Pritam Bhattacharjee And Ors vs Shashanka Debnath And Ors

S. Talapatra, J

Heard Mr. DK Biswas, learned counsel appearing for the defendant-appellants as well as Mr. A. Dasgupta, learned counsel appearing for the plaintiff-respondents.

By means of this appeal filed under Section 96 of the CPC, the judgment dated 17.10.2015 delivered in Title Suit 07 of 2012 by the Civil Judge, Senior Division, North Tripura, Dharmanagar has been challenged.

The respondents no. 1 to 10 instituted the suit for declaration whether the plaintiffs are entitled to get Rs. 19,28,400/- from the defendant-respondents with consequential reliefs of the permanent injunction from selling the suit properties and for attachment of suit properties for realizing the said money.

Admittedly, the plaintiff-respondents were the agents of the defendant-respondent no.11 herein, namely, M/s Daffodil Associates Limited and the plaintiff-respondents sold some chits such as flat/plot booking certificate (Exhibit-5) to the depositors, who are however, not party in the suit. According to the plaintiff-respondents, M/s Daffodil Associates Limited floated those chits to allure the depositors to make investment in the companies on a period based booking. On maturity, they were assured to get the accrued financial benefits as per the terms. The plaintiffs have stated very categorically that they had been instrumental as the agent of the said company in collecting the huge amount of money and if the money is recovered by way of the suit that will be distributed to the depositors. It is also the case of the plaintiffs that despite repeated requests, the respondent no.11 did not pay the maturity amount to some of the depositors, whose detail however has been given in the plaint itself in a tabular form. It is also an admitted position that the said company had a landed property measuring 1.63 acres which has been sought to be attached in the pre- judgment stage for purpose of realization of money but, from reading of the judgment it surfaced that such prayer was not allowed and, even no ground has been made on that aspect in the Memorandum of Appeal.

The defendants no. 1,2 and 3 did not appear in the proceeding to contest the suit. However, the defendants no. 4 and 5 appeared and contested the suit by filing written statement where they have categorically denied the claim of the plaintiff and also have taken a plea that there is no cause of action to institute the suit against them. Several issues were framed, which are as under:

(i) Is the suit is maintainable in its present form?

(ii) Whether the plaintiffs are the agents of the Defendant No.1 company viz. m/s Daffodils Associates Ltd.?

(iii) Whether the defendants No. 4 & 5 were the local authority of the Defendants No. 1 company having their Sub-Divisional Office at Rajbari, Dharmanagar?

(iv) Are the plaintiffs entitled to get decree as prayed in their plaint?

(v) To what other relief/relieves the parties to this suit are entitled to get?

The plaintiffs examined as many as three witnesses and exhibited five documents in support of their cause. Thereafter, the trial court held that the suit is maintainable and the plaintiffs are the agents of the defendant-company and finally it has been held that the defendants are jointly liable to make the payment to the depositors through their agents. According to that, the trial court held that the amount have to be paid to the depositors who are not party in the proceeding through the plaintiffs. Thus, the trial court came to an inference that a sum of Rs. 12,38,400/- is liable to be recovered from the defendants and, accordingly, the decree has been drawn up. Both the judgment and decree have been challenged in this appeal.

Having perused the evidence as well as the pleadings, this court is confronted with two fundamental questions, which are as under:

(i) Whether the plaintiffs do have the status to raise the cause for the depositors who are entirely invisible in the proceeding when no document has been filed on their behalf demonstrating that the plaintiffs have been authorized by the depositors to institute the suit on their behalf ? and,

(ii) Whether the terms as laid down in Exhibit-5 which reads as follows has been complied by the depositors or not?

"4. The flats/plot holder shall return duly discharged Certificate to the Company at least 30 days prior to the date of final settlement of the scheme".

Atleast from inspecting this certificate (Exhibit-5), this can be stated that the certificates were not placed to the company after duly discharging the same to have the maturity payment. The plaintiff did not make any statement in this regard in respect of the said term which is one of the important terms and conditions of the for getting the maturity payment. There is no such statement available in the plaint even no evidence is available in the records.

This court is really not in a situation to find out that how the plaintiffs have acquired their status to institute the suit. They were supposed to work as the agents of the company. If any deception is caused by the plaintiff-company, the law shall take its own course. If the depositors are aggrieved by any action of the defendant-company, that may give rise to cause of action for institution of the suit. It is the depositor or their agents duly appointed may institute the suit. Being the agents of the company, the plaintiff-respondents do not have any locustandi to institute the suit.

For deciding these two questions, as framed by us, the other issues have become redundant and do not call for further consideration. Hence, the suit is bound to be dismissed as not maintainable and, accordingly, the suit is dismissed. In consequence thereof, the appeal stands allowed.

Draw the decree accordingly. Send down the records thereafter.