Judgment : Dt.22.5.2017
Mrs. Balaka Chatterjee, Member
This petition of complaint is filed under Section 12 of C.P.Act by Anindita Bhowmick Paul alleging deficiency in service on the part of (1) Shribhumi Realty Pvt. Ltd., (2) Mr. Gopal Malakar, (3) Mr. Biswabrata Maity, (4) Mr. Sagar Ganguly and (5) Mr. Samit Dutta.
Case of the Complainant in brief is that being aware of the various housing projects of the OP over internet advertising agencies the Complainant made contact to a representative of the OP No.1 Real Estate Co. for purchasing a flat and the said representative provided her all details of the projects of the OP including a brochure of the said projects. The Complainant has further stated that having been convinced by the words of the said representative and going through the brochure the Complainant decided to book an MIG category flat situated at Maghamalhar Project and paid a sum of Rs.1,00,000/- towards booking amount in favour of Shribhumi Reality Pvt. Ltd. through cheque bearing No.937005 dt.23.08.2011 drawn on UCO Bank for confirmation of the booking of a flat of MIG category to be constructed under the project launched by OP and receiving the said amount of Rs.1,00,000/- the OP No.1 issued a money receipt dt.20.8.2011 bearing No.1427. The Complainant made further payment of Rs.50,000/- on 15.6.2016 by cash and a moey receipt bearing No.1427G was issued to the Complainant by the OPs. The Complainant further stated that second part payment of Rs.1,30,000/- was paid by her through NEFT dt.21.5.2014 to execute an agreement for sale between her and OP No1. NEFT dt.23.5.2017 against which OP issued money receipt. It is further stated by the Complainant that the OPs had orally assured him of handing over the said flat o n the beginning of the year 2016 and further assured that after obtaining the sanctioned plan from the concerned authority the Complainant would be called upon to execute an agreement for sale in respect of the said flat. It is the specific allegation of the Complainant that the OPs did not even start the said project. The Complainant observing such inaction on the part of the OPs decided to get back the invested amount made a representation dt.12.7.2016 claiming refund of the booking amount along with interest @ 10% to the Complainant which OP Nos.3 to 5 duly received and intimation was served upon OP No.2 and in r espect of OP No.1. The letter returned with postal remark ‘addressee moved’ but to no effect. According to the Complainant that the OPs. Adopted unfair trade practice and also they have deficiency in providing service to the Complainant, accordingly, the Complainant has prayed for refund of Rs.3,20,000/- along with interest at the rate of 10% for 26 months which amounts to Rs.69,333/, to pay Rs.1,00,000/- towards compensation and Rs.20,000/- towards cost of litigation.
Notices were served upon the OPs. OP No.5 has turned up and contested the case by filing written version. The OP Nos.1 to 4 did not turn up. So, the case was heard ex-parte against them.
The OP No.5 denied all allegations as made out in the petition of complaint and stated by filing the instant written version that due to personal problem and in convenience he was not working from March 2014 and, thereafter resigned on 23.6.2014 from the OP No.1 and since then he has no knowledge about the company or its Directors. Accordingly, he prayed for rejection of the complaint
The Complainant and the contesting OP No.5 adduced evidence on affidavit followed by cross examination in the form of questionnaire and the reply thereto.
In course of argument Ld. Advocate for the Complainant has narrated the facts as stated in the petition of complaint and made prayer for refund of deposited mount along with interest @ 10% p.a. payment of compensation and litigation cost from the end of the OPs. Ld. Advocate for the Complainant relied upon Sec.168(2) of Companies Act, 2013 and stated that as per provision of the said section no Directors can shed their liability to compensate the Complainant.
Ld. Advocate for the OP No.5 has submitted that his client has already resigned from the OP No.1 Company and therefore, he has no liability regarding the alleged loss suffered by the Complainant. As regards this Ld. Advocate for the OP No.5 has relied upon the decision of the Hon’ble High Court, Delhi in RFA 14/2010 and C.M. No.495 of 2010 [Mukesh Hans & anr. Vs Smt. Uma Bhasin and Ors.] date of decision 16.8.2010.
Points for determination
Is Complainant is a consumer under OP?
Is there any deficiency in providing service on the part of the OPs?
Is Complainant entitled to the relief as prayed for?
Decision with reasons
All points are taken up together for comprehensive discussion and decision.
It is evident from the document on record that the Complainant paid Rs.3,20,000/- towards booking amount of a flat along with an open garage to be constructed at the proposed project of the OPs.
It is observed that no agreement has been executed by and between the OPs and Complainant. However, there are several cases filed before this Forum against the self same OPs in respect of the self same project wherefrom it has been evident that the OPs failed to complete the project as per terms of the agreement executed by and between the respective purchaser and OP No.1. Keeping in mind the above mentioned state of affairs we think it will be just and proper if the Complainant get back the amount deposited with the OP No.1.
OP No.5 have contested the case. OP No.5 by his respective written versions stated inter alia, that he has resigned from the OP No.1 company and therefore are not liable in any way in respect of non-delivery of the flat to the Complainant.
However, as per provision of Sec.168(2) of Companies Act, 2013 that the Director who has resigned shall be liable even after his resignation for the offences which occurred during his tenure.
But, it is well settled that the nature of such liability, is tortuous and not to any contractual obligation regarding third party. In the instant case no commission of tort has been alleged against the former Directors i.e. OP No.3, 4 & 5. Therefore, they cannot be held liable on behalf of the OP No.1 Company.
It is, however, observed that the OP No.2 by swearing affidavit indemnified the OP No.3 and therefore the OP No.3 may be exempted from that liability which will be shifted to the OP No.2.
The Complainant has prayed for refund of the deposited amount. We are of opinion that the Complainant deposited the same with hope for having her own flat which ultimately did not come into reality. OPs are liable to refund the deposited amount.
Considering the circumstances, we are inclined to not to pass any order in respect of interest on the said deposited amount and as to compensation as well as cost of litigation.
In the result, the petition succeeds in part.
Hence,
ordered
That CC/379/2016 is allowed in part ex-parte against OP No.1 & 2 and dismissed on contest against the OP No.5 and dismissed ex-parte against the OP Nos. 3 & 4.
The OP Nos.1 & 2 are directed to refund Rs.3,20,000/- to the Complainant within one month from the date of communication of this order to OP Nos.1 & 2.
