Case Law Details
COMPETITION APPELLATE TRIBUNAL, NEW DELHI
Ms. Sudha Gupta
versus
DLF Ltd.
UNFAIR TRADE PRACTICES ENQUIRY NO. 117 OF 1996
MARCH 8, 2013
ORDER
Justice V.S. Sirpurkar, Chairman
Complainant herein came up before the Monopolies & Restrictive Trade Practices Commission (‘Commission’ for short) by way of a complaint under Section 36A of the Monopolies & Restrictive Trade Practices Act, 1969 (‘Act’ in short) alleging the unfair trade practice against the respondent – DLF Universal Limited. This complaint was filed on 27.7.1994 wherein the complainant has also prayed for an injunction, that is ‘cease and desist’ order.
2. The complainant’s case, inter-alia, is that she had booked a plot of land in a scheme launched by the respondent namely ‘DLF Qutab Enclave, Phase-IV’. According to her, she had booked that plot through an agent of the respondent. According to her, the plot was agreed to be purchased at Rs. 1750/- per sq. mtr. She claims to have deposited the basic sale price of Rs.1,00,800/- through a demand draft and thereafter paid Rs.3,89,000/- between 3.12.1991 and 4.9.1992 and thus had made total payment of Rs.4,89,800/-.
3. In her complaint, she inter-alia, pointed out that the she inquired vide her letter dated 14.1.1993 about the demarcation of the plot No. 1225 and had also complained about the non-receipt of any allotment letter and also protested about dishonouring of the terms and conditions of the brochure, which was allegedly the basis of the purchase of the said plot. It is her case in the complaint that this letter was replied to by the respondent by the letter dated 18.1.1993 and it was pointed therein that she is liable to pay the interest @20% per annum for belated payment and the calculations were to be mailed to the complainant subsequently. According to her, this commitment was never honoured. According to her, she sought further clarification as she was dissatisfied with the aforementioned reply and for which she wrote a letter on 8.2.1993. According to her, though nothing was furnished to the complainant by the opposite party, but after having made some enquiries from the competent authorities including Haryana Urban Development Authority. Thereafter the complainant duly tendered two cheques for Rs.54,636/- and Rs.62,887/- drawn on Corporation Bank. However, these cheques were returned to the complainant and it was informed by the letter dated 5.1.1994 that her booking was cancelled and there was forfeiture of a sum of Rs.1,55,105/-. On this, the complainant filed her protest vide letter dated 7.2.1994 and complained that the action on the part of the respondent constituted deficiency in service and was also unfair trade practice. She also requested for withdrawal of letter dated 5.1.1994 and sought the detailed calculations to enable her to make further payments and get possession of aforementioned plot No. 1225. She sent two reminders, after which the opposite party reiterated the position vide letter dated 2.4.1994 and pointed out that the notice of cancellation of her allotment were returned by the postal authorities with the remarks “undelivered”. In this communication dated 2.4.1994 the respondent emphasized that no further correspondence would be entertained by them in this behalf. She, therefore, sent a legal Notice dated 12.4.1994 and repudiated the stand of the respondent and pointed out that the letter dated 2.4.1994 was completely uncalled for and was an attempt to illegally deny the complainant’s right as a bona fide purchaser of the plot. She also demanded the possession of the plot within 15 days of the receipt of the notice. However, she received no response and made futile attempts to meet the senior officers of the respondent. The officers also expressed their inability to hand over the possession of the plot to the complainant. It was, however, suggested to the complainant that she could be paid the entire money back with interest if she desired and invited the complainant to send a written communication to this effect. Accordingly, she wrote a letter dated 27.6.1994 without prejudice to her legal rights requesting therein that in case the opposite party decided to refund the whole amount with interest and profits and the same should be sent to the complainant at her residential address by cross-cheque and by registered post. It is her case that this letter met with no response. The complainant further alleged that she had proceeded on the basis of the brochure (annexure C-1) which is silent about any earnest money or forfeiture clause. According to her, the cancellation could not have been made as it was totally an unfair exercise on the part of the respondent. She pointed out that in fact she has paid more than 50% of the total purchase consideration of the plot and she was never served any legal notice for cancellation of the plot No. 1225. According to her, the respondent had engaged in profiteering exercise by selling the same to someone else and that also amounts to an unfair trade practice. Under the circumstances, she prayed for the following reliefs :-
(a) The possession of Plot No. 1225 in the DLF Qutab Enclave Phase IV and for registration thereof in the name of the complainant on the payment of the balance sale price as per the brochure originally issued by the respondent; and
(b) Compensation for Rs.1,00,000 for pecuniary loss and immense mental agony.
