State Consumer Disputes Redressal Commission
Chandra Kumar Santra vs Sri Joydev Gorai on 24 September, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/563/2016 ( Date of Filing : 28 Jun 2016 ) (Arisen out of Order Dated 17/05/2016 in Case No. EA/149/2013 of District North 24 Parganas) 1. Chandra Kumar Santra Andalmore, P.O. - Andal, Dist. Burdwan, Pin- 713 321. ...........Appellant(s) Versus 1. Sri Joydev Gorai Managing Director, Amazon Agro Products & Amazon Capital Lt., Infinity Infotect Parks, Tower-1, 2nd floor, Plot no.A3, Block-GP, Sector-V, Salt Lake City, Kolkata. 2. Sri Basudeb Gorai Amdoba, Kalanpur, Mangalkot, Burdwan, Company Director. 3. Smt. Gargi Biswas 9/5A, East Malroad, Dum Dum, Kolkata - 700 080. 4. Debabrata Ghosh, Company Director, Flat no. C-302, Ramvaytika, 201, N.S.C. Bose Road, Kolkata - 700 040. ...........Respondent(s) BEFORE: HON'BLE MR. SHYAMAL GUPTA PRESIDING MEMBER HON'BLE MR. UTPAL KUMAR BHATTACHARYA MEMBER For the Appellant: Mr. Alok Mukhopadhyay, Advocate For the Respondent: Mr. Sudip Kumar Dutta., Advocate Dated : 24 Sep 2018 Final Order / Judgement Sri Shyamal Gupta, Member
Challenging the Order dated 17-05-2016, passed by the Ld. District Forum, North 24 Parganas in EA/149/2013, present Appeal is moved by Sri Chandra Kumar Santra u/s 15 of the Consumer Protection Act, 1986.
Case of the Appellant, in short, is that, as the Respondents did not act upon the decree passed in the complaint case, he filed necessary Execution Case in accordance with the law of the land. Meanwhile, an Appeal moved against the final order passed in the complaint case was dismissed by this Commission over limitation ground. Thereafter, although the Execution Case gained momentum, suddenly, acting upon the letter of dated 27-01-2016, issued by the Dy. Official Liquidator, High Court, Calcutta, the Ld. District Forum dismissed the Execution Case vide its impugned order; hence, this Appeal.
Having heard the Ld. Advocates of the parties and after going through the documents furnished on record, it appears that by the afore-mentioned letter the Dy. Official Liquidator, High Court, Calcutta asked the Ld. District Forum not to proceed with the Execution Case against Amazon Agro Products Ltd. without taking due leave from the Hon'ble Court.
However, it seems that the Ld. District Forum overlooked a vital aspect in the matter. The instant Execution Case was not only moved against the afore-mentioned company, but also against the Managing Director and Directors of the said Company, as also against the Managing Director of Amazan Capital Ltd.
There is nothing to show that any restraining order has been passed by the Hon'ble Court to proceed against M/s Amazan Capital Ltd. or other persons named in the cause title of the Execution Case.
Company Law incorporates personal liability on the Directors or members of a company in certain cases despite the cardinal principles of separated personality and limited liability. There are certain statutory provisions which make liable those who are behind the company like, * Fraudulent conduct of business (Sec. 542 of the Indian Companies Act, 1956); * Misrepresentation in the Prospectus(Sec. 62 of the Indian Companies Act, 1956); * Contractual liability.
The burden of proof of acting bona fide falls upon the Directors which, however, is not proven by the persons concerned. No copy of the Memorandum of Association or the Articles of Association of the company concerned is placed on record to show that the persons named in the Execution Case were not privy or involved with the day to day functioning of the company; rather, it appears that it was just the opposite. In our considered opinion, therefore, the Respondent persons cannot evade their personal liability to repay the promised sum to the Appellant.
As per law subsidiary company is a separate legal entity and there being nothing to show that the Hon'ble Court has accorded any impunity to M/s Amazon Capital Ltd., we feel that the Ld. District Forum was free to proceed against this Company and its officials in order to impart justice to the Appellant.
In view of this, we cannot endorse the view expressed by the Ld. District Forum and set aside the impugned order being legally wrong.
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. Parties to appear before the Ld. District Forum on 30-10-2018. [HON'BLE MR. SHYAMAL GUPTA] PRESIDING MEMBER [HON'BLE MR. UTPAL KUMAR BHATTACHARYA] MEMBER