Hon’ble Mr. Ajeya Matilal, Presiding Member
The Appellant/Opposite Party No. 5 Samit Dutta challenges the legality of the Judgement dt. 13.07.2017 allowing the Complaint Case No. CC/551/2016 of DCDRF, Kolkata Unit-III (South), ex-parte against the Opposite Party Nos.1 to 4 and on contest against the Opposite Party No.5.
In the impugned Judgement the Opposite Parties were directed to pay Rs.3,01,500/- to the Complainant within 3 months from that order, with a default clause of carrying interest 10% per annum from the date of the order till its realisation.
The Complainant Sudipto Guchait lodged a complaint against the Opposite Parties praying for refund of Rs.3,35,000/- towards booking amount paid to the Opposite Party No.1 by the claimant along with an interest @ 10% per annum for 28 months, which amounts to Rs.78,176/- and Rs.1,00,000/- as compensation and Rs.20,000/- as litigation cost in CC/551/2016.
The fact of the complaint case is, in short, like that the Complainant invested money in the project viz. Shribhumi Realty Pvt. Ltd. of the OP No.1 being a real estate company, which was engaged in buying, selling renting and operating self-owned or leased real estate such as, apartments, buildings and dwellings. The Opposite Party Nos. 2 to 5 were representatives of the Opposite Party No.1/Company.
The Complainant, on the basis of wide advertisement and publication made by the OP No.1, booked a flat of MIG category and for that he paid Rs.1 lakh in favour of Shribhumi Realty Pvt. Ltd. through one cheque and one money receipt was issued in favour of the Complainant. The Complainant further paid Rs.50,000/- through cheque for confirmation of garage space and against the same one money receipt was also issued by the Opposite Party. The Complainant paid Rs.1,85,000/- as the second payment through a cheque and money receipt was also issued by the Opposite Party to the Complainant. The OPs assured that the project would be completed and handed over in the year 2016. But it was not done. The land remained vacant and no construction was made there.
So, according to the Complainant the Opposite Parties performed unfair trade practice. The Complainant issued a legal notice for refund of the booking amount.
The Opposite Party No.5 Samit Dutta only contested the case denying the allegation of the Complainant. According to him, he used to work for gain in Shribhumi Realty Pvt. Ltd. and was appointed by the then Directors of OP No.1 on 11.11.2011. According to him, he held the post of Director of the Opposite Party No.1 Company and his job was to monitor the field works relating to land and construction. He was not in-charge of the accounts and any other financial matters. According to OP No.5, he was an employee of OP No.1 and worked as Working Director and used to draw monthly salary and due to his personal problems, he sent resignation letter to the Board of Directors of OP No.1 on 23.06.2014 and the said resignation was accepted at the Board meeting. According to him, he never executed any agreement with the Complainant.
The question is that, whether the impugned judgement is sustainable in law?
The Complainant/Respondent adduced documentary evidence regarding payment before the Ld. Forum below, mentioning each transaction in details.
We find the copy of the Agreement for Sale dt. 11.05.2014 on record, which was executed between the Opposite Party and the Complainants, whereby a flat having super-built area of 900 sq. ft. approximately, towards south east facing of the 2nd floor within block-1 of building forming Middle Income Group being a part of “Shribhumi Meghmalhar Complex” in the said project, which was allotted in favour of the Complainant.
Our attention was drawn to an affidavit before a Notary Public dt. 16.11.2015, executed by Gopal Malakar being Opposite Party No.2. The Ld. Advocate for the Respondent submitted that instrument was not signed by the Complainant as a customer. The Ld. Advocate for the Appellant submitted that the money receipt was not signed by Gopal Malakar, but Gopal Malakar was one of the Directors of the said OP No. 1/the said Company.
