Date of Filing: 20.06.2018

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 Ranadip Dey 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  and a open garage under MIG Category in the project (Shribhumi) and booked the same on payment of a sum of Rs.1,25,000/- by way of four cheques dated 12.11.2012 , in favour of the Shribhumi Realty Pvt. Ltd. He also paid further sum of Rs.50,000/- through a cheque dated 13.09.2013.  On payment of Rs.1,25,000/- & Rs.50,000/-, towards confirmation money receipts dt.12.11.2012 and 13.09.2013  were 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 2017 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 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.6 but it could not be served upon OP no.1 and 2 to 5 as the postal remarks contained “addressee moved” and “addressee absent”. 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.1,75,000/- 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.30,000/- towards litigation cost and other incidental charges.

            Complainant has filed money receipts showing payment of Rs.1,75,000/- in total by way of cheques, and the copy of the notice sent through Ld. Advocate asking for the refund of sum  along with interest .

Op no.5 has contested the case by filing written version denying the allegation contending specifically that he joined the OP no. 1 company on 11.11.2012 and on 06.03.2015 he left the company. He had joined the OP no.1 company in the post of office administration and as such had no knowledge whether complainant booked the flat and garage and paid any amount to the company /OP no.1. Thus the OP no.5 has prayed for dismissal of the case against him.

            The case has also been contested also 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 OPs and the Complainant have adduced their respective evidences by filing the affidavit-in-chief followed by filing of the questionnaire and reply thereto by the complainant but the OP 5 and 6 did not file any reply to the questionnaire filed by the complainant and thus case was fixed for argument. Complainant and OP no.6 filed the B.N.A. No step was taken by OP no.5.

            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 he had booked the flat and a open garage has not been disputed and denied by the contesting OPs. In order to substantiate his claim that he booked flat under MIG Category in the said project of Shribhumi and an open garage and paid Rs.1,75,000/- in total, Complainant has filed receipts issued by the OP No.1 dt.12.11.2012 and 13.09.2013.It is evident from the receipts that  the payment was made by way of cheques  dt.12.11.2012 of Rs 1,25,000/- and paid Rs 50,000/- by cheque dated 13.09.2013. So, these documents sufficiently establish that the Complainant had booked the flat and garage space. But the OPs have neither delivered him the flat and garage space  as agreed nor have refunded the amount paid by him of Rs 1,75,000/-. The claim of the Complainant is also established as there is absolutely no contrary material before this Commission 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.12.11.2012, 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 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. Complainant has filed a copy of deed of sale dt 03.10.2012 wherefrom it appears that OP 6 purchased the property therein in his capacity as director of OP no.1 Company. So the said document belies the contention of the Op no.6 that he was a mere agent.

So far as OP No. 5 , according to him he was appointed as office admin on 11.11.12 and resigned on 06.03.15 but the document filed by the Complainant along         with his evidence of examination in chief on affidavit, it appears that OP No.5 was further appointed as director of the company on 13.01.2014 and resigned on 24.09.2015. So it is apparent that during relevant transaction with the Complainant, OP No. 5 as well as OP No. 6 were responsible for the act of the company and were discharging their duties as directors. The company master details filed by the complainant also reflects OP No. 5 & 6 being directors as signatories for the company.

It may be pertinent to point 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 case of Kiron Baliram Saradoe vs Tapi Parashar Urban Cooperative Credit Society Ltd and Anr. It has been held by the Hon’ble Maharashtra State Consumer Dispute Redressal Commission that the prayer for exoneration from the liability on account of resignation cannot be accepted once Complainant depositor proves that the person who has made a prayer to exonerate him, was in the post when deposit was made in the society, he owes liability to repay the amount along with other directors though he has resigned.

            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 back the said amount of Rs.1,75,000/- along with interest in the form of compensation and also the litigation cost.

Hence

           Ordered

CC/372/2018  is allowed on contest against OP No.5 and OP No.6  and ex-parte against OP No.1 to 4. OP No.1 to 6 are jointly and severely directed to refund Rs.1,75,000/- to the Complainant and also to pay compensation in the form of interest @ 10% p.a. from the date of last 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.