The complaint was supported with an affidavit. She also filed an application under Section 12A of the Act for injunction, more or less on the similar lines.
4. The Commission issued a Notice returnable on 22.9.1994 vide its order dated 18.8.1994 and also passed an ex parte order that “DLF shall not transfer or allot plot No. 1225 DLF Qutub Enclave Phase-IV to any person till further orders.” Thereafter, much time was lost in exchange of the pleadings. DLF seems to have filed replies to the main complaint as well as to the application of injunction filed under Section 12A of the Act. In the meantime, the complainant also filed a contempt application. Three matters then came to be decided by this Commission. They were :-
(i) The Contempt Application filed by the complainant;
(ii) An application for vacation of the injunction, which was filed by the respondent; and
(ii) An application for revised injunction filed by the complainant.
As far as the Contempt application is concerned, the Commission held that there was no contempt committed by the respondent. In that Contempt Application, the complainant had complained that though there was an injunction order passed on 18.8.1994, yet the plot itself was transferred to one Mrs. Kamlesh Bali and Mr. Manish Bali on 23.9.1993. The Commission noted that in fact the agreement was already entered into by the respondent with these two vendees on 23.9.1993 and also a sum of Rs. 2 lakhs was collected on 20.7.1993. Thus, the third party right was created on 23rd September, 1993 itself well before the order of injunction passed by the Commission. The Commission, therefore, held that there was no contempt committed by the respondent.
5. As regards the second application, which pertains to the vacation of the injunction filed by the respondent, the Commission took the view that there was no merit in the request of the respondent for vacating the injunction as third party right had already been created and as such the injunction itself had become infructuous.
6. As regards the revised injunction application filed by the complainant, the Commission came to the conclusion that balance of convenience did not lie in favour of the respondent to issue any revised injunction at that stage. By passing this order, the Commission observed that in the event, complainant succeeds in the main complaint case as well as in the compensation application, she would be entitled to a reasonable and just compensation including the compensation for the loss and mental agony, if any, suffered by her. Thereby all the three applications were disposed of. This was on 7.12.1995. As against this order, the complainant seems to have filed a review application. In the review application, the complainant had sought a Full Bench hearing. However, that application was not pressed. However, another application came to be moved seeking clarification on the injunction passed on 18.8.1994 read with the subsequent order 7.12.1995. After referring to the pleadings on the review application etc. this Commission passed a detailed order on 6.6.1996 in which it was observed that the earlier agreement dated 23.9.1993 with Smt. Kamlesh Bali and Shri Manish Bali was merely an agreement for sale and did not amount to transfer. The Commission took a view that no transfer could be affected till the injunction order dated 18.8.1994 was vacated or modified. The Commission thus declared that order dated 18.8.1994 was still operational and to that extent subsequent order dated 7.12.1995 should stand amended. The Commission also observed that the respondent should not make any further construction on the plot till further orders. Very interestingly, the Commission directed that Smt. Kamlesh Bali and Shri Manish Bali the persons who were the earlier agreement holders and were the third parties should also be joined as the parties. The Commission also directed to issue a Notice of Enquiry. This order was passed on 6.6.1996. Accordingly, R-2 and R-3 also appeared and filed their Vakalatnama in addition to R-1. The issues came to be framed. They were :-
