National Company Law Appellate Tribunal
Bansi Lal Arora Trust & Ors vs Skipper Towers Pvt. Ltd. & Anr on 18 April, 2022
Author: Ashok Bhushan
Bench: Ashok Bhushan
NATIONAL COMPANY LAW APPELLATE TRIBUNAL,
PRINCIPAL BENCH, NEW DELHI
Transfer Original Petition (AT) (MRTP) No.04 of 2017
(Old RTPE No. 176/1999)
IN THE MATTER OF:
Bansi Lal Arora Trust & Ors. .... Complainants
Vs
Skipper Towers Pvt. Ltd. & Anr. ... Respondents
With
Contempt Case (AT) (MRTP) No. 05/2017
In Transfer Original Petition (AT) (MRTP) No. 04/2017
(Old Contempt Application No. 02 /2016
in Old RTPE No. 176/1999)
IN THE MATTER OF:
Bansi Lal Arora Trust & Ors. .... Complainants
Vs
Skipper Towers Pvt. Ltd. & Ors. ... Respondents
Present:
For Complainants: Ms. Prema Priyadarshini, Advocate.
For Respondents: Mr. Ashish Makhija and Mr. Deep
Bisht, Arya, Advocates.
JUDGMENT
ASHOK BHUSHAN, J.
The Transfer Original Petition and Contempt Case have been heard together and are being decided by this common judgment. 1
2. We may first notice the facts and sequence of events of the Transfer Original Petition.
(i) Transfer Original Petition arises out of a complaint filed by the Complainant under the Monopolies and Restrictive Trade Practices Act, 1969 (hereinafter referred to as the 'MRTP Act, 1969') arraying M/s Skipper Towers Pvt. Ltd. as Respondent No.1 and Shri Tejwant Singh as Respondent No.2. The complaint was registered as RTPE No. 176 of 1999. The Complainant No.1 is a Trust, which has been set up by the father of Complainant Nos.2 to 5 for their benefit. The Respondents are builders engaged in business of real estate construction.
(ii) In the year 1982, the Respondent issued various advertisements inviting for purchase of office space in a multi-
storied commercial building intended to be commenced shortly and was located at 12, Community Centre Complex, Yusuf Sarai, New Delhi. It was promised that construction of the Complex would be completed in a time bound manner and possession will be given within a period of one year. The Complainant applied for flats which were located in basement as well as on the ground floor. The rates and area of the shops in question were informed by the Respondent to the Complainants and part payments were made by the Complainants towards the aforesaid four shops between the period 1982 to 1985.
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(iii) The Delhi Development Authority ("DDA") had cancelled the Plot, which was allotted to Respondent No.1 due to non- payment, which was restored by the DDA in the year 1998. The Respondent wrote certain letters to the Complainants for depositing ground rent and stamp duty etc., which was replied by the Complainants on 19.02.1999. The Respondent vide letter dated 08.04.1999 cancelled the allotment of four premises bearing No. B-1, B-2, G-9 and G-10 situated at Community Centre and sent cheques after forfeiting 35% of the total price of the property to Complainants. The cheques were not encashed by the Complainants.
(iv) The Complainants filed complaint under Section 10(a) (i), (iv), 2(o) (ii), 36B (a)/(d) read with section 36A (i), (ii), (iv), (vi) and
(ix) of the MRTP Act, 1969. The Complainants alleged that acts of Respondent amount to restrictive and unfair trade practice. In the complaint, following prayers were made by the Complainants:
"(a) An immediate notice of inquiry enquiring into the unfair and restrictive trade practices being indulged in by the respondent;
(b) Pass immediate cease and desist orders
restraining the respondent from doing so;
(c) The respondent be restrained from cancelling the
allotments of the complainant and/ or no third party interest be created in the same;
(d) Further direct the respondent to hand over vacant possession of flats bearing no.B1 measuring 350 3 Sq. fts., B2 measuring 332 Sq. fts., G9 measuring 92 Sq. fts. & G10 measuring 138 Sq. fts. as required by the complainants in serviceable conditions;
(e) To grant an ad-interim exparte injunction as prayed for in the application under Section 12A MRTP Act
(f) Any other or further orders as may be necessary.
(f) Relief.
(g) Costs."
3. The Monopolies and Restrictive Trade Practices Commission (hereinafter referred to as the "Commission") passed an interim order on 23.09.1999 on the complaint observing that forfeiture of such big amount would amount to unfair trade practice on the part of the Respondents. The Respondent by the ex-parte ad interim injunction granted by the Commission were restrained from creating any interest of any third party in the subject matter of the proceeding till further order. The interim notices issued to the Respondent though were served, but Respondents did not appear. The ex-parte interim injunction granted by the Commission was affirmed by order dated 01.12.1999. The Respondent appeared thereafter and filed reply on 16.04.2001. In the reply one of the pleas of the Respondent was that Respondents are ready and willing to give possession of the alternative flats on payment of Rs.15,51,413.78. The Commission noticed that Respondents are not appearing in the complaint after 04.07.2002. The Complainants were directed to file affidavit of evidence and further direction was to fix the case for ex-parte final arguments on 10.09.2003. Thereafter, in the year 2004, Respondents 4 appeared and sought adjournment on the ground that there is possibility of out of Court settlement. However, no offer of settlement was made by Respondent. Contempt Application under Section 12A(2) of the 1969 Act was filed by the Complainants alleging violation of the Commission's order dated 23.09.1999.
4. After the enforcement of Competition Act, 2002 under Section 53A, Central Government has established the Competition Appellate Tribunal ("COMPAT"). The COMPAT had considered the Contempt Application filed for violation of order dated 23.09.1999 and 01.12.1999 and by an order dated 20.05.2011 rejected the Contempt Application. Proceedings in RTPE 176 of 1999 continued before the COMPAT, which on 23.07.2012 directed for recording of the evidence before the Registrar. In the year 2014 on the request of the parties matter was also referred to Delhi High Court Mediation and Conciliation Centre, which also failed. On 07.07.2014, the Complainants came to know that Respondent is in liquidation and matter is pending before Hon'ble Supreme Court. By an order dated 19.12.2014, the Complainants were directed to withdraw the RTPE No.176 of 1999 so as to enable them to file appropriate application before the Hon'ble Supreme Court. The Complainants were given liberty to revive the RTPE in case they fail to get relief from the Hon'ble Supreme Court.
5. In Company Petition No.96 of 1997 filed against Respondent No.1 before the Delhi High Court, on 16.09.2002, the Company Judge admitted the Application and appointed Official Liquidator. By order dated 02.09.2004, the Company Petition was finally allowed by the High Court. The High Court vide order dated 02.09.2004 directed the Provisional 5 Liquidator to act as the Liquidator. By order dated 17.08.2006 passed by Hon'ble Supreme Court in T.P. (C) No.113 of 2006, Company Petition No.96 of 1997 along with all other Company Applications pending before the High Court were transferred to Supreme Court. The Hon'ble Supreme Court vide order dated 03.09.2014 passed in Transferred Case No.113 of 2006 directed the Ex-Director Tejwant Singh to pay a sum of Rs.4,00,000/- only to the Petitioner in full and final settlement of all the claims, consequently the Transfer Case No.113 of 2006 was disposed of as infructuous. The Complainant has filed a Transfer Petition No.1862 of 2014 before the Hon'ble Supreme Court to transfer the RTPE No.176 of 1999 to Supreme Court. The Transfer Petition(s) Civil No.1862 of 2014 was dismissed by the Hon'ble Supreme Court on 06.01.2015. After which the Complainants filed an Application to revive the complaint before the COMPAT. The COMPAT vide its order dated 08.08.2016 revived the RTPE No.176 of 1999 and directed it to be listed for completion of recording of evidence. After revival of the case, the evidence of the parties were recorded including the cross- examination of the Complainants.
6. By virtue of Section 53A of the Competition Act, 2002 as amended by Act 7 of 2017 (The Finance Act, 2017) with effect from 26th May, 2017, the National Company Law Appellate Tribunal ("NCLAT") was constituted under Section 410 of the Companies Act, 2013 from the date of commencement of Part XIV of Chapter VI of the Finance Act, 2017 for the purposes of Competition Act, 2002 and the old complaint RTPE 176 of 1999 was transferred to the NCLAT and was registered as Transfer Original Petition (AT) (MRTP) No.04 of 2017.
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7. The Original Transfer Petition has been heard before this Appellate Tribunal. On request for the parties, Transfer Original Petition was also adjourned to enable the parties to settle the matter, unfortunately parties could not arrive at a consensus, hence, the matter was listed for hearing. Parties were heard on 22.03.2022, 25.03.2022 and finally on 29.03.2022, on which date the judgment was reserved in Transfer Original Petition as well as in Contempt Case.
8. Before the COMPAT, Contempt Application No.02 of 2016 was filed by the Complainants impleading Skipper Towers Pvt. Ltd. as Respondent No.1 and Shri Tejwant Singh, Managing Director/ Director as Respondent No.2 and Shri Prabhjeet Singh, son of Shri Tejwant Singh as Respondent No.3 for willful and deliberately flouting the order of the Tribunal. In the Contempt Application reference to order dated 19.10.2016 was made by which order the earlier Contempt Application bearing Contempt No.1 of 2016 was not entertained. It is pleaded in the Contempt Application that Respondent Nos. 2 and 3 have deliberately and willfully flouted the order of the Tribunal. In Contempt Application No.02 of 2016, COMPAT vide order dated 08.11.2016 issued notice to Respondent Nos.2 and 3. In Contempt Application No. 2 of 2016, in fact order was reserved on 18th May, 2017 by the COMPAT, which could not be pronounced due to Notification dated 26th May, 2017, by which Notification, Section 53A was substituted by Act 7 of 2017 of Finance Act and with effect from 26th May, 2017, National Company Law Appellate Tribunal to be the Appellate Tribunal for the purposes of the Competition Act, 2002. After coming into force the substituted Section 53A, the Contempt Application No.2 of 2016 was re- 7 registered before this Appellate Tribunal as Contempt Case (AT) (MRTP) No. 05/2017. The Contempt Case (AT) (MRTP) No. 05/2017 and Transfer Original Petition (AT) (MRTP) No.04 of 2017 were heard together and as noted above, judgment was reserved by this Tribunal on 29.03.2022.
