Date of filing : 17.4.2018

Judgment : Dt.21.8.2019

Mrs. Sashi Kala Basu, Hon’ble President

            This petition of complaint is filed under section 12 of C.P.Act, 1986 by Complainants namely Shampa Mukherjee and Arpan Mukherjee 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) 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, Complainants got in touch with a representative of the OP No.1 for purchasing one flat under MIG Category along with Garage in the project (Shribhumi) and booked the same on payment of sum of Rs.1,75,000/- by cheque dt.30.5.2012, in favour of the Shribhumi Realty Pvt. Ltd. On payment of Rs.1,75,000/-, towards confirmation, declaration form and a money receipt being No.279 dt.31.05.2012 was issued by the OP No.1. They also paid an amount of Rs.3,00,000/- by cheque but no receipt could be obtained by the Complainant No.1 as she had left for Bangalore. It was assured that the said flat along with garage would be completed and handed over in the beginning of the year 2017 and further assured that after obtaining sanction plan, Complainant would be called upon for execution of the agreement for sale between the Company and the Complainants. But, till date the project has not been completed and the project site is completely vacant. So, Complainant by a letter dt.06.12.2017 through her Ld. Advocate, addressed to the OP No.1 asked for refund of the money. But, in spite of giving notice, OPs did not refund the amount to the Complainants. 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.4,75,000/- along with interest @ 10%, to pay compensation of Rs.1,50,000/- for causing mental harassment and agony and Rs.30,000/- towards litigation cost and other incidental charges.

            Complainant has filed receipt showing payment of Rs.1,75,000/-. Application Form, statement of bank account and copy of the notice sent through Ld. Advocate asking for the refund of amount of Rs.4,75,000/- along with interest.

            On perusal of the record, it appears that OPs No.1 to 4 did not take any step, so the case proceeded ex-parte against them. However, OP No.5 & 6 have contested the case by filing separate written version. OP No.5 has contended that he was an employee of OP Company on and from 11.11.2012 to look after the administrative works and he resigned on 5.3.2015. He never exercised any power as Director of the Company.

          OP No.6 has also contended that his job was only to monitor the field work and was a mere employee. He resigned on 23.6.2014 which was accepted by the board of Directors on 1.7.2014.

            So, the following points require determination (1) Whether there has been any deficiency in service on the part of opposite parties, (2) Whether the Complainants are entitled to the relief as prayed for?

            Decision with reasons

Admittedly, no agreement was executed by and between the parties. In order to substantiate her claim that she booked a flat and a garage under MIG Category in the said project of Shribhumi  and paid Rs.4,75,000/- in total, Complainant has filed money receipt issued by the OP No.1 dt.31.5.2012 and bank account’s statement. The payment was made by way of two cheques being No.521370 and 521371 dated 30.5.2012. Complainant has filed receipt in respect of Rs.1,75,000/- issued by OP No.1 but no receipt is filed in respect of payment of Rs.3,00,000/-. However, from the statement of bank account, it is evident that an amount of Rs.3,00,000/- was debited from the account of Arup Kumar Mukherjee who appears to be husband of the Complainant Sampa Mukherjee, in the name of Shribhumi Realty. So, these documents sufficiently establish that the Complainant had booked the flat and the garage and paid Rs,.4,75,000/- in total. But the OPs have neither delivered them the said flat with garage nor have refunded the amount of Rs.4,75,000/-. 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. Even though OP No.5 and OP No.6 have contested the case but they have not challenged the claim of the Complainants about booking of flat and garage and payment made by them. OP Nos.5 & 6 have only contended that they were not liable for the affairs of the company as they were mere employees.

Now coming to the claim of the OP No.5 namely Sagar Ganguly, it appears from the document filed by him that he joined the Company o n 11.11.2012. Transaction between the Complainant and the Company took place in May/June, 2012. Complainants have also filed copy of master details which reflect that the OP No.5 joined on 13.01.2014 as Director and has subsequently resigned from the OP Company. The document filed by the OP No.5 and master detail filed by Complainant suggest that it may be that OP No.5 joined in November, 2012 and might have resigned and then again joined and thereafter resigned. But either way apparently during the relevant period of transaction/payment by the Complainant, which is dated 30.5.2012, OP No.5 namely Sagar Ganguly was not related in any way with the OP Company and thus he cannot be held liable.

             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.30.05.2012 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, 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.

            Complainants have filed master details of the OP Company which reveals that all the OPs named in the complaint have been the directors of OP Company during the period as stated against their respective names. OP Samit Dutta is also a signatory being one of the Directors of the Company. However, even though Company’s said 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 OP No.6 is that he had resigned on 23.6.2014.

            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 and for the said reason the copy of document showing that he was getting salary appears to be nothing but an after-thought and subsequent development.

            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 4 and OP No.6 are jointly and severely liable to pay the said amount of Rs.4,75,000/- along with interest in the form of compensation and also the litigation cost.

            These points are answered accordingly.

            Hence

                                   ordered

            CC/206/2018 is allowed on contest against OP No.6 and ex-parte against OP No.1 to 4 but it is dismissed on contest against OP No.5. OP No.1 to 4 and OP No.6 are jointly and severely directed to refund Rs.4,75,000/- to the Complainants along with interest on the said amount @ 12% 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 @ 12%  till its realization.