State Consumer Disputes Redressal Commission
Arun Kumar Das vs M/S. Amazan on 7 August, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/543/2016 ( Date of Filing : 22 Jun 2016 ) (Arisen out of Order Dated 11/05/2016 in Case No. EA/269/2015 of District Kolkata-II(Central)) 1. Arun Kumar Das 7/4, D.P.P. Road, Naktala, P.S. - Netaji Nagar, Kolkata - 700 047. ...........Appellant(s) Versus 1. M/s. Amazan Regd. office- Infinity Infotech Parks, Tower-1, 2nd Floor, Plot no. A3, Block-GP, Sector-V, Salt Lake City, P.S.- Electronics Complex, Kolkata - 700 091. 2. Dr. Sunil Bramhachari, Director, Amazan 242/3B, A.P.C. Road, Nandan Apartment, P.S. Burtolla, Kolkata - 700 004. 3. Dilip Kr. Gangopadhyay, Director, Amazan BG -36, Sector-II, Salt Lake City, P.S. Bidhannagar East, Kolkata - 700 091. 4. Manigrib Bag, Director, Amazan AH -208, Sector-II, Salt Lake City, P.S. Bidhannagar East, Kolkata - 700 091. 5. Gargi Biswas, Director, Amazan 9/5A, East Mall Road, P.S. Dum Dum, Kolkata - 700 080. 6. Debabrata Ghosh, Director, Amazan Flat no. C-302, Ramvatika, 201, N.S.C. Bose Road, P.S. Netaji Nagar, Kolkata - 700 040. 7. Joydeb Garai, Managing Director DL -202, Sector-II, Salt Lake City, P.S. Bidhannagar East, Kolkata - 700 091. ...........Respondent(s) BEFORE: HON'BLE MR. SHYAMAL GUPTA PRESIDING MEMBER For the Appellant: Mr. Krishnendu Bhattacharjee-Auth. person/, Advocate For the Respondent: Dipaloke Majumder., Advocate Sahini Bhattacharjee., Advocate Mr. Sudip Kumar Dutta., Advocate Dated : 07 Aug 2018 Final Order / Judgement Sri Shyamal Gupta, Member
Aggrieved with the decision of Ld. District Forum dated 11-05-2016, passed in EA/269/2015, this Appeal is moved by Sri Arun Kumar Das, the DHr.
Case of the Appellant, in short, is that, when the Respondent No. 1 failed/neglected to pay maturity value of his investment in the said company, a complaint case was filed before the Ld. District Forum which was subsequently decreed in his favour. Over non-payment of the decretal sum, an Execution case was filed by the Appellant against the Respondents. However, as the Ld. District Forum exonerated the Respondent Nos. 2 to 4 of all liabilities in the matter, the instant Appeal was filed.
Notice of this Appeal sent to Respondent Nos. 1and 7 were returned with postal remark 'left'. Therefore, paper publication was made in respect of both these Respondents, but they did not turn up. Notice was duly served upon all other Respondents. However, only the Respondent Nos. 2,3 and 4 turned up to defend their case through their Ld. Advocates.
Heard the parties and gone through the documents on record.
It appears from the copies of Form No. 32 that the Respondent Nos. 3 and 4 joined the Respondent No. 1 Company as Additional Directors (Non-Executive) on 01-04-2011 and subsequently, on 30-09-2011, they were re-designated as Directors of the Company (Non-executive). Similarly, Respondent No. 2 too was re-designated as Director of the Respondent No. 1 Company w.e.f. 30-09-2011. It also transpires from the document containing details of Board of Directors of the Respondent no. 1 company that the Respondent Nos. 3 and 4 ceased their Directorship on 14-02-2014. Significantly, the concerned investment was made on 22-03-2012 which was matured on 22-03-2014. The Respondent No. 3 though filed copy of a letter dated 31-08-2012, whereby he expressed his desire to resign from the Respondent No. 1 Company, there is nothing to show that the same was accepted by the Company and there is nothing on record that he vigorously followed up the matter with the Respondent No. 1 Company thereafter. In any case, it transpires that the concerned investment was made while he was associated with the Respondent No. 1 Company.
It is claimed by the Ld. Advocates for the Respondent Nos. 2 to 4 that being independent Directors (Non-Executive), they were not associated with the day to day proceedings of the Company and they had no inclination/personal knowledge regarding the allegations made in the petition of complaint. Accordingly, the impugned order was perfectly in order.
On due consideration of the facts and circumstances of the case, as also the materials on record, I, however, cannot endorse the view of the Ld. District Forum. It is clearly stipulated in the letter being no. 2/13/2003/CL-V dated 25-03-2011 of the Ministry of Corporate Affairs, Govt. of India that, while considering the Non-Executive Directors for including in the list of officers in default for a particular violation of the Companies Act, it should be examined whether the violation had taken place with the knowledge attributable through Board process, with his consent or connivance and whether he acted diligently or not.
Though the Respondent Nos. 2 to 4 feigned complete ignorance about the alleged non-payment of money to the depositor, they have not filed relevant copies of Board Resolutions/Minutes of Meeting in order to prove that they never participated in Board meetings and thereby they were not privy to the day to day affairs of the Company.
Moreover, it is rightly pointed out by the Ld. Advocate for the Appellants that by reviewing its own order, the Ld. District Forum contravened the provisions of the Consumer Protection Act, 1986. No doubt, the Ld. District Forum enjoys no such power to review its own order. Thus, once it held the Respondent Nos. 2 to 4 guilty and initiated due proceedings against them, there was no scope left before it to take a u-turn and exonerate them of all liabilities in the matter. If the Respondent Nos. 2 to 4 had any grievance, they ought to move Appeal before this Commission within the statutory period of limitation which they did not do. Thereby, the order of the Ld. District Forum attained finality and thus, the Respondent Nos. 2 to 4 cannot escape their liability in terms of the decree passed in the complaint case.
The Appeal, accordingly, succeeds.
Hence, O R D E R E D the Appeal stands allowed against the Respondents. The impugned order is hereby set aside. [HON'BLE MR. SHYAMAL GUPTA] PRESIDING MEMBER