9. We have heard Ms. Prema Priyadarshini, learned Counsel for the Complainant and Shri Ashish Makhija, learned Counsel appearing for Respondents.
10. The learned Counsel for the Complainant submits that the Respondents have indulged in restrictive trade practice and unfair trade practice by depriving the Complainant to get flats bearing Nos.B-1, B-2 in the basement and flats bearing Nos.G-9 and G-10 on the ground floor of Community Centre, Ajit House, 12, Yusuf Sarai, New Delhi being constructed by Respondent Nos.1 and 2. The Complainant being allured by the advertisement given by the Respondent that multi-storied commercial building will be constructed and given within a period of one year, applied for the above mentioned four premises and made payments towards all the above premises from 1982 to 1985 and also paid plot restoration charges to DDA, total payment being Rs.3,23,944.60/-. The Complainants were always ready to pay the balance amount payable by them, but the Respondent unduly delayed the construction of premises and even after lapse of 17 years, did not offer the possession to the Complainants. The Plot allotted to Respondent No.1 was cancelled by DDA twice and it was restored on account of efforts made by Flat Owners and Occupants Association. The letters issued by Respondent No.1 demanding 8 undue charges issued in the year 1990, 1992, 1998 and 1999 were duly replied objecting to un-authorised demands raised by Respondent No.1, coupled with undertaking to pay all legitimate dues, but Respondent No.1 unduly cancelled the allotment of all the four flats vide letter dated 08.04.1999 and along with cancellation of plots Respondent No.1 also deducted 35% of the total flat cost from the amount paid by the Complainants, which is clearly an unfair trade practice. The Respondent adopted various dilatory tactics to delay the decision on the complaint. The Respondent before the Commission, COMPAT and also before this Tribunal made repeated requests that they want to settle with the Complainants out of the Court, but there being no bona-fide in the requests, no settlement could be entered and by the above acts, the Respondent succeeded in delaying the decision on the complaint. The Respondents after passing of the interim injunction order in the complaint on 23.09.1999, wherein they were restrained from creating any third party right in the subject matter of the complaint, in defiance of which they created third party right by selling the shops to third party, by denying the right of the Complainants, the Respondents filed false and misleading affidavit in the proceeding. The Complainants being victim of unfair trade practice committed by Respondents are entitled for refund of the entire amount paid by the Complainant to Respondent No.1 along with compound interest as well as compensation as contemplated by Section 12-B of the MRTP Act, 1969. The Respondents are also liable to be punished under Section 52-B of the MRTP Act, 1969. The Complainants, who were languishing for more than 9 18 years and are victim of mala-fide intention and unfair trade practice adopted by Respondents, are entitled to relief in this complaint.
11. Shri Ashish Makhija, learned Counsel appearing for the Respondents refuting the submission of learned Counsel for the Complainants submits that the complaint filed by the Complainants was on behalf of Bansi Lal Arora Trust. The Trust cannot file any complaint under the MRTP Act, 1969 as Trust can never be a 'consumer', hence the complaint itself was not maintainable. Respondent No.1 Company has been struck-off from the Register of Companies by the Registrar of Companies, NCT of Delhi and Haryana under sub-section (5) of Section 248 of the Companies Act, 2013 and the Company stands dissolved with effect from 21.08.2017, hence, the complaint is liable to be dismissed. Respondent No.2 was one of the Directors of the Respondent No.1 and hence, is not personally liable to the acts of the Company as alleged by the Complainant. The Complainant failed to deposit the balance payment, hence, the Company had no option except to cancel the allotment of flat by letter dated 08.04.1999. Along with letter dated 08.04.1999 four different cheques after cancellation of the booking amount were sent, which the complainant did not encash. Out of the four flats in question, two flats which were on ground floor have already been mortgaged to Ajit Singh House Flat Buyers Association through its President Meera Prasad to M.P. Singh Meera, Treasurer on 30.08.1999 and Flat in the basement has been sold to M/s Buildmore India Ltd. through its MD on 20.05.1999. The Complainant themselves stated in the complaint that they are ready to take possession subject to payment of reasonable charges and the Respondent has shown their willingness to give 10 possession of the alternative Flats on payment of Rs.15,51,413.70. The Respondent has offered the refund amount deposited by the flat buyers vide letter dated 09.12.1988, but the Complainant after receiving the said letter did not take refund of the deposit made by them. The letter head of the Trust indicate that it is engaged in the business of financers, builders and real estate agents, hence, it is not 'consumer'. The definition of 'consumer' as contained in Consume Protection Act, 1986 is applicable, according to which 'consumer' means - a person who buys goods or hire or avails of any service for a consideration, but does not include a person who obtain such goods for resale or for any commercial purpose. The prayer made by the Complainant to handover possession of the Flats cannot be granted in view of the law laid down by the Hon'ble Supreme Court in Ghaziabad Development Authority vs. Ved Praksh Aggarwal [AIR 2008 SC 2569]. Learned Counsel for the Respondents disputed the claim of the Complainants for paying Rs.3,23,944.60/- in respect of above mentioned premises. However, it is admitted that they have received amount from the Complainant of Rs.42,280, Rs.40,105, Rs.33,120 and Rs.49,680/- totaling to Rs.1,65,185/-. With regard to payments made to Association towards restoration charges, the learned Counsel for the Respondent submits that the said amount is not paid to the Respondent.
12. The learned Counsel for the Complainants in her rejoinder to the submission of the learned Counsel for the Respondents contends that the Respondents in their reply to the complaint has never taken any plea that Complainants are not 'consumer' and the complaint is not maintainable. 11 Such submission at the time of hearing raised by the learned Counsel for the Respondents need not be entertained and be rejected at the outset. The Respondents have concealed material fact from the Commission and COMPAT that their Company is in liquidation and the said fact was concealed before this Appellate Tribunal also to delay and defeat the complaint filed by the Complainants.
13. The learned Counsel Prema Priyadarshini further submits that the contention of the Respondents that since the Company is struck-off under Section 248(5) of the Companies Act, 2013, the complaint deserves to be dismissed is wholly erroneous. It is submitted that liability consequent to unfair trade practice by Respondents accrued at the relevant time in the year 1999 itself, from which liability, the Respondents cannot escape on the ground that their Company has been struck-off. It is submitted that as per Section 248, sub-section (7), the liability of every Director, that is, Respondent No.2, the Managing Director of the Company shall continue and can be enforced as if the Company had not been dissolved.
14. Learned Counsel for the parties have also placed reliance on judgments of Delhi High Court, Hon'ble Supreme Court and judgments of this Appellate Tribunal, which shall be referred to while considering submissions in detail.
15. From the submissions of the learned Counsel for the parties and materials on record, the following are the questions, which arise for consideration in the present proceedings:
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(1) Whether the Complainants have pleaded and proved in the proceedings that the Respondent has practiced restrictive trade practice and unfair trade practice on the Complainant within the meaning of the provisions of the MRTP Act, 1969?
(2) On question No.(1) being answered in affirmative, whether Complainants are entitled for award of compensation as contemplated under Section 12-B of the MRTP Act, 1969?
(3) Whether the complaint filed by a Trust, that is, Bansi Lal Arora Trust, cannot be entertained since complaint is not maintainable on behalf of Trust being not a 'consumer' within the meaning of Consumer Protection Act, 1986?
(4) Whether the complaint is liable to be dismissed on the ground that Respondent No.1 Company has been struck-off under sub-section (5) of Section 248 of the Companies Act, 2013 with effect from 21.08.2017?
(5) What is the relief, which can be granted to the Complainants in the facts of the present case?
Question No.(1)
16. We have considered the submissions of learned Counsel of the parties and perused the record including the documentary and oral evidence, which was led before the Commission and the COMPAT. The "restrictive trade practice" and "service" has been defined in Section 2(o) and 2(r) of the MRTP Act, 1969, which reads as under: 13
"2(o) "restrictive trade practice" means a trade practice which has, or may have, the effect of preventing, distorting or restricting competition in any manner and in particular,--
(i) which tends to obstruct the flow of capital or resources into the stream of production, or
(ii) which tends to bring about manipulation of prices, or conditions of delivery or to affect the flow of supplies in the market relating to goods or services in such manner as to impose on the consumers unjustified costs or restrictions.
2(r) "service" means service which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, chit fund, real estate, transport, processing, supply of electrical or other energy, board or lodging or both, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.
Explanation.--For the removal of doubts, it is hereby declared that any dealing in real estate shall be included and shall be deemed always to have been included within the definition of "service".
17. The Respondent being in 'real estate' service, it is covered by the definition of "service" under Section 2(r). The Complainants have every right to complaint under MRTP Act, 1969. The complaint was filed under Section 10(a) (i), (iv), 2(o) (ii), 36B (a)/(d) read with section 36A (i), (ii), (iv),
(vi) and (ix) of the MRTP Act, 1969. After having gone through the complaint and evidence on record, we proceed to examine the complaint with respect 14 to unfair trade practice under Section 36-A and 36-B of the MRTP Act, 1969.