1. Whether the complaint is maintainable in view of the preliminary objection taken by the respondents?
2. Whether the respondents have been indulging in unfair trade practices as alleged in the Notice of Enquiry?
3. Whether the alleged unfair trade practices are prejudicial to the interest of the consumer/consumers generally?
7. In the meantime, R-2 and R-3 also filed an application for vacating the injunction. That application was disposed of vide an order dated 7.5.1999. In the order dated 7.5.1999 all the earlier orders were taken note of which were dated 18.8.1994, 7.12.1995 and 6.6.1996 and the Commission holds that there were no grounds for vacating or modifying the injunction order/orders which were already passed. The case thereafter dragged on as the complainant thereafter filed an application under Section 13(2) read with Section 151 CPC seeking review/modification of the order dated 25.9.1998. That application was disposed of by an order dated 23.11.2000 and the application filed under Section 13(2) by the complainant for reviewing the earlier orders was dismissed. The parties were directed to proceed with the evidence. It seems that thereafter the matter was put up for admission/denial of the documents. Ultimately, after few adjournments complainant filed her affidavit of evidence on 23.7.2002. In the meantime, R-2 and R-3, who were joined later, again filed an application for recalling the Commission’s order dated 28.11.2002. These applications were ordered on 1.2.2006 wherein it was mentioned that after arguments it was offered by R-2 and R-3 that they did not want to cross-examine the complainant’s witness which was in progress and they would join at the time of final arguments. The Commission gave permission to R-2 and R-3 to join at the time of the final arguments and thus that application was disposed of. After the complainant’s evidence as well as the respondent’s evidence was over, the complainant has filed an application for cross-examination of the witnesses of R-2 and R-3. That application was registered as Miscellaneous Application No. 6/08. That application was rejected on the ground that R-2 and R-3 had themselves not offered any affidavit of evidence and therefore there was no question of cross-examination.
8. Thereafter, the complainant came out with an application under Section 340 Criminal Procedure Code in view of which she was not pressing M.A. No. 15/08. It was ordered by our predecessor that it would be better that UTPE would be decided first and only during its adjudication if it was necessary to consider the application under Section 340 Cr. P.C. that would be simultaneously dealt with.
9. On 15.7.2011 the complainant made a statement in the open Court that she was only interested in getting a plot and not in any monetary refund. On that day she did not continue with the hearing of the petition and stated that her application under Section 340 Cr. P.C. should be decided first. The Bench on that date passed the following order:-
“The complainant, appears in person, stated that she is only interested in getting a plot and not in any monetary refund. When it was pointed out to her that in view of the Order of Hon’ble Supreme Court in the matter of Ghaziabad Development Authority v. Ved Prakash Aggarwal , [2008] 7 SCC 686, para 130 that such a direction cannot be given by the court, she did not continue with the hearing of the petition and stated that she feels that the application in terms of Section 340 Cr. P.C. which are pending is to be decided first. We have also dealt with UTPE 117/1996. She does not want to argue until any change is made in the aforesaid order. Order is reserved.”
10. Thereafter the matter came to be posted from day to day and was adjourned on some or the other ground. The matter then finally came before the Tribunal on 11.9.2012 when the complainant sought time to file the written arguments. It is on the basis of the written arguments the matter is now being decided.
11. As has been stated earlier in this judgment, there was an application made under Section 340 of the Cr. P.C. This application seems to have been filed on 19.01.2009 and 01.04.2010, at least that is the claim of the applicant. The prayer is in the following terms :-
“In view of the aforesaid, it is respectfully prayed that the Hon’ble Commission be pleased to reject the application filed under Section 12A-II of the MRTP Act, 1969 for vacation of interim orders passed by this Hon’ble Commission dt. 18.8.1994 on behalf of Resp. 2+3 by the Advocate Sh. Ajay Goel against the law, without Power of Attorney and Vakalatnama with heavy cost on Resp.2+3, also Respondent No.1 M/s. DLF Universal Ltd. who too is a party to this malpractice and the direction for cancellation of enrollment may also be issued to Delhi Bar Association such forgery behavior before the Hon’ble Commission.
Any such other or further orders as this Hon’ble Commission may deem fit and proper, may also be passed in the facts and circumstances of the case in the larger interest of justice for the poor complainant.”
