Date of filing : 05.03.2018

Judgment : Dt.09.07.2019

Mrs. Sashi Kala Basu, Hon’ble President

            This petition of complaint is filed under section 12 of C.P.Act, 1986 by Subhashis das 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 MIG Category in the project (Shribhumi) and booked the same on payment of sum of Rs.1,25,000/- by  three cheques , in favour of the Shribhumi Realty Pvt. Ltd. On payment of Rs.1,25,000/-, towards confirmation, declaration form and a money receipt dt. 02.08.2012 was issued by the OP No.1. Complainant further paid an amount of Rs 231000/-to OP No.1, who issued money receipt dated 25.06.2014 . So, Complainant paid Rs.356000/- in total. An indenture for sale was also executed on 25.06.2014 between the Complainant and the OP Company, wherein OP agreed to complete the Flat within june, 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.02.12.2017 through his 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 Complainant. OPs have resorted to unfair trade practice. So, the present complaint has been filed praying to direct the OPs to jointly and severely returned Rs 356000/- along with interest @ 10%, 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 receipts showing payment of Rs.356000/-, and the copy of the notice sent through Ld. Advocate asking for the refund of amount of Rs.356000/- 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 employee 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. Claim of the Complainant that he had booked the flat has not been disputed and denied by the contesting OP. In order to substantiate his claim that he booked a flat under MIG Category in the said project of Shribhumi and paid Rs.356000/- in total, Complainant has filed  receipts issued by the OP No.1 dt.02.08.2012 and 25.06.2014  respectively. The payment was made by way of cheques.  Indenture for sale entered into between the parties also reveals payment of Rs. Rs.356o00/- by the Complainant. So, these documents sufficiently establish that the Complainant had booked the flat, but the OPs have neither delivered him the said flat nor have refunded the amount of Rs 356000/-. 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 on 25.06.14, he had offered his resignation and  it was accepted by the board on 01.07.14.  complainant has also stated in the complaint petition that cause of action arose on 25.06.14. If that be so than op no 6 cannot be held liable. According to section 168(2) 0f companies Act “ the resignation of a director shall take effect from the date on which the notice is received by the company or the date, if any specified by the director in the notice, whichever is later.” So as op no 6 had submitted his resignation on 23.06.14, he was not involved with op company during the accrual of cause of action and as such no liability can be attributed upon him.

             In view of the discussions as highlighted above, OP No.1 to 5 are jointly and severely liable to pay the said  amount of Rs.3,56,000/- along with interest in the form of compensation and also the litigation cost.

            These points are answered accordingly.

            Hence

                                     ordered

          CC/93/2018 is dismissed on contest against OP No.6 but allowed ex-parte against OP No.1 to 5. OP No.1 to 5 are jointly and severely directed to refund Rs.3,56,000/- 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.