18. By Act 30 of 1984, 'PART B' was inserted in the MRTP Act, 1969 with effect from 01.08.1984 with the heading "Unfair trade practice". Section 36- A (1) (i), (ii), (iv), (vi) and (ix), which are relevant in the present case are as follows:
"36-A. Definition of unfair trade practice--In this Part, unless the context otherwise requires, ''unfair trade practice" means a trade practice which, for the purpose of promoting the sale, use or supply of any good or for the provision of any services, 1 [adopts any unfair method or unfair or deceptive practice including any of the following practices], namely:-
(1) the practice of making any statement, whether orally or in writing or by visible representation which,-
(i) falsely represents that the goods are of a particular standard, quality, 2 [quantity,] grade, composition, style or mode;
(ii) falsely represents that the services are of a particular standard, quality or grade;
(iv) represents that the goods or services have sponsorship, approval, performance, characteristics, accessories, uses or benefits which such goods or services do not have;
(vi) makes a false or misleading representation concerning the need for, or the usefulness of, any goods or services;
(ix) materially misleads the public concerning the price at which a product or like products or goods or services, have been, or are, ordinarily sold or provided, and, for this purpose, a representation as to price shall 15 be deemed to refer to the price at which the product or goods or services has or have been sold by sellers or provided by suppliers generally in the relevant market unless it is clearly specified to be the price at which the product has been sold or services have been provided by the person by whom or on whose behalf the representation is made;"
19. Section 36-B, empowers the MRTP Commission to inquire into any unfair trade practice. Section 36-B of the MRTP Act, 1969 is as follows:
"36-B. Inquiry into unfair trade practice by Commission.--The Commission may inquire into any unfair trade practice,-
(a) upon receiving a complaint of facts which constitutes such practice from any trade association or from any consumer or a registered consumers' association, whether such consumer is a member of that consumers' association or not; or
(b) upon a reference made to it by the Central Government or a State Government;
(c) upon an application to it by the Director General; or
(d) upon its own knowledge or information."
20. We need to look into the complaint and evidence brought on record to come to the conclusion as to whether allegations of 'unfair trade practice' as defined in Section 36-A is made out in the facts of the present case or not. We need to recapitulate the facts and sequence of the events and materials on record in this regard.
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21. Respondent No.1 is engaged in the business of real estate, constructing and selling flats and building for inter-alia office/ commercial use. One of such building for commercial use offered to be used and constructed was for 12, Community Centre Complex, Yusuf Sarai, New Delhi. The Complainant No.1, which is Bansi Lal Arora Trust entered into an agreement with Respondent No.1 for certain flats to be built on the premises No. 12, Community Centre Complex, Yusuf Sarai, New Delhi for the benefit of Complainant Nos.2 to 5. The Complainant made an application for allotment of premises in the building on the rates as advertised by the Respondent. The Complainant made payments in the year 1982 to 1985 against the two premises in basement, that is, B-1, 350 sq. ft. at the cost of Rs.1,05,700; B-2, 332 sq. ft. at the cost of Rs.1,00,264/- and the two premises at ground floor, that is, G-9, 92 sq. ft at the cost of Rs.82,800 and G-10, 138 sq. ft at the cost of Rs.1,24,200/-. The Complainants were informed that layout plan for the building has been approved by the competent Authority and possession will be made in time bound manner. The Complainant made payments of Rs.42,280 for B-1; Rs.40,105/- for B-2; Rs.33,120 for G-9and Rs.49,680 for G-10. The construction of the building did not begin and Respondent started issuing notice to the Complainant to make payments. The plot which was allotted by DDA got cancelled due to non-payment of lease and ground rent charges by Respondent No.1, which could be restored only on 02.05.1992. The plot allotted by DDA to Respondent was again cancelled due to non-payment of charges by Respondent, which was restored again by letter dated 07.05.1998. The claim of the Complainants for allotment of the aforesaid 17 four premises for the amount as claimed by Complainants has not been disputed by the Respondent in their reply filed before the Commission. In this regard, we need to notice paragraph 14 and 15 of the complaint, which are to the following effect:
"14. The complainant accordingly relying on the representations of the respondent applied for and was made allotment of the flats as under. Copies of the Application forms are annexed herein as Annexure-B Colly. The rates were as under according to each flat:
i) Basement - 350 sq. ft (B1)
Rate offered Rs.302/-
Total cost of flat Rs.105700/-
ii) Basement - 332 sq. ft (B2)
Rate offered - Rs.302/-
Total Cost of flat Rs.100264/-
iii) Ground floor - 92 sq. ft.
Rate offered Rs.900/- (G9)
Total cost of flat Rs.82800/-
iv) Ground Floor - 138 sq. ft. (G1)
Rate offered - 900 sq. ft.
Total cost of flat Rs.124200/-
v) The respondent informed the complainant that that
the lay plans of the building have been approved by the competent authority. Copy of the site plans are annexed C Colly.
vi) The building would be fully developed.
vii) All the facilities which a fully developed building
required would be made available to the plot holders.
viii) Delivery of the possession would be time bound.
15. The complainant accordingly paid a sum of Rs.42280/- for flat B1, Rs.40105.60 for B2, Rs.33120/-
for G9 + for G1, Rs.49680/- against the above mentioned allotments."
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22. A reply was filed to the complaint by Respondent. Paragraph 14 and 15 was replied in paragraph 14 and 15 of the reply, which are to the following effect.
"14. In reply to paragraph no. 14, it is matter of record that the complainant applied to the respondent no.1 for allotment of the flat and was also allotted the flat as detailed in paragraph 14. That flat no., rates of offer and the and the floor of which such flats were allotted as detailed in 14 (i), 14(ii), 15(iii), 14(iv) or matter or record. It is further submitted that the layout plan of the building were approved by the competent authority only on 21st April 1999 and therefore, the delay if any is not attributable to the respondent no.1. All the flats buyers have already been handed over the possession except those flat buyers who have not made timely payment of their installments and have been chronic default the respondent no.1 concealed there allotment in accordance with the terms and conditions of the allotment which were mutually agreed into between the every buyer and the respondent no.1.
15. That the contents of para 15 are a matter of record and need no reply."
23. The pleadings made in the complaint were duly supported by the evidence by the affidavit of evidence filed by Manish Arora, Complainant No.2. The Respondent on being communicated that there being undue delay in completion of construction, Respondent No.1 sent a letter dated 19 10.12.1988 to the Complainant to take refund of the amount deposited by them. The Complainant did not opt for receiving any refund or for taking refund since they were interested in obtaining the possession of commercial premises for which allotment was made. The Respondent vide letter dated 26.04.1989 communicated to the Complainant that Plan has been sanctioned and construction will start from 29.04.1989. On 01.02.1990, the Respondent wrote a letter to the Complainant demanding arrears upto 95% of instalments and charges towards Marble finishing etc. Separate letters were issued with regard to all the four premises, with regard to premises B-1, arrears upto 95% amount, i.e., Rs.43,790/- was demanded along with Rs.25,950/- towards charges for Marble finishing etc. Separate letters were issued with regard to all the premises demanding different amount as per the letter. The Complainant sent a separate reply dated 15.02.1990 with regard to all the four premises. It was mentioned that Complainants are ready to make balance payment of 95% cost of the flat within seven days from the receipt of your confirmation. With regard to demand of Marble finishing, it was requested that there is no condition of extra marble charges in allotment letter, so they have no responsibility for the payment. It is useful to extract the letter dated 25.02.1990, which is to the following effect:
"Ref. No................. Dated 15th Feb. 1990 To, M/s Skipper Towers Pvt. Ltd.
Skipper Bhawan, 22, Bahakhamba Road, New Delhi.20
Sub: Basement No.B-1, on Basement Floor in Plot No.12, Yusuf Sarai Community Centre, New Delhi.
Dear Sir, This is in reply to your latest letter No.ST/1720 dated 01.02.1990 in which you have demanded Rs.43,790/- (Rupees fourty three thousand seven hundred and ninety only) as arrears upto 95% payment towards the cost of the above stated flat and in addition to the settled cost you hae demanded Rs.25,950/- (Rupees twenty five thousand nine hundred fifty only) as charges towards marble finishing etc. In this connection we have to say that the undersigned have seen Dy. Sales Manager so many times and requested him to confirm in writing that the above said flat still remains in our name and it has never been allotted to third party, we are sorry to say that no action has been taken so far.
We are ready to take the balance payment of 95% cost of the flat within seven days from the date of receipt of your confirmation, as we have confirmed news that the said flat have been allotted to third party. Regarding demand of Rs.25950/- (Rupees twenty five thousand nine hundred and fifty only) towards marble finishing it is requested that there is no condition of extra marble charges in your allotment letter, so we have no responsibility of that payment, as this demand is illegal and not according to the agreement. You cannot cancel the allotment without confirming in writing that the flat remains in our name and the size of the flat is the same as allotted to us. An early action requested sir.
Thanking you, Yours faithfully, For B.L. Arora Trust, Sd/-
(Trustee)"
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24. By letter dated 09.05.1990, the Complainant was communicated the statement of account towards all the above four premises separately, where the amount deposited by Complainant and area, rate and total cost was mentioned. These factual statements regarding payment as made in above paragraph 14 of the complaint is not denied. The Complainant on 04.06.1990 wrote to the Respondent to waive the marble charges and to confirm the actual area to be given and to give them the actual date of possession. In the letter it was clearly mentioned that Complainants are ready to make payment of actual arrears due, after receiving the reply on the points indicated in the letter. There was correspondence between the parties with regard to letter dated 08.06.1990 written by Respondent to the Complainant answering the queries raised by the Complainant, which letter was however withdrawn on the next date, that is, 09.06.1990. The Complainant wrote letter dated 18.07.1990 making reference to the letter dated 08.06.1990 and 09.06.1990 and questioning about withdrawal of the letter. By a letter dated 10.04.1998, the Respondent wrote to the Complainant that they have received letter dated 02.04.1998 from the Dy.
