Date of filing :13.10.2017

Judgment : Dt.24.6.2019

Mrs. Sashi Kala Basu, Hon’ble President

         This petition of complaint is filed under section 12 of C.P.Act, 1986 by Mousumi Banerjee 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 HIG Category in the project (Shribhumi) and booked the same on payment of a sum of Rs.2,00,000/-, in favour of the Shribhumi Realty Pvt. Ltd. On payment of Rs.2,00,000/- towards confirmation, declaration form 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.25.01.2017 through her Ld. Advocate, addressed to the OP No.1 asked for refund of the money. Notice was received by the OP No.2 & 6 and notice was refused by OP No.4 . Against OP No.1, 3 and 5  endorsement was addressee moved  and unclaimed. But in spite of sending of 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 return Rs.2,00,000/- towards booking amount paid to OP No.1 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 one declaration form and the copy of the notice sent through Ld. Advocate asking for the refund of booking amount of Rs.2,00,000/- along with interest .

            The case has been contested only by OP No.5 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.5 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.5 has argued that as he was not a shareholder but a mere agent of the Company, he is  not liable for any act of the OP Company. He has also argued that as OP No.5 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 for a comprehensive discussion in order to avoid repetition. Complainant has claimed that she booked a flat under HIG category from the OP Company and has paid a sum of Rs.2,00,000/- on 10.08.2013. According to her in spite of making payment of such booking amount, she has neither been handed over the flat nor has been refunded the amount. But, in order to substantiate her claim that she paid Rs.2,00,000/- Complainant has only filed a declaration form, no money receipt has been filed acknowledging receiving of amount by the OP Company. The declaration form which has been filed by the Complainant does not find any acknowledgment from the OP about receiving of the amount of Rs.2,00,000/- on 10.08.2013 as claimed by the Complainant. In the said declaration relied upon by the Complainant there is only reflection about payment plan and about application money being Rs.2,00,000/-. Since no receipt has been filed, only by a seal of OP Company in the said form by itself, cannot be a sufficient document to establish the claim of the Complainant about payment of Rs.2,00,000/-. It may be pertinent to point out that other consumers have also filed the case against the present OP Company and in all those cases, money receipt has been filed showing the payment of the amount as claimed by the respective consumers. The money receipt is issued by the OP Company on receipt of the said booking amount as alleged. But it is strange that in this case barring the declaration, there is no other document filed by the Complainant that such amount was paid. So, as the declaration relied upon by the Complainant is not a sufficient document to establish the claim of payment of Rs.2,00,000/-, prayer of the Complainant for directing the OPs to refund the said amount cannot be allowed. It is true that the case has been proceeded ex-parte against OPs barring the OP No.5 who only has challenged his status as Director of the Company at the relevant period but it is a settled principle of law that the party seeking the relief and making the allegations, has to prove the same by cogent evidence. In these view of the matter, Complainant is not entitled to the relief as prayed for and thus the complaint is liable to be dismissed.

`           These points are answered accordingly.

            Hence

                                ordered

            CC/574/2017 is dismissed ex-parte against OP No.1 to 4 and OP no. 6 and on contest against OP No.5.

            Consequent to the disposal of main case, MA/69/2018 is also disposed of accordingly.