CAPT LAVJI J MISTRY Vs. MAZDA PROPERTIES LIMITED

JUDGEMENT

(1.) THE brief facts of the complaint are that the complainant booked Bunglow No. 10 to be constructed by the O. Ps. 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 5-6-89. The complainant has contended that although the full amount has been paid by the complainant, the O. Ps. have neglected and failed to construct the bunglow and hand over the possession nor they have refunded the amount paid by the complainant. It is alleged that the O. Ps. 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 O. Ps. and, therefore, the Bunglow has not been constructed. Therefore, the complainant has approached this Commission for the refund of Rs. 4,50,000/- jointly and severally by the O. Ps. 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 Ltd. , have confirmed that the total cost of the above Bunglow No. 10 at the Companys 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 Ltd. are enclosed along with the complaint. A copy of the notice issued by the complainants representative to the O. Ps. is placed on record.

(2.) THE O. Ps. 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 They have submitted that some of the persons like the complainant had already withdrawn their amount from the company and after the death of the original Managing Director, Mr.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 O. Ps. 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 O. P. No. 5 Mr. Todywala in his separate statement, has repudiated most of the submissions made by the O. P. No. 1 - 4 and has stated that he is not the Director nor he is a part of the O. P. 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 can not 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 14-8-90. The complainant has not produced any evidence against F. S. Todywalla and his capacity in the O. P. No. 1 company.

(3.) WE have heard both the parties. During the course of arguments, the following picture has emerged before us :