Date of filing :1.8.2017

Judgment : Dt.19.12.2019

Mrs. Sashi Kala Basu, Hon’ble President

           This petition of complaint is filed under section 12 of C.P.Act, 1986 by Kamran Enterprise alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) Shribhumi Realty Pvt. Ltd., (2) Mr. 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 it booked a flat under HIG category in the project namely Shribhumi which was being developed by the OP No.1 Company and paid a sum of Rs.2,05,000/- in favour of the said Company through cheque being cheque No.215361. OP No.2 to 6 are the Directors / and or Former Directors of the OP No.1 the Company. On payment of the said sum of Rs.2,05,000/- OP issued money receipt and assured that the flat would be handed over in the beginning of 2016 with further assurance that the Complainant would be called upon to execute an agreement for sale in respect of the flat after passing of the sanctioned plan by the authorities. But, even after the expiry of 66 months OPs failed to live up to their promises and it was noticed that the project site was completely vacant and no construction was made. The Complainant has been cheated by the OPs. So, finding no alternative it made a representation through its Ld. Advocate on 29.8.2016 asking for refund of the booking amount along with interest @ 10%. But, in spite of service of the said notice, the OPs neither handed over the flat nor refunded the money. So, the present complaint has been filed praying for directing the OPs to refund the said sum of Rs.2,05,000/- along with interest @ 10%, to pay compensation of Rs.1,00,000/- and litigation cost of Rs.20,000/-.

            Complainant has annexed with the complaint petition, the declaration form, money receipt issued by the OP, notice dt.29.8.2016 sent by the Complainant through its Ld. Advocate.

            The case has been contested only by OP Samit Dutta by filing the written version. It is the specific case of the Samit Dutta that he had resigned from the OP company and had sent resignation letter to the Board of Directors of the OP Company on 23.6.2014 and the resignation was accepted by the Company and was intimated by a letter dt.2.7.2014. So, OP No.6 has no relation with the Company. Moreover, he was working as a mere agent of the Company and had never dealt with any money transaction with the Complainant. So, OP No.6 has prayed for dismissal of the case against him.

            During the course of trial, parties filed their respective affidavit-in-chief followed by questionnaire and reply thereto. Ultimately, argument has been advanced by the Complainant. No step was taken by the OP No.6 on the date of argument.

So, the only point requires determination is whether the Complainant is entitled to the relief as prayed for.

            Decision with reasons

            In support of its claim, that the Complainant booked a flat under HIG category with the OP No.1 Company in their project namely Shribhumi and paid a sum of Rs.2,05,000/-, Complainant has filed the money receipt as well as declaration form issued by the OP No.1, wherefrom it is evident that the said amount as claimed by the Complainant, was paid to OP Company by way of cheque dt.25.1.2012. It is not denied and disputed by the OP No.6 the only contesting OP that the Complainant has neither been handed over the flat nor been refunded the money paid by him. Contention of the OP No.6 is only that he had resigned from the OP No.1/Company and so he is not connected in any way with the case.

            However, the primary question which requires to be considered in this case is that the Complainant who admittedly is a partnership firm can at all be allowed the relief as prayed for. It is the admitted case of the Complainant that flat was booked for domestic purpose. Complainant namely Kamran Enterprise is a partnership firm. Firm cannot use the Flat for its domestic purpose.

            On a careful perusal of the complaint, it appears that it is nowhere mentioned as to whether the flat was booked for the domestic purpose of the employees/staff of the Complainant firm, neither there is any mentioned that the same was booked for the domestic purpose of its partners. Partnership deed has been filed by the Complainant, wherefrom it appears that there are three partners in the Complainant firm.

            So, Since the Complainant is a partnership firm, is a juristic entity and cannot use the flat for living, it may be either for the staff/or for partners of the firm or for the office but in the absence of any recital in these regard either in the complaint or any where during the evidence, the case of the Complainant cannot be maintainable and thus the relief as sought for cannot be allowed. In such a situation, complaint is liable to be dismissed.

          Hence

                           ordered

          CC/445/2017 is dismissed on contest against OP Samit Dutta and dismissed ex-parte against other opposite parties.

          Consequent to the disposal of the CC/445/2017, MA/19/2018 is also accordingly disposed of.