Director (D.D.A.) by which their plots have been restored. It was further indicated that Respondent has already deposited from their own sources a sum of Rs.45,000/- before DDA towards restoration fee of the plot, hence, the payment of restoration fee and stamp duty was demanded by the said letter separately with regard to all four premises. The Complainant wrote to the Respondent that they have already made the payment of Rs.20,685.50 vide Pay Order dated 30.12.1997 to the Association Secretary on account of stamp duty. It was mentioned that the charges for stamp 22 duty have already been paid, hence, the said demand is illegal and unjustified. It is useful to extract letter dated 07.05.1998, which is to the following effect:
"M/s Skipper Towers Pvt. Ltd. Dated : 07.05.1998 Bahi Vir Singh Sadan, Bahi Vir Singh Marg, Gole Market, New Delhi-110001.
Sub: Restoration of the plot Project-12, Yusuf Sarai, New Delhi Flat No.B-1 & B-2.
Ref: Flat No.B-1 & B-2 Dear Sir, With reference to your letter No.ST/2076 Dt. 10.04.98 kindly note that we are members of the association due of whose efforts the plot has been restored and on decision of the association we have deposited a sum of Rs.98037.50 (Rupees ninty eight thousand thirty seven and paise fifty only) vide P.O. No.806011 dt. 30.12.97 in DDA on 06.02.98 on account of Ground Rent for the above mentioned flats.
Further a pay order for Rs.20685.50 (Rupees twenty thousand six hundred eighty five and paise fifty only) vide P.O. No.084067 dt. 30.12.97 has been already given to the association secretary on account of stamp duty whenever payable.
Since we have already given the charges for ground rent and stamp duty as applicable to us the dues in your letter for ground rent and stamp duty is null and void. You demand for restoration fee is also illegal and unjustified. But in preview of the developments which have taken place 23 due to the efforts association we leave the matter to the association to decide on if applicable.
Further inspite of making full payments and clearance of dues with you we have not been given the physical vacant possession of our property. Thus it is requested to you to give us the possession at the earliest and oblige. Thanking you, Yours faithfully, For B.L. Arora Trust Sd/-
(Manish Kumar Arora) Trustee.
Encl: 1. Copy of challan deposited in Central Bank of India, Vikas Sadan, New Delhi on account of Ground Rent for Rs.98037.50 c.c.
To, Ajit Singh House (12 Yusuf Sarai), Flat Owners & Occupants Association, E-140, Greater Kailash-III, New Delhi-110048."
25. Similar letters were issued with regard to letter dated 07.05.1998 for Flats G-9, G-10 giving the details of amount paid to the DDA towards the stamp duty. After the above, letter dated 12.02.1999 was issued by Respondent to the Complainant demanding amount of Rs.3,82,739/24 for B-1 and Rs.3,63,000/- for B-2. It is useful to extract letter dated 12.02.1999 for B-1, which is to the following effect:
"Ref. No./STPL/12YS/2157 Dated : 12/02/1999 M/s B.L. Arora Trust E-30, Greater Kailash-I, New Delhi.24
Sub: PROJECT 12, YUSUF SARAI, NEW DELHI.
Dear Sir/Madam, We are pleased to inform you that the Perpectual Lease Deed with DDA has been executed on 17.11.1998 and the work at the site is progressing fast, very soon we are going to complete the building and trying to handover possession of you flat as earliest as possible.
Yor are aware that money is very much required to complete the project, but we are sorry to say after many reminders you are not making payment of Rs.3,82,739/24 which is due against your flat No.B1.
This is last and final reminder if you will not clear outstanding which stands against your account within 15 days of receipt of this letter, we shall be bound to cancel your flat without any further notice and will refund the deposited amount without interest/ any claim after forefitting the earnest money. We hope that you will not give us chance to cancel your flat and will extend your full co-operation to complete the project. Early action in this regards from your end is anticipated.
Thanking you, Yours Faithfully, for & onbehalf of M/S. SKIPPER TOWERS (P) LTD.
Sd/-
(Authorised Representative)"
26. The said letter was immediately responded by the Complainant by letter dated 19.02.1999, which is to the following effect:
"19th February, 1999 M/s Skipper Towers Pvt. Ltd., Top Floor, Skipper Corner, 88, Nehru Place, New Delhi.25
Ref: Flat No.B-1, 12, Community Center, Yusaf Sarai, New Delhi.
Dear Sir, Kindly refer to your letter dated 12.02.99 received on 19.02.99. We are happy to know that work has ultimately begun at the site, as the flats were to be given possession of in 1989 itself. However, even now being in need of the same as per original agreement we are ready to make the balance payment and take the possession of the same. You have also sent the statement of account giving the details of all the amounts paid by bus in respect of the 4 flats i.e. B- 1, B-2, G-9 & G-10 allotted to us, which in respect of B-1, shows total cost of Rs.1,05,500/- out of which admittedly a sum of Rs.42,280/- has been paid by us and the balance due is only Rs.63220/-. You have claimed certain unwarranted charges such as fire fighting charges of Rs.28210/- electric connections charges of Rs.5,250/-, escalation charges of Rs.28,000/- security deposit of Rs.5250/- and interest + compound interest seems to have been levied by you for some unknown reason even though construction has not yet been completed and only the shell structure of building has now come up. Even now, there is no electricity and water in the building, the completion certificate has not yet been granted hence we cannot even take possession of the flats. You had also waived marble granite and other charges in our previous talks and it is surprising what basis you are now claiming a sum of Rs.28,000/- on account of escalation. As you are already aware, ground rent has been paid by us directly to the DDA. We are interested in taking possession. However, we are ready to make balance payment including whatever the cost actually incurred by you towards fire fighting 26 equipments installed and genset if actually installed. However, the question of fire fighting charges of Rs.28,000/- escalation charges of Rs.28,000/- and security deposit interest does not arise.
As you are well aware, work on the building has begun only recently after restoration, at which point of time no work had been done when the building was taken over. Inspite of that we had deposited money with you on the faith and trust that we shall get possession as promised. However, after a period of 15 years we have still not received possession from you and instead of you are making demands without any basis this demand is not only arbitrary it fails even to set out as to how the cost of the flat has been more than doubled when not even the basic work is complete in the building and you are in no possession to handover the building even now.
Thanking you Yours faithfully, For B.L. Arora Trust Sd/-
Trustee"
27. The letter dated 19.02.1999 written by the Complainant was not responded, nor any communication was made by Respondent and suddenly a letter dated 08.04.1999 was issued by Respondent No.1, separately for all the four premises regarding cancelling the allotment. It is useful to extract letter dated 08.04.1999 for Flat No.B-1, which is to the following effect:
"Ref.No./YUSUF/2216 8th April, 1999
M/s. B.L. Arora Trust,
27
E-30, Greater Kailash Part-I,
New Delhi.
M/s Skipper Towers Pvt. Ltd.,
Top Floor, Skipper Corner,
88, Nehru Place,
New Delhi.
Re: Cancellation of your allotment of Flat No.B-1 at
12 Yusuf Sarai.
Dear Sir/ Madam,
This has reference to your allotment of commercial space in our 12, Yusuf Sarai Project.
We are deeply constrained to note that despite our repeated requests, reminders, you have not cleared your outstanding which remained pending for a long time.
As such, in terms of the allotment letter, your allotment has been cancelled and 35% of total flat cost has been forfeited from the amount paid by you. You will kindly appreciate that your non-payment of dues has not only delayed completion of the project, but has also earned us a bad name.
Please note that w.e.f. 08.04.1999, you are left with no lien, claim or interest whatsoever in the flat which was allotted to you.
The Company is free to allot the above flat to any other person it deems fit.
Thanking you, Yours faithfully, For SKIPPER TOWERS PRIVATE LTD.
Sd/-
Director Encl: Refund Ch. No.234054 dated 8th April, 1999 for Rs.5285/- drawn on The South Indian Bank Ltd."
28
28. Along with letter dated 08.04.1999, a cheque of Rs.5285 was also enclosed. The letter dated 08.04.1999 mentions that 35% of the total flat cost has been forfeited from the amount paid by the Complainants. With regard to B-1, admittedly the payment which was received from the Complainant was Rs.42,280 and out of Rs.42,280/-, a cheque of Rs.5285/- was issued. It was after the cancellation of allotment by letter dated 08.04.1999, the Complainant chose to file complaint under the MRTP Act, 1969. It is useful to refer to some of the pleadings in complaint, where unfair trade practice has been alleged. In paragraph 29, 30 and 31, following has been pleaded:
"29. The Housing construction or building activity carried on by a private or statutory body is service within meaning of clause (o) of S.2 of the Act. Construction of a house of flat is for the benefit of person for whom it is constructed. When the respondent developed land at allotted sites and constructed flats house for the benefit of the petitioner and others it is as much service as by a builder or contractor. As the service is defective and is not what was represented, hence, it is an unfair trade practice as defined in the Act. Such defects in construction activity are a denial of comfort and service to the petitioner. When possession of property is not delivered within the stipulated period the delay so caused is denial of service.
