Date of Filing: 05.12.2016

Date of Judgment: 02.08.2022

Mrs.  Sashi Kala Basu, Hon’ble  President

This petition of complaint is filed under section 12 of C.P.Act, 1986 by Manindra Kapri,  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. Biswabrata Maity, (4) Mr. Sagar Ganguly and (5) 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 5 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  and a open garage under MIG Category in the project (Shribhumi) and booked the same on payment of a sum of Rs.1,50,000/- by way of three cheques dated 23.01.2013, in favour of the Shribhumi Realty Pvt. Ltd. He also paid further sum of Rs.3,10,000/- through a cheque dated 21.05.2014.  On payment of Rs.1,50,000/- & Rs.3,10,000/-, towards confirmation money receipts  were issued by the OP No.1. Thereafter one indenture of sale was executed between the complainant and the O.P no.1. As per the terms of agreement flat was to be completed and handed over in the beginning on June, 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 representation  dt.01.08.2016 through his Ld. Advocate, addressed to the OPs  asked for refund of the money. Notice was received by the OP No.5. OP nos. 2 to 4 despite service refused to accept the same. Against O.P no.1 the postal remarks contained “addressee moved”. Since 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.4,60,000/- paid towards booking amount to OP No.1 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 money receipts showing certain payments, copy of indenture for sale  and the copy of the notice sent through Ld. Advocate asking for the refund of sum  along with interest .

            The case has also been contested only by OP No.5 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 the questionnaire and reply thereto. Ultimately case was fixed for argument. Argument has been heard. Complainant also has filed BNA.

            At the time of argument, Ld. Advocate appearing on behalf of OP No.5 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.5 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

            Both the points are taken up together for discussion in order to avoid repetition.

            Complainant has claimed that he booked the flat and a open garage from the O.P no.1 , the company, and has paid a total sum of Rs. 4,60,000/- . But neither the flat and garage has been handed over nor the money has been refunded to the complainant. It appears from the record that complainant has not filed the original documents. However, on perusal of the copy of the indenture of sale dated 21.5.2014 filed by the complainant, it appears that the recital therein reveals that the O.P company namely Shribhumi Realty Ltd. acquired land from some of the owners. It is categorically stated that some of the owners have transferred the land to O.P company which has been mutated in its name in the LR record. But some of the owners only have handed over the possession of the land to the O.P company for development. The clause 5.4.5 further reveals that a Power of Attorney would be executed by the owners in favour of the developer. The said terms read as follows:

            “In pursuance of the said agreement the owners will grant registered Power of Attorney to the developer as per provisions of the West Bengal Registration Act and accordingly entering into this Agreement”.

            So, the recital is very specific that the owners who had only delivered the possession and has not transferred the property to the O.P company, had agreed to execute the power of attorney in favour of the O.P company being represented by O.P no.2. It is no-where stated in the complaint that any power of attorney was subsequently executed in favour of the O.P company empowering the O.P company to enter into an agreement with the intending purchaser in order to sell the flat in the proposed project. Even the said Indenture for Sale dated 21.5.2014 does not reflect that the O.P company was represented by the owner as Constituted Attorney. If that be the situation, then the complainant has to establish that the O.P company was empowered to sell the flat and the open garage as agreed as there cannot be a transfer in respect of any property belonging to other owners, unless they empower to the developer company to do so. Since, the present complaint is totally silent in this regard, same cannot be maintainable and so as the case would be restricted only for the recovery of the sum paid by the complainant, competent civil court only has the jurisdiction to decide.  

Hence

             Ordered

CC/580/2016 is dismissed on contest against OP No.5 and ex-parte against other O.Ps.