Date of filing : 02.11.2017
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 Arsalan Enterprise being represented by its partners 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 HIG Category in the project (Shribhumi) and booked the same on payment of a sum of Rs.2,05,000/- by way of cheque, in favour of the Shribhumi Realty Pvt. Ltd. on payment of Rs.2,05,000/-, towards confirmation, declaration form and a money receipt was issued by the OP No.1. It was assured that the said flat would be completed and handed over in the beginning of the year 2016 and further assured that after obtaining the sanctioned plan from the concerned authority, Complainant would be called upon to execute an agreement for sale in respect of the said flat. 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.29.8.2016 through his Ld. Advocate, addressed to the OP No.1 asked for refund of the money. Notice was received by the OP No.6 and it was refused by OP No.2. Intimation was also served upon OP No.2 and 4. 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.2,05,000/- towards booking amount paid to OP No.1 along with interest @ 10% for 67 months which amounts to Rs.1,14,458/-, 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 one receipt showing payment of Rs.2,05,000/- by way of one cheque, and the copy of the notice sent through Ld. Advocate asking for the refund of booking amount of Rs.2,05,000/- 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. Admittedly, no agreement was executed by and between the parties. However, claim of the Complainant that it had booked the flat has not been disputed and denied by the contesting OP. In order to substantiate its claim that it booked a flat under HIG Category in the said project of Shribhumi and has paid Rs.2,05,000/-, Complainant has filed receipt issued by the OP No.1 dt.4.2.2012. The payment was made by cheque bearing No.238076 of HDFC Bank. So, these documents sufficiently establish that the Complainant had booked the flat. But the OPs have neither delivered him the said flat as agreed nor have refunded the amount of Rs.2,05,000/-. 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 contention of the OP No.6 namely Sri Samit Dutta that he had resigned from the OP No.1 company, it is apparent that at the relevant period of transaction between the Complainant and the OP No.1 which is dt.4.2.2012 said OP was very much working with the OP No.1 and had not resigned. According to him, he was a mere agent and was drawing a monthly fixed salary but, in support of his said claim, there is absolutely no document filed by him where as it is the specific case of the Complainant that the OP No.2 to 6 were the directors of the OP No.1 and at different point of times have utilized the funds of the company to their benefits and thereafter seizing the opportunity have resigned from the said company.
It may be pointed out that under the provision of Section 168 (2) of the Company Act, a Director of a Company shall be liable for the act done by him during his tenure as a Director of the Company and shall be liable even after his resignation for the offences which occurred during his tenure.
In this case, Complainant has also filed copy of two deeds of conveyance which have been signed by the OP No.6 Samit Dutta in his capacity as Director of the OP No.1. So, these deeds are very clear that lands were purchased being represented by OP No.6 as Director of OP No.1/Company. If that be so then his contention that he was a mere agent, cannot be accepted. Complainant has also filed copy of Company master details annexed with his affidavit-in-chief, which reflects the name of OP No.2 and OP No.4 to 6 being Directors as signatories for the Company. So far as OP No.3 is concerned Complainant has stated in reply to the questionnaire of OP No.6 that OP No.2 and OP No.3 (Soumitra Roy) were the Directors of the Company till the date of filing of the complaint. OP No.6 in his reply to the questionnaire of Complainant has also stated that OP No.2 and 3 were the Directors during his appointment. It may be mentioned here that even though the Company master details indicates the date of appointment of OP No.6 on 15.6.2015 but the same may be the date of his reappointment as admitted case of OP No.6 is that he had resigned on 23.6.2014.
So, as the Complainant has neither been handed over the flat nor has been refunded the amount, in view of the discussions as highlighted above, OP No.1 to 6 are jointly and severely liable to pay the said booking amount of Rs.2,05,000/- along with interest in the form of compensation and also the litigation cost.
These points are answered accordingly.
Hence
ordered
CC/615/2017 is allowed on contest against OP No.6 and ex-parte against OP No.1 to 5. OP No.1 to 6 are jointly and severely directed to refund Rs.2,05,000/- to the Complainant and also to pay compensation in the form of interest @ 10% p.a. from the date of payment till this date, within two months from the date of this order. The OPs 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/113/2019 is also disposed of accordingly.
