2018 (11) TMI 1791 - Tri - Companies Law

Non-refund of deposit - Section 447 of Companies Act, 2013 - it is averred that the petitioner approached police authorities namely Noida Police as well as Delhi Police as also has approached the Consumer Forum namely Hon'ble National Consumer Disputes Redressal Commission (NCDRC) in the month of July, 2015 under the provisions of Consumer Protection Act for the refund of the amount and the said complaint is pending - HELD THAT - The petitioner had sought for refund of money in a sum of ₹ 48,99,223/- virtually based on the same cause of action as pleaded before this Tribunal in relation to this petition. In addition it is also seen that as between the parties there are several pending cases either slapped by the petitioner against R 1-4 or other way round against the respondents and a separate list has also been given by R 1-4 in their written submissions filed as Annexure A-3. Without going into the legal issues raised herein whether the amount advanced against the property which has already been constructed at the time of making advance payment by the petitioner and having been appropriated by R-1 against the property agreed to be sold and whether the same constitutes a deposit, we find that there are numerous proceedings pending as against the parties initiated by each other consideration by this Tribunal will result only in multiplicity of proceedings as between the parties before various forums which is required to be eschewed and in the said circumstances this petition is dismissed but without cost.

Summary

Issues Involved:
1. Non-refund of deposit under Section 74(3) read with Section 75(1) and Section 2(31) of the Companies Act, 2013.
2. Allegation of fraud under Section 447 of the Companies Act, 2013.
3. Determination of whether the amount paid for the flat constitutes a deposit.
4. Multiplicity of proceedings and forum shopping.

Issue-wise Detailed Analysis:

1. Non-refund of Deposit:
The petitioner filed the petition against the first respondent company and its directors under Section 74(3) read with Section 75(1) and Section 2(31) of the Companies Act, 2013, alleging non-refund of the deposit made for purchasing a property. The petitioner claimed that he was induced to pay an advance deposit based on false representations that the project would be completed by March 2013. Despite paying 95% of the property cost by July 2012, the petitioner did not receive possession of the property, leading him to seek redressal.

2. Allegation of Fraud:
The petitioner also invoked Section 447 of the Companies Act, 2013, alleging that the respondents committed fraud by making false promises about the project's completion and approvals. The petitioner argued that the respondents' actions amounted to fraudulent inducement to part with a substantial amount of money.

3. Determination of Deposit:
The respondents contended that the amount paid by the petitioner for the flat cannot be considered a deposit under Section 2(31) of the Companies Act, 2013, and the Companies Act Acceptance of Deposit (Rules), 2014. They argued that the payments were made towards the purchase of immovable property and were appropriated against the price of the flat. The respondents further stated that the petitioner opted for a 'CLP Flexiplan,' making payments in installments based on construction progress, and that the payments were not deposits but part of the purchase price.

4. Multiplicity of Proceedings:
The tribunal noted that multiple proceedings were pending between the parties, including cases before the National Consumer Disputes Redressal Commission (NCDRC) and criminal complaints. The petitioner had sought similar reliefs in the NCDRC, including a refund of the amount paid with interest and compensation for rental expenses, mental agony, and litigation costs. The tribunal observed that considering the petition would lead to multiplicity of proceedings and forum shopping, which should be avoided.

Conclusion:
The tribunal dismissed the petition without going into the legal issues of whether the amount paid constituted a deposit. It emphasized the need to avoid multiplicity of proceedings and noted that the petitioner had sought similar reliefs in other forums. The petition was dismissed without cost.