Ashis Samaddar vs Ashok Kumar Dutta & Ors

Prem Narain, J

The present revision petition has been filed by the petitioner Mr Ashish Samaddar against the respondents Mr Ashok Kumar Dutta and Ors., against the order dated 06.04.2017 passed by the West Bengal State Consumer Disputes Redressal Commission, Kolkata ('the State Commission') in First Appeal no. 53 of 2016.

The brief facts of the case are that the opposite parties, as mentioned in the complaint, approached the respondent no.1 who is the original complainant to invest in the scheme of the opposite parties. It was promised that if Rs.5.00 lakh are invested, he will get Rs.6040/- per month. Amount for the first month was paid and the complainant was again approached to deposit more amount under the scheme. The complainant deposited Rs.2,00,000/- more under the scheme. No further amount was paid by the opposite parties to the complainant. Hence, the complainant filed a complaint before the District Forum and the District Forum vide its order dated 28.10.2015 allowed the complaint as under:

"That the complaint be and the same is allowed on contest against OP no.1 and ex parte against OP no.2 and OPs (i) to (vi);

That OP no.1 is directed to pay 50% of adjournment cost of Rs.2000/- to the complainant and to deposit remaining 50% to the State Consumer Welfare Fund, as per order no.6 dated 03.06.2015, within 30 days from the date of this order;

That the OP no1, OP no.2 and OPs (i) to (vi) are jointly and severally directed to refund the Principal Amount of Rs.7.00 Lakh (Rupees seven lakh only) with an interest of 9% on Rs.5,00,000/- for one month and on Rs.7,00,000/- from 28.03.2013 till date of realisation within 30 days from the date of this order;

That on failure of complying with any of the above orders from serial 2 to 3 in time, all above stated OPs shall have jointly and severally to pay an amount of Rs.200/- per day after expiry of the stipulated period, till realisation to be deposited with the W B S C W Fund."

The petitioner preferred an appeal before the State Commission and the State Commission vide its order dated 06.04.2017 dismissed the appeal of the petitioner.

Hence, the present revision petition.

Heard the learned counsel for both the parties and perused the record. The learned counsel for the petitioner has stated that the District Forum did not consider that the appellant was not the director of the company Heaven Infra Projects Limited. He further stated that the District Forum ought to have considered that the appellant is one of the agent of the Heaven Infra Projects Limited at the time of passing the judgment dated 06.04.2017 under revision.

On the other hand, AR of the respondent complainant stated that Rs.7.00 lakh were invested in the scheme of the opposite parties with the promise that the complainant will get fixed return every month, however, the same was given only for one month and no further payments were made to the complainant. The District Forum has passed the order of refund of Rs.7,00,000/- along with 9% per annum interest which is quite reasonable. The State Commission has already granted relief to the petitioner by setting aside the part order of the District Forum in respect of penalty of Rs.200/- per day for not paying the amounts ordered. The State Commission has clearly observed that the appellant was the Director of the Company when the purchase was made. Therefore, he cannot escape the responsibility as a Director for refunding the amount of investment by the complainant.

I have carefully perused the record and considered the arguments of the learned counsel for the petitioner as well as of the AR of the respondent no.1. Coming first to the allegation of the petitioner that the complaint was barred by limitation , it is seen that the opposite parties neither paid the monthly interest or refunded the amount paid by the complainant and therefore, the cause of action continued till the date of filing of the complaint. Therefore, I do not see any merit in the assertion of the petitioner that the complaint is barred by limitation.

Coming to the another objection of the petitioner that the petitioner was not a Director and was only an agent of the company, it is seen that the State Commission has observed the following which has not been controverted during the arguments.

"It is claimed by the Appellant that he is not the Director of the company, namely, "Heaven Infra Projects Ltd.", but merely its agent. However, on-going through the internet copy of search report from the portal of Ministry of Corporate Affairs dated 29-01-2013, it transpires that the Appellant was appointed as Director of the said company on 04-09-2012. There is nothing to show that the Appellant resigned from the Directorship of the said Company prior to 27-02-2013, i.e., the date when the Respondent No. 1 through the Respondent No. 2 allegedly handed over a sum Rs. 5,00,000/- to the Appellant. Thus, we find no reason whatsoever to disbelieve the contention of the Respondent No. 1 that the Appellant was a Director of the said Company. Looking from a different angle, such documentary proof manifest the fact that the Appellant has not approached either the Ld. District Forum or this Commission with clean hands".

From the above, it is clear that the petitioner was a Director of the Company at the relevant time when the investment was made. In respect of the liability of the petitioner, the State Commission has further observed the following:

"In so many words, the Respondent No. 1 made it absolutely clear that the Appellant was at the helm of affairs of the Company. From the 'List of signatories' on record, it appears that the name of the Appellant prominently features in the said list. It is also alleged in the petition of complaint that the Appellant enticed the Respondent No. 1 to invest more money in the company which prompted the latter pump in further sum in the MIS Scheme of the company after depositing considerable money with the said company initially. At the insistence of the Appellant, the Respondent No. 1 deposited Rs. 2,00,000/- with the said company on 28-03-2013 and in the very next month, i.e., in April, 2013, the Company put its shutter down. There is no reason to believe that despite holding an authoritative position in the said company, the Appellant was totally ignorant of the mal-intention of the Company.

Indications are ripe that the Appellant was in-charge of and responsible for the conduct of the business of the company at the relevant time. Keeping in mind the fact that (1) Appellant has resorted to falsehood in charting out his relationship with the company; (2) the Respondent No. 1 has not named any other Director of the company save and except the Appellant for misguiding him investing his hard-earned money in the company; (3) Respondent No. 2 has not refuted the allegation of the Respondent No. 1 as of accompanying the latter to the bank while with drawing Rs. 4,00,000/- from the Bank or handing over the cash to the Appellant in presence the Respondent No. 1; (4) the matter of investing a sum of Rs. 7,00,000/- is not in dispute; (5) the law set out by the Hon'ble Supreme Court that if offence has been committed by the Company and it is found that offence has been committed with consent or connivance or it is attributable to any negligence on the part of any Director, Manager, Secretary or other Officer of the company, such Director etc. would also be deemed guilty of such offence, and lastly, (6) there being overwhelming evidence to show that the misfortune of the Respondent No. 1 is attributable to gross neglect misfeasance and/or breach of duty on the part of the Appellant, we are of considered opinion that the Appellant cannot shrug off his responsibility to compensate the loss to the Respondent No. 1.

In view of this, the impugned Order does not appear to be suffering from any jurisdictional error However, the award for punitive damage @ Rs. 200/- per month being too harsh, we deem it proper and fair to struck off the same.

The Appeal, thus, succeeds in part. Hence, A/53/2016 be and the same is allowed in part on contest against the Respondent No. 1. The impugned order is modified to the extent that the order for punitive damage @ Rs. 200/- per diem is hereby struck off. The impugned order must be complied with within a period of 45 days hence".

Clearly when the company is not coming forward to pay the amount of investment to the complainant, the Director has to bear the responsibility for making payment to the complainant. From this point of view, I do not find any error in the order of the State Commission.

Based on the above discussion, I do not find any illegality, material irregularity or jurisdictional error in the order dated 06.04.2017 passed by the State Commission which calls for any interference from this Commission. Accordingly, revision petition no.1973 of 2017 is dismissed with parties bearing their own costs.