CAPT. LAVJI J. MISTRY vs MAZDA PROPERTIES LIMITED

THIS complaint was decided on merit by this Commission on 13.8.1998. The opposite parties went to the National Commission which has remanded the complaint for giving an opportunity to the opposite parties to submit their written versions and documents, if any, in support of their defence. Accordingly, all the opposite party Nos. 1 to 5 have submitted their written version which are taken on record. The complainant has submitted extract from the Registrar of Companies.

THE brief facts of the complaint are that the complainant booked Bungalow No. 10 to be constructed by the opposite parties Ahura Ashish Project at Bordi. THE complainant paid Rs. 4,50,000/- on various dates and the last amount of Rs. 1 lakh was paid on 5.6.1989. THE complainant has contended that although the full amount has been paid by the complainant, the opposite parties have neglected and failed to construct the bungalow and hand over the possession nor they have refunded the amount paid by the complainant. It is alleged that the opposite parties had entered in to a Benami transaction which resulted in disputes, civil litigation, encroachment, etc. THEre were civil litigations between a third party and the opposite parties and, therefore, the Bungalow has not been constructed. THErefore, the complainant has approached this Commission for the refund of Rs. 4,50,000/- jointly and severally by the opposite parties with 18% interest till the date of realisation. THE complainant has sought cost and compensation. THE complaint is supported by an affidavit. A copy of the letter of 1st February, 1988 addressed to the complainant specifically mentions that the Mazda Properties Limited have confirmed that the total cost of the above Bungalow No. 10 at the Company''s Ahura Ashish Project, Bordi will be Rs. 4,50,000/-. It is further stipulated in the letter that the sale price of Rs. 4.50 lakhs will not be increased by the Company even though the cost of construction may increase. This letter forms the contract. THE xerox copies of the receipts passed by the Mazda Properties Limited are enclosed alongwith the complaint. A copy of the notice issued by the complainant''s representatives to the opposite parties is placed on record. The opposite parties No. 1 to 4 have made a joint submission. They have admitted the receipt of Rs. 4,50,000/-. It is submitted by them that this was supposed to be a contributory Project and since the Company could not purchase an agricultural land in its name, it decided to purchase the same in the name of one Behram Irani. They have elaborately submitted the subsequent events resulting from the Benami transaction. They have explained about the civil suits, the proceedings under Section 145, Cr. P.C., the encroachment, etc. They have submitted that some of the persons like the complainant had already withdrawn their amount from the Company and after the death of the original Managing Director, Mr. Hoshie Deboo, the project landed in trouble particularly after the Benami transaction made in the name of Behram Irani. There was the problem of C.R.Z. also. These opposite parties had explained all these developments to explain the delay and the difficulties in completion of the Project and have submitted that the complainant who is fully aware of these facts and circumstances and the developments and he being a contributor, his complaint is not tenable and the same being false and frivolous, deserves to be dismissed. The opposite party No. 5 Mr. Todywala in his separate statement, has repudiated most of the submissions made by the opposite party Nos. 1- 4 and has stated that he is not the Director nor he is a part of the opposite party Company in any manner. He is one of the contributors like the complainant and has invested a substantial amount in the Project and that he stands on equal footing with the complainant and, therefore, the complaint against him should be dismissed as the complainant cannot have any claim against him. An extract in Form No. 32 regarding the particulars of appointment of Directors and Manager and changes among them, is produced before us and it reveals that Mr. Yezdi Jamshed Master has resigned from the Board of Directors on 14.8.1990. The complainant has not produced any evidence against F.S. Todywala and his capacity in the opposite party No. 1 Company.

We have heard both the parties. During the course of arguments, the following picture has emerged before us : (1) The submission of the opposite parties that the complainant is contributory Member of the opposite party has not been proved by any documentary evidence. The opposite parties have not produced any documentary evidence at all in support of their submission that the complainant is a contributor. There is not a single letter demanding further contribution after the complainant paid the entire consideration of Rs. 4,50,000/-, to the O.P. No. 1. It is further admitted by the opposite parties that the Company had the possession of the land in question. But, subsequently, the land was encroached in the year 1993 and further the civil and criminal proceedings started. Shri Shirish Shah, the O.P. No. 2 admitted during the course of argument that he is the Director. But, he submits that he is merely a chartered Accountant looking after the accounts of the opposite party No. 1 Company and he has no financial involvements in the Company''s affairs. However, he continues to be a Director under the provisions of the Companies Act. It was submitted before us that there are 3 more Directors of the Company. But their names were not disclosed to us. The opposite parties have admitted before us that the opposite party No. 1 Company is still in existence as on today and it has not been wound up. Only, the opposite party No. 4 Mr. Y.J. Master has resigned from the Board of Directors in August, 1990. (2) Considering the admissions made by the opposite parties and the documentary evidence submitted by the complainant, we find that the complainant is entitled to get the refund of the entire amount of compensation although the prayer clause mentions about the compensation. The amount of compensation is left to the discretion of the Commission. The complainant has prayed for the cost and interest @ 18% from the respective dates of payment till actual realisation. Normally, the Commission allows the amount of interest from the date of payment of the last instalment.

CONSIDERING the facts and circumstances of the case, the following order is passed : ORDER "The opposite party Nos. 1, 2 and 3 shall jointly and severally refund the amount of Rs. 4,50,000/- with 18% interest w.e.f. 5.6.1989 till the date of realisation, to the complainant. CONSIDERING the facts and circumstances of the case, we are not inclined to order payment of any compensation. However, the opposite party Nos. 1, 2 and 3 shall jointly and severally pay a cost of Rs. 5,000/-, to the complainant. The complaint against opposite party Nos. 4 and 5 is dismissed." Complaint allowed with costs.