State Consumer Disputes Redressal Commission
Mani Grib Bag vs Sri Sannyasi Chandra Malik on 8 January, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/416/2016 (Arisen out of Order Dated 13/04/2016 in Case No. Complaint Case No. CC/107/2015 of District Howrah) 1. Mani Grib Bag 208, Salt Lake Sector - II, Block - AH, Bidhannagar (East), Kolkata - 700 091. 2. Dilip Kumar Gangopadhyay BG - 36, Salt Lake, Sector - II, Bidhannagar (East), Kolkata - 700 091. ...........Appellant(s) Versus 1. Sri Sannyasi Chandra Malik S/o, Sri Bipin Chandra Malik, Vill & P.O - Bikihokla, P.S - Panchla, Dist - Howrah. 2. Amazan Capital Ltd, rep by its Directors Infinity Infotech Parks, Tower - 1, 2nd Floor, Plot No. A3, Block - GP, Sector - V, salt lake City, Kol - 700 091. 3. Joydeb Garai DL - 202, Sector - II, Salt Lake City, Kol - 700 091. 4. Sunil Kumar Brahmachari 242/3B, APC Road, Nandan Apartment, Shyambazar, Kolkata - 700 004. 5. Gargi Biswas 9/5A, East Mall Road, Dum Dum, Kolkata - 700 080. 6. Debabrata Ghosh C - 302, Ramvatika, 201, NSC Bose Road, Kolkata - 700 040. 7. Basudeb Garai AAMDOB, Chakdaha - AAMDOB, Lakhuriya, Manglakot, Burdwan, Pin - 713 131. 8. Sri Avijit Mondal S/o, Abani Mondal, Vill & P.O - Bikihakola, P.S - Panchla, Dist - Howrah. ...........Respondent(s) BEFORE: HON'BLE MR. SHYAMAL GUPTA PRESIDING MEMBER HON'BLE MR. UTPAL KUMAR BHATTACHARYA MEMBER For the Appellant: Ms. Sohini Bhattacharyya, Advocate For the Respondent: Mr. Nirmal Kr. Kamila., Advocate Mr. Dipaloke Majumder., Advocate Mr. Sudip Kumar Dutta., Advocate Dated : 08 Jan 2018 Final Order / Judgement Sri Shyamal Gupta, Member
This Appeal is directed against the Order dated 13-04-2016 passed by the Ld. District Forum, Howrah in C.C. No. 107/2015 whereof the complaint has been allowed.
In short, case of the Complainant is that, he invested a sum of Rs. 6,00,000/- for purchasing shares of the OP No. 1 company. Complainant invested the said sum for a period of 72 months and she was supposed to get specified MIP and dividend @ 16% against such investment. Although she got due payment till 20-10-2012, thereafter the OP No. 1 stopped paying any money to her. Although she ran from pillar to post, the OPs did not bother to redress her grievance. Hence, the complaint.
On notice, OP Nos. 3,5 & 6 contested the case jointly by filing WV. The primary contention of these OPs was that they were roped in as Non-Executive Director of the OP No. 1 company and they did not receive any remuneration from the said company. Even no appointment letter was issued to them and OP No. 2, MD of the OP No. 1 company was the family friend of these OPs. Denying any involvement with the OP No. 1 company, these OPs prayed for dismissal of the complaint against them.
Decision with reasons Be it mentioned here that notice sent to Respondent Nos. 2,3 and 7 were returned undelivered and therefore paper publication was made against these Respondents. However, due notice was served upon all other Respondents, out of which Respondent Nos. 1,4 and 6 appear through their respective Ld. Advocates.
Ld. Advocate for the Respondent No. 4 submitted that this Respondent was never associated with the Respondent No. 2 company. Therefore, he prayed for exonerating him from any liability of paying the decretal amount to the Respondent No. 1.
It appears from the List of Directors in respect of the Respondent No. 2 company downloaded from the website of the RoC that the name of Respondent No. 4 does not feature in the said list. No other document is placed before me from the side of the Respondent No. 1, wherefrom the involvement of the Respondent No. 4 with the Respondent No. 2 can be established. Accordingly, I am inclined to exonerate this Respondent from the liability of making any payment to the Respondent No. 1.
However, Appellants cannot abdicate their liability to pay back the invested sum to the Respondent No. 1 given that as per RoC record, they were inducted in the Respondent No. 2 company as its Director on 30-09-2011 and both ceased their Directorship in the said company on 14-02-2014.
The Appellants submitted copy of a Circular dated 25-03-2011, issued by the Ministry of Corporate Affairs, Govt. of India and also an order passed by SEBI dated 03-08-2017 with a view to abdicate their liability towards the Respondent No. 1.
According to the afore-mentioned Circular of Ministry of Corporate Affairs, 'Independent Directors' of a listed company cannot be treated as Officer in default. It seems, on the basis of representation/submission made before the SEBI, the Appellants were exonerated from the liability of refunding money to investors by virtue of above referred order.
However, on a closer look of the said order of SEBI, I find that the aforesaid order was passed merely on the basis of oral submission made before the SEBI by the Appellants, where they described themselves as 'Independent Directors' of the company.
On going through the documents on record, however, I do not come across any such documentary proof to suggest that the Appellants were associated with the said company as 'Independent Directors' or 'Non-Executive Directors'. According to the List of Directors downloaded from the website of the RoC, the status of the Appellants has been shown as 'Director'. It is significant to note here that neither in the Form-32 nor in the resignation letter, have Appellants been shown as 'Independent/Non-Executive Directors'. Merely because the Appellant did not sign the annual reports of the company, that is no substantive proof of the fact that Appellants were not involved into the decision making process of the company.
Further, the relevant copy of Board Resolution, by which Appellants were inducted into the Board of the Company is not filed. Similarly, 'Minutes of Meeting' of the company is also not filed by the Appellants to substantiate their claim that they were not associated with the day to day affairs of the Company. In fact, contrary to the claim of the Appellants that no appointment letter was issued to them, the RoR document clearly shows that original date of appointment of both the Appellants in the Respondent No. 2 company was 01-04-2011 and they were appointed as Director of the company on 30-09-2011. Further, if indeed they were not issued any appointment letter by the Respondent No. 2 company, there was no need for them to officially tender their resignation or discharge necessary formalities to facilitate their cession with the said company formally.
It seems, in its order, the SEBI took note of the fact that concerned investments were made prior to joining of the Appellants. However, in my considered opinion, that cannot be a cogent ground to exonerate the Appellants of due liability towards the Respondent No. 1. Notwithstanding the Respondent No. 1 invested his money in the Respondent No. 2 company on 20-08-2010, 04-10-2010 and 04-02-2011, respectively, it is important to note that the same was invested for a tenure of 6 years and the Respondent No. 1 did receive MIP till 20-10-2012.
Further, it is though asserted by the Appellants in their WV that CA No. 326/2015 arose out of C.P. No. 217/2013 is pending before the Hon'ble High Court, Calcutta, not a single scrap of paper is filed before me to show that these Appellants are in anyway involved in the said case.
For all these reasons, I do not find any merit in the present Appeal.
Appeal, accordingly, fails.
Hence, O R D E R E D The Appeal stands dismissed on contest against the Respondent No. 1. The impugned order is hereby otherwise affirmed save and except the fact that the Respondent No. 4 has no liability to pay any decretal amount to the Respondent No. 1.
[HON'BLE MR. SHYAMAL GUPTA] PRESIDING MEMBER [HON'BLE MR. UTPAL KUMAR BHATTACHARYA] MEMBER