30. That the respondent has committed inter-alia the unfair trade practices as set out under Section 36(A) and in particular by adopting an unfair method and practice of in Section 36(A) (i) & (ii) by falsely representing that their services and goods are of a particular standard, 29 quality and grades whereas they have been found to be defective incomplete and not capable of occupation. By falsely representing under Section 36(A) (i) (iv) that their services have performance etc. which such services do not have. By enhancing prices arbitrially. The respondent has also failed to fulfill and perform the representations made by it under Section 36A (i) (vi) by making a false and misleading representation regarding the usefulness of its services and goods, under Section 36-A (i) (ix) by materially misleading the consumer regarding the prices at which its goods and services have been provided.
31. The respondent has committed also inter-alia several restrictive trade practices as defined under Section 2(o) (ii) of the MRTP Act, by indulging in trade practices which have brought about the manipulation of prices and conditions of delivery and imposed unjustified costs and restrictions on the complainant by enhancing the prices initially stated by it, charging interest both simple and penal changing the areas of the flat, unilaterally asking for a higher price for the same, not offering vacant possession of the premises even after a period of 17 years sitting on the deposit of the complainant without any recompense blocking the money paid. The complainants also apprehend that the respondent will change the location of the flats allotted to them and/or will give less area as agreed to. The complainants are also entitled to interest on the payments made by them and on other counts as well."
29. In the affidavit of evidence, which has been filed by Complainant No.2
- Manish Arora, details of all correspondence between the parties including 30 the reply submitted has been proved. The premises which was allotted to the Complainants in the year 1982-1983 for which part payment was received by the Respondent, till the year 1999 the possession was never offered to the Complainants. Whereas, they have categorically mentioned that they are ready to pay within seven days, the actual balance amount payable by them as per the agreed costs. The letter written by Respondent dated 12.02.1999, by which an amount of Rs.3,82,739/24 was demanded for the premises B-1. Similarly, different amounts were demanded with regard to other three premises. The total cost of the flat which was agreed for B-1 was Rs.1,05,700/-. By letter dated 19.02.1999, the Complainant immediately objected to the illegal and arbitrary demand by citing about the agreed amount for the cost of the flats and the unwarranted charges claimed by Respondent like fire fighting charges, electric connection charges, escalation charges, security deposit + compound interest. According to the Complainant the balance amount was only Rs.63,220/-, whereas an amount of Rs.3,82,739/24 was demanded for B-1. The Respondent without replying to the objections raised in the letter dated 19.02.1999, proceeded to cancel the allotment by letter dated 08.04.1999. From the materials on record, it is clear that after cancelation of allotment of the Complainant, the Respondents claimed in the reply that they have allotted the plots to other persons, which has been mentioned in paragraph 4 of the reply, which is as follows:
"4. That the two flats in question have been mortgaged to Ajit Singh House Flat Buyers Association through its President Meera Prasad and Treasurer 31 Mr. M.P. Singh on 30.08.1999 and one flat with buy has been sold to M/s Buildmore India Ltd through its MD. Manmohan Kaur on 20.05.1999 to the knowledge of the complainant. It is further submitted that the complainant is paragraph 27 of its complaint has since stated that they are ready to take possession subject to payment of charges, then, the respondents one ready and whiling to give possession of the alternative flats on payment of Rs.15,51,413.78. The two flats on ground floor may be given on receipt of the amount from the complainants and getting the mortgage clean from the Association. But the respondent will be given alternative area in the basement as the flat is basement has already been sold on 20.05.1999."
30. The Respondent also stated that they are willing to give possession of the alternative flats in basement on payment of Rs.15,51,413.78. In the above context, we may notice one earlier letter written by the Respondent to the Complainant on 26.03.1990 that in the event Complainant did not make the payment, they will have no option except to reduce the area of the Flat proportionate to the amount outstanding of their account. Letter dated 26.03.1990 has been filed and has been admitted by the Respondent. Separate letters dated 26.03.1990 were issued for all the premises, in which letter after demanding an amount of Rs.88,410/- with regard to B- 1, following was stated:
"You are, therefore, requested to kindly remit the aforementioned outstanding positively on or before April 3, 1990 failing which we shall have no option except to 32 reduce the area of your flat proportionate to amount outstanding on your account."
31. The ingredients of unfair trade practice have been clearly laid down by the Hon'ble Supreme Court in (2003) 1 SCC 129 in Colgate Palmolive (India) Ltd. vs. MRTP Commission and Others. In paragraph 16, the following has been laid down:
"16. A bare perusal of the aforementioned provision would clearly indicate that the following five ingredients are necessary to constitute an unfair trade practice:
1. There must be a trade practice [within the meaning of Section 2(u) of the Monopolies and Restrictive Trade Practices Act].
2. The trade practice must be employed for the purpose of promoting the sale, use or supply of any goods or the provision of any services.
3. The trade practice should fall within the ambit of one or more of the categories enumerated in clauses (1) to (5) of Section 36-A.
4. The trade practice should cause loss or injury to the consumers of goods or services.
5. The trade practice under clause (1) should involve making a "statement" whether orally or in writing or by visible representation."
32. From the pleadings of the Complainants and the evidence on record, following are the incidence of unfair trade practice which are found to have been practiced by Respondents on the Complainants -
(i) The cost of each of the four Flats is an admitted fact as is apparent from the pleadings of the parties as noted above in 33 total cost of the flats with area and rate offered in paragraph 14 of the complaint had been admitted in reply filed by the Respondents;
(ii) The amount with regard to each Flats as paid by the Complainant is also an admitted fact. Payments were made by the Complainant between years 1982-1985. The Respondent started demanding exorbitant amount in excess of the agreed cost of the Flat from time to time. In the last demand letter dated 12.02.1999, exorbitant amount was demanded for each of the plots. The admitted amount paid and exorbitant cost demanded are reproduced below in following chart:
Sl. Premises No. Total initial cost Initial part Payment No. and area payment demanded as per letter dt.12.02.1999
1. B-1, 350 sq. ft Rs.1,05,700/- Rs.42,280/- Rs.3,82,739/-
2. B-2, 332 sq. ft Rs.1,00,264/- Rs.40,105/- Rs.3,63,005/-
3. G-9, 92 sq. ft Rs.82,800/- Rs.33,120/- Rs.2,24,726/-
4. G-10, 138 sq. Rs.1,24,200/- Rs.49,680/- Rs.3,57,079/-
The above chart clearly indicates that as against the agreed cost of the each Flats, exorbitant amount was demanded from the Complainants by the Respondent, which is nothing else then unfair practice adopted by Respondent against the Complainants. The cancelling the allotments of each of the four Flats by letter dated 08.04.1999 and refund of meagre amount by cheques, which were accompanied along with the letter against the amount received in the year between 1982- 34 1985 is another incidence of unfair trade practice. The amount which were refunded by cheques vide letter dated 08.04.1999 were to the following effect:
Sl. Premises Initial part Refunded Percentage of No. No. payment amount with refund made cheques
1. B-1 Rs.42,280/- Rs.5,285/- 12.5%
2. B-2 Rs.40,105/- Rs.5,013.20 12.5%
3. G-9 Rs.33,120/- Rs.4,140/- 12.5%
4. G-10 Rs.49,680/- Rs.6,209.80 12.5% The cancellation letter itself mentions that allotment has been cancelled and 35% of total Flat cost has been forfeited. The Respondent received the amount from the Complainants in the year 1982-1985 and enjoyed the amount along with interest earned on the said amount and while refunding the amount without any rhyme or reason has deducted 35% of total Flat cost from the amount paid by the Complainants. Such exorbitant deduction of amount from the amount received from the Complainants is another incidence of unfair practice by the Respondent. It is further noticed that in the letter dated 12.02.1999, which was issued with regard to each of the Flats, third paragraph of the said letter mentions:
"This is last and final reminder if you will not clear outstanding which stands against your account within 15 days of receipt of this letter, we shall be bound to cancel your flat without any further notice and will refund the deposited amount without interest/any clam after forfeitting the earnest money."35
Even the notice which preceded the cancellation of allotment of Flats, mentions that the deposited amount shall be refunded without interest after forfeiting the earnest money, but when allotment was cancelled 35% of the total Flats' cost were deducted arbitrarily. Deduction of such huge amount from the amount deposited is an incidence of unfair practice by the Respondent.
(iii) The advertisement which were issued in the year 1982 inviting applications for commercial space/ shop represented that possession will be handed over within a year. Allotments were made to the Complainants and they deposited the amount between the year 1982-1985 and for more than 17 years, no steps were taken for handing over the possession to the Complainants, which fact clearly establishes the adoption of unfair practice by the Respondent against the Complainants.
(iv) After the cancellation of the Flats, when complaints were filed by the Complainants, in reply filed by Respondents, they came with the specific plea that the Respondents are ready and willing to give possession of alternative Flats on payment of Rs.15,51,413.78 against the Flats which were lawfully allotted to the Complainants for which substantial payments were made by the Complainants and they in writing expressed their willingness to make the payment of due amount against them. The Complainants also in their letter dated 19.02.1999 36 objected to various illegal demanded amount, which was never responded by the Respondent and straightway the Flats were cancelled. In the reply, the demand of huge amount of Rs.15,51,413.78 against the total cost of the four Flats being Rs.4,12,964/- is another incidence of adoption of unfair practice by the Respondent against the Complainants.
33. The definition of 'unfair trade practice' as given in Section 36-A is that "for the purpose of promoting the sale, or for the provision of any services, adoption of any unfair method or unfair or deceptive practice" is unfair trade practice within the meaning of Section 36-A of the MRTP Act, 1969. The above noted incidence of unfair trade practice, clearly fall within the definition of 'unfair trade practice', that is, Section 36-A.
