Date of filing : 02.11.2017

Judgment : Dt.28.2.2019

Mrs. Sashi Kala Basu, Hon’ble President

            This petition of complaint is filed under section 12 of C.P.Act, 1986 by Subhamoy Chatterjee 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. On seeing the wide publication through internet advertisement, Complainant got in touch with a representative of the Company OP No.1 for purchasing one flat along with an open garage in the project (Shribhumi) and booked the same under HIG category on payment of a sum of Rs.1,75,000/- in favour of the Shribhumi Realty Pvt. Ltd. by cash for confirmation of booking of flat. So, the Complainant paid a sum of Rs.1,75,000/- 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. 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.30.1.2014, addressed to the OP No.2 and asked for refund of the money. After receiving the said letter OP No.2, issued one cheque to the Complainant being No.682471 dt.4.8.2014 for Rs.1,92,500/- drawn on UBI. Therefore, the Complainant have dropped the cheque in this Bank UBI, Darjeeling Branch which was dishonoured. The OPs have resorted to unfair trade practice and Complainant has also sent a notice through his Ld. Advocate claiming refund of the booking amount along with interest @10%, but all in vain.

            So, the present complaint has been filed praying to direct the OPs to jointly and severely return Rs.1,75,000/- towards booking amount paid to OP No.1 along with interest @ 10% for 57 months which amounts to Rs.83,125/-, to pay compensation of Rs.1,00,000/- 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.1,75,000/- by way of one cheque, and a copy of the notice sent through Ld. Advocate on 8.9.2017 asking for the refund of booking amount along with interest. Complainant has also filed the returned cheque from the Bank along with Bank slip showing that the cheque appears to have been issued by the OP, was dishonoured.

            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 employee, he was not responsible for the affairs of the Company and this case is not maintainable against him and liable to be dismissed. 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 and 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 director, 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. It is also argued that OP No.2 has already admitted that he being the Director, was sole responsible towards the liability of the Company. Ld. Advocate has cited the case law of SMS Pharmaceuticals Ltd. VS Nita Valla and another.

            Ld. Advocate for the Complainant has cited relevant provision under Section 168 of the Company Act and has argued that even after the resignation the Director shall be liable for the offences which occurred during his tenure.

            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?

            Point No.1 & 2 –

            Both the points are taken up together for discussion in order to avoid repetation. Admittedly, no agreement was executed by and between the parties. However, claim of the Complainant that he had booked the flat under HIG Category has not been disputed and denied by the contesting OP. In order to substantiate his claim that he booked a flat under HIG Category in the said project of Shribhumi and has paid Rs.1,75,000/-, Complainant has filed a receipt issued by the OP No.1 dt.5.12.2012. The payment was made in cash and a money receipt being No.2183 dt.5.12.2012 was issued by OP No.1 acknowledging receipt of Rs.1,75,000/- dt.5.12.2012 towards booking of flat under HIG Category. This amount was paid by the Complainant is further substantiated from the documents filed by the Complainant showing that towards refund of the amount, he was given cheque of Rs.1,92,500/- being No.682471 dt.4.8.2014. But, on presentation of the same it was returned dishonoured on the ground ‘fund insufficient’. Complainant has filed the said bank slip and the returned cheque. He has also filed the letter written to the OP No.1 company stating that he intends to cancel the booking and for refund of the amount. So, these documents sufficiently establish that the Complainant had booked the flat. But the OPs have neither delivered him the said flat as agreed in time and subsequently has not refunded the amount of Rs.1,75,000/- in total. 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 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.5.12.2012 the said OP was very much working with the OP No.1 and had not resigned. According to him, he was not Director and a mere employee. 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.

            It may be pointed out that the plain reading of the provision of Section 168 (2) of the Company Act makes it clear that 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 and the resignation of a Director shall take effect from the date on which the notice received by the Company or the date if any specified by the Director in the notice whichever is later.

            So, in view of the specific provision and also in the absence of any document by the OP No.6, his contention that he is not liable in any way, cannot be accepted.

            As such Misc. Application being No. MA/26/2018 filed by OP No.6 challenging the maintainability of this case is liable to be rejected.

            So, in view of the discussions as highlighted above, the OP No.1 to 6 are jointly and severely liable to pay the said booking amount of Rs.1,75,000/- along with interest in the form of compensation and also the litigation cost.

            These points are answered accordingly.

            Hence

                                    ordered

            CC/614/2017 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.1,75,000/- 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.10,000/- within the aforesaid period of two months, in default the entire sum shall carry interest @ 10%  till its realization.

            Consequently, MA/26/2018 is also disposed of accordingly.