It appears from page 84 of annexure of the Memo. of Appeal, that the OP No.5, being the present Appellant, resigned on 23.06.2014 from the post of the Director of the Company. It appears from page 86 of the Memo. of Appeal, the resignation of the Appellant was accepted at the Board meeting of the OP No.1/Company on 01.07.2014. I have already discussed, that the Agreement for Sale was executed on 11.05.2014, which reveals from page 26 of the Memo. of Appeal.
It would reveal from Exhibit ‘E’, running page 39 from the Memo. of Appeal, that the said Samit Dutta was a Director of the Company from 15.06.2015 to 13.08.2015. It appears from Exhibit ‘E’, that the Appellant was a Director since 15.06.2015. So, it was his subsequent appointment as a Director. At the time of execution of the Agreement for Sale, the Appellant was a Director of the Company and he resigned from the post subsequently, which we have discussed earlier.
As per Section 168 (2) of Companies Act 1956, “The Director who has resigned shall be liable even after his resignation for the offences which occurred during his tenure.” It appears the last payment was made by the Respondent on 07.05.2014 and the Agreement was executed on 11.05.2014. So, it appears the aforesaid Agreement was executed during tenure of the Appellant/OP No.5 as a Director and he sent the resignation letter on 23.06.2014. It is an admitted position that the Appellant/OP No. 5 has been appointed as Director on 11.11.2011 (at page no. 2 of paragraph 7 of written version of Appellant/OP No.5) and also (at page no.1 of paragraph 3 of the affidavit-in-chief filed by the Appellant/OP No.5) the resignation of the Appellant was also accepted on 23.06.2014. The Appellant was further reappointed on 15.06.2015 and further resigned on 13.08.2015.
The Ld. Forum below in page 3 of the impugned judgement observed, “However, for OP No.5 Complainant has not used the term “Director” in the cause title. But, on perusal of the written version, it is clear that OP No.5 has himself mentioned in Paragraph 6 that he used to work for gain in Shribhumi Realty Pvt. Ltd. Again in paragraph 7 OP No.5 has mentioned that he made an application and was appointed by the then Directors on 11.11.2011. Further, in paragraph 8 he himself stated that he held the post of ‘Director of Company’ and as per direction of OP No.1 his job was to monitor the field works, works relating to land and construction. Again in Paragraph 9, OP No.5 has stated that he was mere an employee and worked as ‘Working Director’.
Now, the question arises, as to why the OP No.5 remained so much confused in making statement in his written version. At one place he says that he was an employee and at other place he says that he was a Director. It is clear that Director of company are trustees and agents and so any liability towards company in respect of 3 persons is of a directors and they cannot shirk their responsibility by saying that they were employee. If, for the sake of argument, it is accepted also that he was an employee, it was the duty of OP No.5 to file document to establish that he was a salaried employee, which he has not done.”
So, the Appellant could not absolve his liability, because at the time of Agreement for Sale he acted as a Director of the Company. The Ld. Forum below refused the prayer made by the Complainant for litigation cost and compensation for sound reasons mentioned in the Judgement.
The fact, in a nutshell, is like that the Complainant paid total Rs.3,01,500/-. The construction of the flat was not completed within the stipulated period. So, the Consumer Complaint Case was allowed by the Forum below directing OP to pay Rs.3,01,500/- to the Complainant within 3 months, with a default clause, as stated earlier.
So, the impugned Judgement is well reasoned and we do not find any reason to interfere with the impugned Judgement. So, the Appeal is devoid of merit.
Accordingly, the Appeal is dismissed, on contest, against the Respondent No.1 and ex-parte against the rest with a cost of Rs.20,000/- payable by the present Appellant/Opposite Party No.5 of the Complaint Case to the Respondent No.1 within two months from the date of Judgement.
The impugned judgement is upheld. Order of stay, if there is any in connection with this appeal, stands vacated.
Let a copy of this judgement be sent to the Ld. DCDRF, Kolkata Unit-III (South) for information and necessary action.
Joint Registrar of this Commission is directed to do the needful accordingly.