34. The ingredients as laid down by the Hon'ble Supreme Court in the above case are clearly fulfilled in the complaint filed by the Complainants and proved by the evidence, which was led in support of the complaint as noticed above. We, thus, are satisfied that the Complainants have succeeded in proving that the Respondents have adopted unfair trade practice within the meaning of Section 36-A of the MRTP Act, 1969.
35. The learned Counsel for the Complainants has placed reliance on judgment of this Appellate Tribunal in Transfer Original Petition (AT) (MRTP) No.5 of 2017 - Dr. (Mrs.) Manjeet Kaur Monga vs. Mr. K.L. Suneja & Anr. In the above case, one Smt. Gursharan Kaur, a home buyer deposited three instalments, after which she died and her daughter Dr. (Mrs.) Manjeet Kaur deposited the 4th instalment and was issued allotment 37 letter dated 21.05.1992 of Flat No.D-301. The allottee resisted payments of certain instalments on the ground that there was no intimation about the completion of work and delivery of possession. The Respondents instead of informing the Complainant of the progress, cancelled the allotment of Flat on 30.04.2005 and along with cancellation, full refund of payment was made. A complaint was filed under Section 36 of the MRTP Act, 1969. The Complainant also filed an application for claiming compensation. The COMPAT disposed of the complaint while holding that Respondent made the false representation to the general public including the Complainant about the time within which the project was to be completed, but the Respondent did not complete the project for more than one decade. The Respondent was held guilty of practice under Section 36- A (1) (i), (ii) & (ix). It was held that the Complainant was justified in not paying further installments. The COMPAT while declining the issue for direction to deliver the possession, however, looking to the fact that Complainant was subjected to harassment for a period of 25 years, the COMPAT directed the Respondent to pay compound interest @ 15% per annum. The order of COMPAT was assailed by both the parties. The Hon'ble Supreme Court on 18.07.2017 upheld the award of compensation to legal representatives of the Complainant. The Hon'ble Supreme Court disposed of the Appeal, remitting the matter to COMPAT with following direction:
"(i) The Citibank N.A., represented by its Manager, Jeevan Bharti Building, 124, Connaught Circus, New Delhi will stand impleaded as additional 38 respondent in the complaint before the Competition Appellate Tribunal, New Delhi.
(ii) The builder shall pay the compensation worked @15% compound interest up to 30.04.2005.
(iii) Whether there should be any compensation and if so, what should be the amount payable after 30.4.2005 and whether the Citibank is liable to pay any interest to the account holder by the Tribunal.
After remand by the Hon'ble Supreme Court, this Appellate Tribunal decided the complaint. This Tribunal upheld the direction of 15% of compound interest in paragraph 15 to the following effect:
"15. After having fathomed through the depths of the material on record and in view of the findings recorded by COMPAT in terms of order dated 3rd August, 2015, we find that the direction of the Hon'ble Apex Court in terms of its judgment dated 18th July, 2017 disposing of the appeals filed by both the parties has somewhat been misconstrued by the legal representatives of the deceased Complainant in so far as direction in regard to compensation is concerned. In this regard, it would be appropriate to refer to the finding recorded by COMPAT on the issue of compensation admissible to the legal representatives of the deceased Complainant on account of unfair trade practice indulged in by the Respondent Company and the Builder and the harassment suffered by the Complainant and her legal representatives. COMPAT while returning findings on issues no. 1 and 2 found that the Respondents had made a false representation to the general public including Smt. Gursharan Kaur about the time within which the project 39 was to be completed i.e. three years but did not complete the construction for more than one decade. COMPAT, accordingly, held the Respondents guilty of unfair trade practice as defined under Section 36A(i), (ii) & (ix) of the MRTP Act. COMPAT further held that the Complainant Dr. Manjeet Kaur Monga, having deposited three installments besides three installments initially deposited by Smt. Gursharan Kaur (total Rs.4,53,750) did not deposit further installments because the Respondents did not complete the construction within the stipulated time. COMPAT was of the view that the Complainant was justified in not paying further installments of price and the Respondents committed grave illegality by cancelling the allotment. In regard to prayer for direction to respondents to deliver possession of Flat No. B-301 in Siddharth Shila Apartments, Vaishali Township Ghaziabad, COMPAT, following the law laid down by Hon'ble Apex Court in 'Ved Prakash Aggarwal's' case held that the Tribunal was not competent to issue direction to the Respondents to deliver physical possession of the flat but there was ample justification for awarding compensation by invoking Section 12B of the Act and even otherwise because the Complainant and her legal representatives have been subjected to harassment for the period of more than 25 years. It observed that between August, 1989 and October, 1993 Smt. Gursharan Kaur and the Complainant deposited a total sum of Rs.4,53,750/- in the form of installments and the Respondents not only failed to complete the project but also failed to return the installments deposited by them. The amount was returned only alongwith the cancellation letter and the Complainant had returned the Pay Order with the legal 40 notice sent on 7th September, 2005. With regard to quantification of compensation COMPAT observed that though Section 12B empowered the Tribunal to award compensation but no criteria had been laid down for exercise of that power. Having regard for the fact that the construction of the flat was delayed by more than a decade and the amount of installments deposited by Smt. Gursharan Kaur and the Complainant totaling Rs.4,53,750/- was retained by the Respondents for a period between 12 to 15 years, COMPAT directed the Respondents to pay compound interest @ 15% per annum to the legal representatives of the Complainant. The interest was directed to be calculated on each installment from the date of deposit till 30th April, 2005 i.e. the date on which the allotment was cancelled. This was besides the deposited amount of Rs.4,53,750/- that was directed to be paid alongwith the compound interest as aforesaid to the legal representatives of the Complainant within three months from the date of the order. While disposing of the appeals filed by both sides, the Hon'ble Apex Court dealt with the issue of compensation determinable under Section 12B of the Act, as follows:-
"5. We do not think that there needs to be any elaborate consideration of the meaning of the word "compensation" in terms of the amount referred to under the Section. The amount referred to under the Section is the amount @ 15% compound interest on the amount already deposited, as ordered by the Tribunal. Merely, because a liquidated amount is not stipulated or determined by the Tribunal, it cannot be said that it is not the compensation. Once the interest, as ordered by the 41 Tribunal, is calculated that will be the amount of compensation referred to under Section 12B of the Act."
In view of the aforesaid, it can be stated without any fear of contradiction that the compensation worked @ 15% compound interest upto 30th April, 2005, as awarded by COMPAT and confirmed by the Hon'ble Apex Court in appeal holding the same as compensation admissible within the purview of Section 12B of the Act, notwithstanding the fact that the amount so calculated was not a liquidated amount either stipulated in the Act or determined by the Tribunal, would be the compensation to which the legal representatives of the Complainant have been found entitled to, besides the refund of principal amount of Rs.4,53,750/- paid by the deceased Smt. Gursharan Kaur and the Complainant as installments of price amount of the allotted flat. This is the true import of the order passed by the Hon'ble Apex Court in the context of observations made in Para 5 of its judgment quoted hereinabove. Any other interpretation on the issue of compensation would run counter to the findings recorded by COMPAT and affirmed by Hon'ble Apex Court in appeal. We accordingly, hold that the issue of compensation admissible to the legal representatives of Complainant within the ambit and scope of Section 12B of the Act stands settled in so far as it relates to period ending 30th April, 2005."
In paragraph 16 of the above judgment, this Tribunal further directed:
42
"16. .......It is manifestly clear that the legal representatives of the Complainant did not get the refund of Rs.4,53,750/- in terms of order dated 3rd August, 2015 passed by COMPAT as the funds were credited back to the account of Respondent No. 2 Company on 16th June, 2016 and a fresh Pay Order bearing No.262910 dated 16th June, 2016 favouring 'Suneja Towers Pvt. Ltd.' was issued by Respondent No. 3 on the request of Respondents No. 1 & 2. From affidavit sworn by Respondent No.1 on 18th October, 2017, it emerges that the Respondents No. 1 and 2 refunded the amount of Rs.4,53,750/- in favour of the legal representative of the deceased Complainant by enclosing Managers Cheque No. 021566 for the same amount with their letter dated 7th May, 2016 in lieu of cancellation of the Managers Cheque given to Complainant in the year 2005. This is stated to have been done in compliance to the orders of Hon'ble Apex Court dated 8th April, 2016 and 29th April, 2016. The letter alongwith the Managers Cheque in question forms Annexure 'C' to the affidavit. It is abundantly clear that the legal representatives of the deceased Complainant did not get the refund of Rs.4,53,750/- in terms of order of COMPAT till 7th May, 2016. This factual position is not refuted by the legal representatives of the deceased Complainant who did not respond to assertion of facts by Respondents No. 1 and 2 in their affidavit which is supported by documentary evidence. It is accordingly found that the direction of COMPAT in terms of order dated 3rd August, 2015 in regard to payment of Principal amount of Rs.4,53,750/- stood not complied with till 7th May, 2016. In view of the same, the legal representatives of the Complainant would be entitled to further compensation 43 in the form of compound interest @ 15% per annum on the principal amount of Rs.4,53,750/- w.e.f. 1st May, 2005 till 7th May, 2016 further entitled to pendentelite and future interest till realization of the accumulated arrears from Respondents No. 1 and 2......."