12. In this application, the caption is “reply in compliance of the order dated 11th November, 2008“. The said order dated 11th November, 2008 is as under :-
“There is no appearance on behalf of respondent Nos.2 and 3. Complainant has filed an application giving particulars of the FIR. She undertakes to serve copy thereof to the respondents within a week.
List on 22.01.2009 for further directions as well as for disposal of pending applications. In the meantime, the respondents will file reply to the application”
13. It seems that on that date the complainant had filed an application by which she gave particulars of a First Information Report (FIR) which seems to have been registered as FIR No.205 dated 04.02.1997. In the aforesaid application dated 19.01.2009 a reference is made to that FIR and the fact that no action was taken over that FIR and the complainant had to move an application under RTI Act. Then there is in paragraph 2, there is a reference to the application filed by respondent Nos.2 and 3 for vacating the interim orders passed by the Commission on 18.08.1994. An allegation is made that the application bears a forged signature of Mrs. Kamlesh Bali and the said forgery has been done by the advocate Mr. Ajay Goel. Further allegation is made that there was an intention of cheating by respondent Nos.2 and 3 on the part of advocate Mr. Ajay Goel and that there was no Vakalatnama or Power of Attorney on the record. A contention is raised that for these reasons, the Commission should refuse the permission granted to respondent Nos.2 and 3 to join at final arguments stage. All this is followed by a prayer clause which we have quoted earlier. Thereafter, there appears to be another application filed on 01.04.2010. This appears to be under the caption “complaint under Section 340 Cr.P.C. for initiating action against Ajay Goel advocate for pertaining forgery, cheating and misappropriation etc. on behalf of respondent No.2 and 3 including respondent No.1 with poor complainant”. The whole application then speaks about advocate Ajay Goel and the accused Nos.11 and 12. It is not known as to who these accused are, probably they are named as accused in the aforementioned FIR 205/97. The contention appears to be that the said advocate Ajay Goel by filing an application under Section12A-II of the MRTP Act for vacating the interim orders with forged signatures of only one accused No.11 namely Mrs. Kamlesh Bali, that too when he was not having any Vakalatnama, suggests the element of forgery, cheating and misappropriation of property and deep rooted conspiracy against the complainant. There it is pointed out that this application was filed by Shri V.K. Aggarwal, advocate and is also without Vakalatnama or Power of Attorney on behalf of Mrs. Kamlesh Bali and Mahesh Bali. Then there is a reference to the rejection of that application. We have also referred to those facts in the earlier part of the judgment. In paragraph-2, a reference is made to another application on behalf of the accused Nos.11 and 12. It was an application for recalling ex-parte order. Then there is reference made to the order of the Commission dated 05.09.2004 and it is stated that this application is not on record. From this, a contention is raised that the accused are guilty of offences of forgery, cheating and misappropriating the complainant and that the Police have also not taken any action in the FIR 205 of 1997. Ultimately, the prayer clause is as under:-
“Therefore it is prayed that this Hon’ble Court take appropriate and necessary action against Advocate Ajay Goel, office at 181, Manu Apartments, Mayur Vihar, Phase-I, Delhi-110091, who appeared as Counsel of accused No.11 and 12, who too is a party of malpractice and also liable for necessary action to cancel the enrolment number from the rolls of the Bar Council of Delhi for doing such kind of forgery, cheating, misappropriation intentionally before the Hon’ble MRTP Commission.
Thus, both the applications filed by accused Advocate Ajay Goel under the conspiracy of respondent/ accused no.1 to 12, are first required to be disposed of with heavy cost i.e. Rs.1 lacs and may be pleased to impose fine of Rs.2 lacs on each accused respondent/ accused no.1 to 3 and Advocate Ajay Goel for doing such kind of criminal offence cheating forgery and misappropriation of facts before the Hon’ble Commission with the poor complainant who has been aggrieved for more than 16 years. The above facts and circumstances of the matter are required to be considered in the interest of justice.”
