has no liability regarding the alleged loss suffered by the Complainant. As regards this Ld. Advocate for the OP No.5 has relied upon the decision of the Hon’ble High Court, Delhi in RFA 14/2010 and C.M. No.495 of 2010 [Mukesh Hans & anr. Vs Smt. Uma Bhasin and Ors.] date of decision 16.8.2010.
Points for determination
Is Complainant is a consumer under OP
Is there any deficiency in providing service on the part of the OPs?
Is Complainant entitled to the relief as prayed for?
Decision with reasons
All points are taken up together for comprehensive discussion and decision.
It is evident from the document on record that the Complainant entered into an agreement with the OP Nos.1 & 2 for availing service to be provided by the OP Pvt. Ltd. Co. in respect of development of land by housing construction service against payment of consideration and thus become Consumer under the OPs (Since OP No.1 is the Pvt. Ltd. Co. and rest OPs are the Directors or former Directors of the OP No.1) as per provision of Sec.2(1)(d) of C.P.Act.
It is evident from the copy of the indenture of sale dt.6.6.2014 that the Complainant and the OP No.1 which was represented by OP No.2 in respect of a flat being No.3 having super built up area of 550 sq.ft. approximately towards South-East facing on the 3rd floor of a building at Block-1 MIG zone at “SHRI BHUMI MEGHMALHAR”, within mouza- Sankharipota, P.S.- Maheshtala, West Bengal at a consideration of Rs. .
It is also evident from the memo of consideration of the said indenture that the Complainant had paid Rs.2,87,500/- in total to the OPs towards consideration of the said flat. It also appears from the clause No.5.5 of the said Indenture for sale that the developer will complete the construction of the building within June, 2016. The Complainant, specially alleged that even after expiry of the said period no sign of construction has been noticed there and thus she decided not to opt for the said flat in respect of which she deposited the part consideration amount rather, opted for refund of the deposited amount of Rs. 2,87,500/- from the OPs. However, the terms of the contract is binding upon the parties and, therefore, the said flat ought to have been completed by June, 2016, but facts remains that the same has not been completed so far which is to be considered as a glaring example of deficiency in service on the part of the OPs.
OP Nos.3, 4 & 5 have contested the case. OP Nos. 3 & 5 by their respective written versions stated inter alia, that they have registered from the OP No.1 company and therefore are not liable in any way in respect of non-delivery of the flat to the Complainant.
However, as per provision of Sec.168(2) of Companies Act, 2013 that the Director who has resigned shall be liable even after his resignation for the offences which occurred during his tenure.
But, it is well settled that the nature of such liability, is tortuous and not to any contractual obligation regarding third party. In the instant case no commission of tort has been alleged against the former Directors i.e. OP No.3, 4 & 5. Therefore, they cannot be held liable on behalf of the OP No.1 Company.
It is, however, observed that the OP No.2 by swearing affidavit indemnified in respect of the OP No.3 and therefore the OP No.3 may be exempted from that liability which will be shifted to the OP No.2.
In such view of the matter, Only OP no. 2 will be liable on behalf of the OP No. 1 in respect of the instant case.
The Complainant has prayed for refund of the deposited amount with interest @ 10% p.a. thereon. We are of opinion that it is a very reasonable prayer since she deposited the same with hope for having her own flat which ultimately did not come into reality and the OP invested the said amount in their business and, therefore, they are liable to pay interest on the deposited amount.
The Complainant has further prayed for compensation to the tune of Rs.1,00,000/- to be paid by the OPs. In this regard, we observe that interest on a principle is itself a form of compensation and, therefore, further award of compensation will be of two fold benefit to the Complainant and, therefore, we are inclined not to allow the same.
The OPs have compelled the Complainant to file the instant case for getting her rightful claim and, therefore, they are to bear the cost of litigation Rs.20,000/.
In the result, the petition succeeds in part.
Hence,
ordered
That CC/277/2016 is allowed ex-parte against the OP Nos. 1 & 2 with cost of Rs.20,000/- and dismissed on contest against OP No.3, 4 & 5.
The OP Nos.1 & 2 are directed to refund Rs. 2,87,500/- to the Complainant with interest @ 10% p.a. for two years which amounts to Rs. 52,708/- within one month from the date of communication of this order to the OP No.1 & 2. The OP Nos.1 & 2 are further directed to pay Rs.20,000/- towards cost of litigation within the aforesaid period.
In default, the entire amount will bear interest @ 12% p.a. for the default period.
