Date of filing : 23.03.2018

Judgment : Dt.15.01.2020

Mrs. Sashi Kala Basu, Hon’ble President

            This petition of complaint is filed under section 12 of C.P.Act, 1986 by Paul Bikash Rakhelo alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) Shribhumi Realty Pvt. Ltd., (2) Mr. 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 Complainant being  interested in the project of the OP namely Shribhumi which was to be developed by the Sribhumi Realty Pvt. Ltd./OP No.1, booked a flat along with an open garage and paid a sum of Rs.2,00,000/- for the flat under MIG category and Rs.50,000/- for open garage. Complainant made the payment of the said amount of Rs.2,00,000/-  for flat and Rs.50,000/- for garage through three cheques dt.15.1.2013. Complainant  further paid an amount as a second part payment of Rs.2,43,800/- in favour of the OP No.1 by one cheque dt.24.5.2014. OP issued the receipt towards each payment and an agreement for sale was also executed between the Company and the Complainant on 29.05.2014, whereby it was agreed that the flat would be completed and handed over within May, 2016. OP No.2 to 6 are the Directors and/or former Director of the OP No.1, the Company. But it was noticed that no work was done towards development of the said project. So, Complainant through his Ld. Advocate made a representation dt.27.01.2018 to the Company to refund the total amount of Rs.4,93,800/-. But, unfortunately, not even a single amount has been paid so far. Thus the present complaint has been filed by the Complainant praying for directing the OPs to jointly/severely return Rs.4,93,800/- paid towards the flat and the garage along with interest @ 10% for 43 months, to pay Rs.1,00,000/-  as compensation and Rs.20,000/- as litigation cost.

                        On perusal of the record, it appears that only OP No.6 namely Samit Dutta has contested the case by filing written version contending specifically that the job of the OP No.6 was only to monitor the field work and the construction work of the Company and was not in-charge of accounts. Neither he was a shareholder of the Company. It is contended by him that he was a mere employee of the OP Company and drew monthly fixed salary. It is also contended that he had resigned from the Company and thus not liable to the Complainant. So, OP has prayed for dismissal of the case.

            During the course of the evidence, both parties adduced evidence followed by filing of questionnaire and reply thereto and ultimately argument has been advanced by both parties.

            Ld. Advocate appearing for the OP No.6 has argued that OP No.2 namely Gopal Malakar was the developer and responsible for the entire affairs of the OP Company and to this effect said OP has also sworn an affidavit.

            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

In order to substantiate his claim that he had booked a flat under MIG category and garage in the project namely Shribhumi to be developed by the OP No.1, Complainant has filed copy of the agreement dt.29.5.2014. He has also filed two money receipts dt.15.1.2013 and a receipt dt.24.5.2014, wherefrom it appears that Complainant paid Rs.2,00,000/- and Rs.50,000/- on 15.01.2013 by cheques. Receipt dt.24.5.2014 further shows that an amount of Rs.2,43,800/- was paid by the Complainant towards the said flat. So far as the payment by the Complainant and the agreement entered into with the Company has not been disputed and denied by the only contesting OP namely Samit Dutta. So, in the absence of any contrary material and on consideration of these receipts as well as the agreement there remained no doubt that the Complainant is entitled to the refund of the said amount as it is his specific claim that neither the flat and garage has been handed over nor the money has been refunded. According to her no work was done towards the development of the said project.

So far as the claim of the OP No.6 namely Samit Duta, Complainant has filed Company master details showing the OP No.6 as the Director. Apart from this, copy of the two sale deeds dt.03.10.2012,  filed by the Complainant in the instant case, indicates that OP No.6 sold the property as director of the OP No.1 to some purchasers. So, his contention that he was just an employee and no-way related with the Company for the transaction made by the OP Company with the Complainant, cannot be accepted. The contention of the OP that OP No.2 has sworn an affidavit that he was responsible will not shed the responsibility of other directors as it is a settled principle of law that the directors working at the relevant time of transaction and discharging their duties and responsible to the Company for the conduct of its business will be liable. OP No.6 has also taken the plea that he had resigned from the Company and had sent his resignation letter to Board of Directors of the OP No.1 on 23.06.2014 and his resignation was accepted in a meeting held by the Board on 01.07.2014 and intimated to him by a letter dt.02.07.2014. But in this regard, it may be pertinent to point out that under the provision of Section 168(2) of the Company Act, a Director of the 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 offences which accrued during his tenure and the resignation of a Director shall take effect from the date o n which the notice is received by the Company or the date, if any, specified by the Director in the notice, whichever is later. In this case, it is evident that the transaction took place initially on 15.1.2013 when Complainant paid the booking amount of Rs.2,00,000/- for the flat and Rs.50,000/- for the garage. Admittedly, OP No.6 was working with the Company during the said period. So, in such a situation Complainant is entitled to the refund of the money along with interest in the form of compensation.

            Hence

                            ordered

            CC/153/2018 is allowed ex-parte against OP No.1 to 5 and allowed on contest against OP No.6. OPs are directed, jointly and severely, to pay Rs.4,93,800/- to the Complainant along with interest @ 10% p.a. from the date of last payment by the Complainant i.e. 24.5.2014 to till this date within two months from the date of this order, failing which the entire sum shall carry interest @ 10% p.a. till realization. OPs are further directed to pay litigation cost of Rs.10,000/- within the aforesaid period of two months.