14. We have intentionally referred to the above application dated 01.04.2010 which is in continuation of earlier application dated 19.01.2009. Inspite of our efforts at least to understand the nature of the application we have not been able to decide as to what is the real objective and content of this application purportedly under Section 340 Cr.P.C. Section 340 Cr.P.C. very specifically says that in order that an action under Section 340 is taken, the Court should be of the opinion that an inquiry should be made into the offence referred to in Clause (b) of sub-Section (1) of Section 195, which appears to have been committed in or in relation to a proceeding in the Court, or as the case may be in respect of a document produced or given in evidence in a proceeding in that court. Court then is supposed to hold the inquiry on the basis of its opinion. In our opinion, there is no scope for holding such inquiry as Section 340 is wholly inapplicable to the facts in these particular cases. Both the applications hopelessly fall short of spelling out any offence which is purported to have committed in relation to the proceeding in the Court. It is also not that any offence has been committed much less under Section 195 to 196, 199 to 200, 205 to 211 and 228 of the Indian Penal Code (IPC). Similarly, there is absolutely no allegation regarding any offence under Section 463, 471, 475 or 476 of the Indian Penal Code. There is also no basis to hold that there was any criminal conspiracy to commit or attempt to commit, or the abetment of any offence in sub-clause (i) or sub-clause (ii) of Section 195 of (1) (b). Under the circumstances, we hold that the application under Section 340 Cr.P.C. was wholly irrelevant and we proceed to dismiss the application.
15. This takes us to the main issue regarding the UTPE or as the case may be RTPE enquiry. Before we advance to that issue, we must refer to the decision of Hon’ble Supreme Court in Ghaziabad Development Authority v. Ved Prakash Aggarwal [2009] 91 SCL 281 (SC). We need to refer only to paragraph-7 of this judgment, which reads as under:-
“7. Having decided issue No. 1 in the manner indicated above, the other question that we need to decide is whether the MRTP Commission had the jurisdiction to direct the GDA to hand over possession of a vacant plot of 90 sq. mtrs. to the respondent in the Govindpuram scheme or if not available, an alternative plot in some other scheme. So far as this question is concerned, we hold that the MRTP Commission was clearly in error in directing the GDA to handover possession to the respondent. Under the Act, there are provisions for inquiries that can be instituted by the MRTP Commission while Section 36D read with Section 12A and 12B lay down the powers of the MRTP Commission in dealing with instances of Unfair trade practices. None of the provisions seem to indicate that the MRTP Commission has the authority to do what it did in this case. The MRTP Commission has the power to impose damages or give compensation to the respondent as a mode of redressal for harm caused by the unfair trade practices, but it certainly cannot assume the powers of the civil court because the action of the MRTP commission in this case virtually amounts to grant of specific performance.”
16. From this it is clear that this Commission has no jurisdiction to hand over the possession of plot in question to the complainant; that is the task of the Civil Court. The Hon’ble Supreme Court in the closest term has restrained to this Commission from assuming the power of the Civil Court. It is also clarified in the paragraph that this Court cannot grant any specific performance.
17. The Commission has already recorded a specific statement made before the Court by the complainant, and quoted herein above, that she was not interested in any compensation, but was insisting upon the possession of the plot. This statement was made before the open Court on 15th July, 2011 before Hon’ble Dr. Justice Arijit Pasayat who was the Chairman of this Commission.
18. Therefore, in reality nothing would survive in this complaint, at least in so far as the possession is concerned. The Hon’ble Supreme Court is more than clear on this issue. If this is not sufficient, in a reported judgment in Saurabh Prakash v. DLF Universal Ltd. [2006] 72 SCL 443 (SC) Hon’ble Supreme Court after taking stock of the provisions of this Act and after considering the definition of ‘trade practice’ in Section 2(u) and ‘restrictive trade practice’ in Section 2(o) (i) and (ii) and expression ‘service’ as also the definition of ‘unfair trade practice’ as defined in 36-A has quoted in paragraphs 34 and 35 as under :-
“34. The power of the Commission to award compensation, therefore, is restricted to a case where loss or damage had been caused as a result of monopolistic or restrictive or unfair trade practice. It has no jurisdiction where damage is claimed for mere breach of contract.