36. Learned Counsel for the Complainants submits that what was held by this Appellate Tribunal in the above case is fully attracted in the present case. The Complainants are clearly entitled for refund of the amount deposited by the Complainants along with compound interest. In this context we may also notice judgment of the Hon'ble Supreme Court in Ghaziabad Development Authority vs. Ved Praksh Aggarwal [AIR 2008 SC 2569] in which case, the Hon'ble Supreme Court laid down that under the MRTP Act, 1969, the Commission could not direct for giving the possession of Flats, which was in the jurisdiction of Civil Court. However, in the said judgment, the Hon'ble Supreme Court simultaneously laid that that Commission has power to impose damages or give compensation to the Complainant as a mode of redressal for harm caused by the unfair trade practices. The Hon'ble Supreme Court has laid down following in paragraphs 13 and 14:
"13. Having decided Issue 1 in the manner indicated above, the other question that we need to decide is whether the MRTP Commission had the jurisdiction to direct GDA to hand over possession of a vacant plot of 90 sq m 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 44 MRTP Commission was clearly in error in directing GDA to hand over possession to the respondent.
14. Under the Act, there are provisions for inquiries that can be instituted by the MRTP Commission while Section 36-D read with Sections 12-A and 12-B 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."
The above judgment of this Tribunal fully supports the submission and case of the Complainants.
37. In view of the above discussion, we hold that the Complainants have pleaded and proved that Respondents have adopted unfair trade practice within the meaning of Section 36-A of the MRTP Act, 1969. The question No(1) is answered in affirmative.
Question No.(2)
38. Section 12-B of the MRTP Act, 1969 is as follows:
"12B. Power of Commission to award compensation. (1) Where, as a result of the monopolistic or restrictive, or unfair, trade practice, carried on by any undertaking or any person, loss or, damage is caused to the Central Government, or any Government or any 45 trader or class of traders or any consumer, such Government or, as the case may be, trader or class of traders or consumer may, without prejudice to the right of such Government, trader or class of traders or consumer to institute a suit for the recovery of any compensation for the loss or damage so caused, make an application to the Commission for an order for the recovery from that undertaking or owner thereof or, as the case may be, from such person, of such amount as the Commission may determine, as compensation for the loss or damage so caused.
(2) Where any loss or damage referred to in sub-
section (1) is caused to numerous persons having the same interest, one or more of such persons may, with the permission of the Commission, make an application, under that sub-section, for and on behalf of, or for the benefit of, the persons so interested, and thereupon the provisions of rule 8 of Order 1 of the First Schedule to the Code of Civil Procedure, 1908 5 of 1908 shall apply subject to the modification that every reference therein to a suit or decree shall be construed as a reference to the. application before the Commission and the order of the Commission thereon.
(3) The Commission may, after an inquiry made into the allegations made in the application filed under sub-section (1), make an order directing the owner of the undertaking or other person to make payment, to the applicant, of the amount determined by it as realisable from the undertaking or, the owner thereof, or, as the case may be, from the other person, as compensation for the loss or damage caused to the applicant by reason of any monopolistic or restrictive, or unfair, trade practice carried on by such undertaking or other person.
46
(4) Where a decree, for the recovery of any amount as compensation for any loss or damage referred to in sub-section (1) has been passed by any court in favour of any person or persons referred to in sub-section (1) or, as the case may be, sub-section(2), the amount, if any, paid or recovered in pursuance of the order made by the Commission under sub-section (3) shall be set off against the amount payable under such decree and the decree shall, not- withstanding, anything contained in the Code of Civil Procedure, 1908, 5 of 1908 or any other law for the time being in force be executable for the balance, if any, left after such set off."
39. We have noted above the contents of the complaint filed by the Complainants and the details of the payments made by them. The Respondents in their reply and subsequent correspondence has admitted the payments made by the Complainant with regard to B-1, B-2, G-9 and G-10, but learned Counsel for the Respondents submits that the Complainants have also added the amount of proportionate plot restoration charges and proportionate ground rent charges for arriving the total amount of Rs.3,23,944.60/-, it is submitted by the learned Counsel for the Respondents that the said amount was not paid to the Respondents. Be that as it may, it is on the record that restoration of plot was made by efforts of the Association as well as Respondent No.1. The Delhi High Court has permitted the Association to directly pay the ground rent, consequent to which, ground rent was paid by Flat Buyers and Shop Owners Association and was accepted by the DDA. It is also noticed that restoration of plot was made on subject to certain payments and payment 47 of ground rent as well as restoration charges were made by the Association after collecting it from all Flat Buyers. The payments made by the Association were towards the liability, which Respondent No.1 owed to the DDA and ought to have discharged. On account of failure of the Respondent to pay ground rent, the plot was cancelled, hence, the proportionate restoration charges and the proportionate ground rent charges were paid by the Complainant to the Association. The Complainants are entitled to add the amount paid by it to the Association. Hence, we accept the submission of learned Counsel for the Complainants that total payments made by them towards all the Flats as well as proportionate stamp duty and ground rent charges is Rs.3,23,944.60/-
40. The question is as to whether in the facts of the present case, the Complainants are entitled for compensation as contemplated by Section 12-B. The learned Counsel for the Respondents has made strenuous submission that since no separate application has been filed by the Complainants under Section 12-B, they are not entitled for payment of compensation. The present is a case where in the complaint, which was filed in the year 1999, by which time the judgment of Hon'ble Supreme Court in Ghaziabad Development Authority (supra) was not available. The Complainants had prayed for handing over vacant possession of Flats. Apart from above prayer in prayer clause (f) there was a general prayer "any other or further order as may be necessary". In prayer clause (g) and (h), the Complainants have also prayed for relief and cost. Prayer clauses (e),
(f), (g) and (h) have been added in handwriting, which is part of the original complaint duly signed by the counsel as well as verification by the 48 Complainant. In the facts of present case, we are of the view that claim of compensation under Section 12-B to the Complainants cannot be denied only on the ground that no separate application has been filed. The complaint filed by the Complainants contains all facts including the deposits made by them, which have also been admitted by Respondents in their reply as noted above. Denying the compensation to the Complainants, shall be denial of justice to the Complainants, who have been waiting for delivery of possession of the commercial space allotted to them for 17 years, were suddenly met by an order cancelling the allotment. We, thus, are of the view that Complainants are entitled for award of compensation as contemplated by Section 12-B of the MRTP Act, 1969. Question No.3
41. The learned Counsel for the Respondents has submitted that the complaint was filed by a Trust, which cannot be said to be a 'consumer', hence, the complaint is not maintainable. The learned Counsel for the Complainants has refuted the said submission on the ground that such plea was never raised before the Commission, in the reply or by any other mode and at the time of arguments, suddenly, Respondents cannot be allowed to raise this plea. The reply to the complaint was filed by the Respondents on 17.04.2001. In the entire reply, there is no plea taken that complaint on behalf of Trust is not maintainable.
42. There is one more reason for not accepting the submission of learned Counsel for the Respondent regarding maintainability of the complaint. A perusal of the complaint indicates that complaint had been filed by five person and Complainant No.1 is Bansi Lal Arora Trust, Complainant No.2 49 is Manish Arora, Complainant No.3 is Ritu Arora, Complainant No.4 is Deepti Arora and Complainant No.5 is Vani Arora. The paragraph 1 of the complaint states:
"1. That the complainants 2-5 are beneficiaries of a trust set up by their father for their benefit and in the name of complainant no.1, being the trust, have purchased property from the respondents and availed of the services of the respondent. The complainants are consumer of the services of the Respondents within the meaning of Section 2(r) of the MRTP Act."
43. The Trust was setup by the father of Complainant Nos.2 to 5 for their benefit. Complainant Nos. 2 to 5 were also beneficiaries. We cannot accept the submission of learned Counsel for the Respondents that the complaint being filed by a Trust, it should be rejected. The complaint is not only by Trust, but there are four other individuals, who are beneficiaries of the Trust. The learned Counsel for the Respondents has placed reliance on judgment of the Hon'ble Supreme Court in AIR 2017 SC 1303 - Pratibha Pratisthan and Ors. vs. Manager, Canara Bank and Ors. The above case arose out of the Consumer Protection Act, 1986 and Hon'ble Supreme Court had considered the provision of Section 2(b), which defines "complainant". In paragraph 2 and 3, following has been laid down:
"2. Section 2(1)(c) of the Act provides for a complainant making a complaint, inter alia, for an unfair trade practice or a restrictive trade practice adopted by any trader or service provider; a complaint in respect of goods (bought by a complainant) suffering from one or more defects; a complaint of deficiency in services hired or 50 availed of by a complainant and so on. A "complainant"
is defined in Section 2(1)(b) of the Act in the following words:
"2.(1)(b) "complainant" means--
(i) a consumer; or
(ii) any voluntary consumer association registered under the Companies Act, 1956 (1 of 1956) or under any other law for the time being in force; or
(iii) the Central Government or any State Government; who or which makes a complaint; or
(iv) one or more consumers, where there are numerous consumers having the same interest;
(v) in case of death of a consumer, his legal heir or representative;"
3. It is quite clear from the above definition of a complainant that it does not include a trust. But does a trust come within the definition of a consumer?
A "consumer" has been defined in Section 2(1)(d) of the Act as follows:
"2.(1)(d) "consumer" means any person who--
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or promised or 51 partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person; but does not include a person who avails of such services for any commercial purpose;
Explanation.--For the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self- employment;"
44. In the case before the Hon'ble Supreme Court, the complaint was filed by a Trust, whereas in the present case, the complaint is also by four individuals, who are beneficiaries. Hence, the judgment of Hon'ble Supreme Court is distinguishable. Further, no objection regarding the maintainability has been taken by the Respondents in the pleading, as is now sought to be contended at the time of hearing. Such objection deserves to be rejected and is hereby rejected.
Question No.4
45. A counter affidavit dated 27.10.2018 has been filed by the Respondent wherein the Respondent has brought on record Notice dated 01.09.2017 pursuant to sub-section (5) of Section 248 of the Companies 52 Act, 2013, striking-off the name of 2495 companies. In that list, the name of Respondent is also reflected at Sl. No.20601. The submission of learned Counsel for the Respondent is that in view of the said Notice, the Company stood dissolved, hence, complaint deserves to be dismissed on this ground alone. Section 248 of the Companies Act, 2013 enumerates the power of Registrar to remove the name of the Company from Register of Companies.
The Section 248, sub-section (5), (6) and (7), which are relevant to the case are as follows:
"248(5) At the expiry of the time mentioned in the notice, the Registrar may, unless cause to the contrary is shown by the company, strike off its name from the register of companies, and shall publish notice thereof in the Official Gazette, and on the publication in the Official Gazette of this notice, the company shall stand dissolved.
(6) The Registrar, before passing an order under sub-section (5), shall satisfy himself that sufficient provision has been made for the realisation of all amount due to the company and for the payment or discharge of its liabilities and obligations by the company within a reasonable time and, if necessary, obtain necessary undertakings from the managing director, director or other persons in charge of the management of the company:
Provided that notwithstanding the undertakings referred to in this sub-section, the assets of the company shall be made available for the payment or discharge of all its liabilities and obligations even after the date of the order removing the name of the company from the register of companies.53
(7) The liability, if any, of every director, manager or other officer who was exercising any power of management, and of every member of the company dissolved under sub-section (5), shall continue and may be enforced as if the company had not been dissolved."
46. There is no dispute that the name of Respondent No.1 Company has been struck-off by Notice dated 01.09.2017. The Respondent No.2 was the Managing Director of Respondent No.1 and was in-charge of the management of Respondent No.1. The unfair trade practice adopted by Respondent, which culminated by cancellation of allotment by letter dated 08.04.1999 were acts done by Respondents, which incurred the liabilities under the Act at the relevant time. Unfair trade practice committed by Respondents at the relevant time, that is, upto 08.04.1999 were to be dealt by under the Act. The complaint was filed by the Complainant immediately on 20.08.1999, which was also entertained and interim order of injunction was also passed by Commission on 23.09.1999. Even order dated 23.09.1999 also observed that forfeiture of such big amount is prima-facie unfair trade practice on the part of the Respondent. In this context following portion of the order dated 23.09.1999 is as follows:
"The allotment cancellation letters of 8th April, 1999 purport to forfeit the deposited amount to the tune of 35% of the price of the property. Forfeiture of such big amount would prima facie amount to unfair trade practice on the part of the Respondents for the simple reason that it would be in the nature of damages by way of penalty which would be hit by Section 73 of Indian Contract Act, 1872. We are therefore of the view that the 54 applicant/ complainants have been able to establish their prima facie case for the purposes of this interim relief application.
The balance of convenience is also in favour of the applicants/ complainants for the simple reason that they have already paid 35% of the price of the property to the respondents and, if no interim relief is granted at this stage, the success, if any, of the applicants/ complainants on logical conclusion of the proceedings would become infructuous and illusory. As against this, grant of ad interim relief would not cause any harm or hardship to the respondents inasmuch as they have already with them 35% of the price of the property as aforesaid. It is therefore necessary to prevent the respondents from creating any interest of any third party with respect to the subject matter of this proceeding.
In the result, an ex parte ad interim injunction is ordered to be issued to the respondents restraining them from creating any interest of any third party in the subject-matter of this proceeding till further orders."
47. As submitted by learned Counsel for the Complainants, the disposal of the complaint was held by several delaying tactics adopted by the Respondents. We have gone through the order of the Commission and the COMPAT, which indicate that the Respondents did not cooperate with the proceedings and on one or other pretext sought adjournments. Before the Commission on 04.02.2004, on the request of the learned Counsel for the Respondent that there is possibility of out of court settlement, the matter was adjourned. The order dated 04.02.2004 states: 55
"Today the case is fixed for final arguments. Learned advocate who is representing the respondent, in this case, has entered appearance today and he prays for an adjournment, as according to him, there is possibility of an out of court settlement and he wants to bring about an amicable settlement of the dispute. As prayed, the case is adjourned to 15th April 2004 for consideration and/or for directions."
48. Subsequently, on another request made by Respondent before the COMPAT that there is chance of settlement, the COMPAT by order dated 15.05.2014 referred the matter to Delhi High Court Mediation and Conciliation Centre to mediate. However, mediation could not succeed since a submission was made before the Delhi High Court Medication and Conciliation Centre that the Respondent Company is in liquidation and Shri Prabhajeet, who appeared before the Mediator had no authority to enter settlement. Even before this Tribunal time was taken by the parties for settlement, which was noticed in order dated 22.02.2022, which is to the following effect:
"22.02.2022: As prayed by Learned Counsel for the Respondent, list these matters on 08th March, 2022 to enable the parties to negotiate between them for arriving at a settlement."
49. The sequence of events due to which the complaint remained pending before the Commission, COMPAT and before this Appellate Tribunal have been noticed above. The mere fact that complaint could not 56 be decided before the date when Company was stuck-off from the Register of Companies cannot be a ground to reject the complaint as non- maintainable. Sub-section (7) of Section 248 of the Companies Act, 2013, as noted above clearly continue the liability of every Director, manager or other officer, which may be enforced, as if the Company had not been dissolved. Company through its Director indulged in unfair trade practices and they cannot go away scot-fee merely on the ground that Company has been struck-off with effect from 21.08.2017. We, thus, reject the submission of learned Counsel for the Respondents that the complaint deserves to be dismissed on the ground that Company has been struck-off with effect from 21.08.2017.
Contempt Case (AT) (MRTP) No. 05/2017 In Transfer Original Petition (AT) (MRTP) No. 04/2017 (Old Contempt Application No. 02 /2016 in Old RTPE No. 176/1999)
50. The Commission vide its order dated 23.09.1999 had restrained the Respondent from creating any third party interest in the subject property, which injunction was confirmed on 01.12.1999. An Application under Section 12-A (2) of the MRTP Act, 1969 was filed on 12.03.2011 by the Complainants alleging violation and contempt by the Respondents. In the contempt application apart from Tejwant Singh, who was impleaded as Respondent No.2, Shri Prabhjeet Singh was also impleaded as Respondent No.3. The COMPAT had directed Shri H.P. Sharma, who was functioning as a Court Commissioner to inquire into the matter and file an affidavit. An affidavit was filed by Shri H.P. Sharma dated 06.02.2010 stating that 57 there was no violation of the orders and no third party appears to have been created. On the basis of the said report of Court Commissioner, the Contempt Application was rejected by COMPAT on 20.05.2011. It was after rejection of the Contempt Application, Contempt Application No.01 of 2016 was filed by the Complainants relying on certain materials to indicate that Respondents have created third party rights, violating the injunction order. In the contempt, notice was issued by the COMPAT, which contempt, however, was subsequently dismissed on 19.10.2016. In the Contempt Application No.02 of 2016, the COMPAT issued notice to the non- applicants Nos.2 and 3. The notice could not be easily served and could be served only by substituted service, when non-applicant Nos.2 and 3 appeared. The order in the Contempt Application could not be pronounced in view of the Notification dated 26.05.2017 and Contempt Application was heard by this Tribunal. The learned Counsel for the Complainants relying on the supplementary affidavit and the materials which were brought on record including the record from office of DDA and other material to indicate that third party rights were created, which was successfully concealed by the Respondents. Allegations against non-applicant Nos.2 and 3 have been denied by the learned Counsel for the Respondents submitting that Contempt Applications have already been rejected twice for violation of the same order, need not be proceeded any further.
51. We have considered the submissions of learned Counsel for the parties and have perused the record. We have already noticed the judgment of Hon'ble Supreme Court in Ghaziabad Development 58 Authority vs. Ved Praksh Aggarwal (supra) that in proceedings under 1969 Act, no direction can be issued for handing over possession of the Flats. There is no entitlement of the Complainants with regard to the Flats and in the reply, which has been filed by the Respondents to the Contempt Application, they have clearly stated that out of the four Flats in question, two flats which were on ground floor have already been mortgaged to Ajit Singh House Flat Buyers Association through its President Meera Prasad to M.P. Singh Meera, Treasurer on 30.08.1999 and flat in the basement has been sold to M/s Buildmore India Ltd. through its MD on 20.05.1999. In the facts and circumstances of the present case, we see no reason to proceed any further with the Contempt Contempt Case (AT) (MRTP) No. 05/2017 in Transfer Original Petition (AT) (MRTP) No. 04/2017 (Old Contempt Application No. 02 /2016 in Old RTPE No. 176/1999). The Contempt Application is closed.
Question No.(5)
52. In view of foregoing discussions and our answer to the Questions as noted and dealt above, we are of the opinion that Complainants are entitled for relief in this complaint.
ORDER The complaint is disposed of with the following directions:
(i) The Complainants are entitled to refund of total amount of Rs.3,23,944.60 with 8% compound interest with effect from 08.04.1999 (date on which allotment was cancelled) till the payment is made. The Respondent No.2 is directed to make 59 the aforesaid payment within a period of four weeks from today.
(ii) Apart from refund as we have directed at point (i) above, the Complainants are also entitled for compensation to compensate for loss or damages caused to them by the unfair trade practices of the Respondents. We award compensation of Rs.5,00,000/- to be paid by Respondent No.2 within a period of four weeks from today in addition to the amount of refund as directed above.
53. In the result Transfer Original Petition (AT) (MRTP) No.04 of 2017 is allowed to the extent as directed above. The Contempt Case (AT) (MRTP) No. 05/2017 is closed. The parties shall bear their own costs.
[Justice Ashok Bhushan] Chairperson [Dr. Alok Srivastava] Member (Technical) NEW DELHI 18th April, 2022 Ash/NN 60