35. It was not a case where a notice of inquiry had been directed. If there had been no inquiry, the petitioner has to file a suit wherein the relevant particulars are required to be stated as to how loss or damage occurred owing to one or the other trade practices referred to therein. The power of the Commission is not in addition to the power of the civil court. An application under Section 12B of the Act would not lie where a complaint is confined to a breach of contract. Purchases on the part of Respondent must necessarily relate to one or the other trade practices contemplated under Sub-section (1) of Section 12B of the Act.”
19. From the bare reading of this, it is clear that the application under Section 12-B would not lie where a complaint is confined to a breach of contract. In paragraph-34 also, the Apex Court had specifically cautioned that this Commission has no jurisdiction where damage is claimed for some breach of contract. It is an admitted position that the complainant had entered into the Agreement with DLF and she was aware of all the conditions therein. If this was so, the whole complaint is about the DLF having breached the contract in firstly, cancelling the allotment and secondly, denying her the possession of the plot in question. A close scrutiny of the complaint would show that essentially the complaint is about the breach of contract by the respondent.
20. In reality, there would be no question of entertaining such matter. However, during the proceedings, the DLF had shown their readiness to refund the balance amount of Rs.3,34,695/- through their letter dated 22nd June, 1994. We would, therefore, chose to order refund of this amount which was agreed to be refunded by the DLF. The DLF shall, however pay interest @9% per annum. We have also referred in the earlier part of the judgment to a letter written by the complainant in pursuance of the oral assertion on the part of DLF for return of the amount to her. That letter is on record vide letter dated 27th June, 1994. Of course, in this letter, the complainant claimed mesne profits also along with the amounts that she claimed. We cannot persuade ourselves for grant of mesne profits particularly in view of the clear law laid down in the case of Saurabh Prakash (supra). It was argued before us that the case of Saurabh Prakash (supra) will not be applicable, but a reported judgment DLF Universal Ltd. v. Ekta Seth [2008] 86 SCL 28 (SC) would be applicable. This judgment was DLF Universal Ltd. (supra). We have gone through this judgment, where in paragraphs 12, 13, and 14 the Hon’ble Supreme Court has held as under :-
“12. In the present case we find that the installments were duly paid for at least five years and payment was stopped thereafter on the ground that the increase in the cost of the flat was beyond the means of the respondent and also the fact that appellant had failed to deliver the possession of the flat in time. On the other hand as submitted there were bona fide reasons on the part of the appellant for their inability to handover the said possession within the stipulated time and the increase in cost was on account of factors specifically enumerated in Clause 2 (b) and Clause 4.
13. Considering the entire facts and circumstances of the case, we are of the considered opinion that the interest of justice would be subserved if we, in exercise of our discretionary jurisdiction under Article 142 of the Constitution of India, direct that 50% of the amount which was forfeited be refunded by the appellant to the respondent within three months from the date of this Judgment and the balance 50% would be considered as forfeited in terms of the provisions of the agreement. However, if the appellant fails to pay the said amount within the stipulated period the same will carry an interest @ 8% p.a. which will be calculated from the date when the abovementioned period expires till the date of payment.
14. We also make it clear that this order is passed in the peculiar facts and circumstances of this case and would not be considered as precedence in any other matter”
21. On this basis, the complainant seems to be urging that we should follow the same suit. That is not possible for us, for the simple reason that Hon’ble Supreme Court has clarified specifically that the order for payment of 50% of the forfeited amount, which was forfeited as an earnest money, was being ordered to be paid under the powers of Article 142 of the Constitution of India, which powers are not enjoyed by this Tribunal. The Hon’ble Supreme Court has also specifically clarified that the order of the refund of 50% of the earnest amount were being passed in the peculiar facts and circumstances of that case and were not to be treated as a precedence. We, therefore, cannot persuade ourselves to do the same. Therefore, our order will be restricted only to the refund of amount, which was agreed by the DLF. However, since the matter remained pending all these years, we would order the refund @ 9% interest. It is seen that by the aforementioned letter dated 22nd July, 1994, the offer was made to the complainant to collect the cheques, which she failed. We would not take a serious view of that, and in that view would order that the interest shall be from the date of the offer i.e. 22nd June, 1994.
