Monopolies and Restrictive Trade Practices Commission
Director General (Investigation And ... vs Dlf Universal Ltd. on 8 March, 2004
Equivalent citations: III(2004)CPJ4(MRTP)
ORDER
Mr. R.L. Sudhir, Member
1. On a complaint received from Dilshad Plaza Residents Welfare Association alleging adoption of unfair trade practices by the respondent, namely, M/s. DLF Universal Ltd., the Director General (Investigation and Registration) (DG for short) was directed to enquire into the allegations made in the complaint. After investigation, DG submitted a Preliminary Investigation Report (PIR) on 25th May, 1998. In the PIR, the complainant Association is stated to have made the following allegations :
(i) The possession was not given in 12 months from the date of booking of the flats. At a point of time (30th March, 1993) they sent a letter to all the customers that the flats were ready for possession but practically refused as the flats were not ready. It was done to make the case of deemed possession.
(ii) After the flats were handed over, the residents got a demand for the cost of increased area. Surprisingly, DLF came to know so late after the flats were handed over. Not even when the contractors were paid on actual measurements.
(iii) Even when the possession was refused, the customers were forced to pay quarterly instalments as a condition to give the possession.
2. In support of the allegations, the following cases have been cited where there was delay in giving possession of the flats.
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S. Name Flat No. Date of Date of No. Booking Possession ---------------------------------------------------------- (1) (2) (3) (4) (5) ---------------------------------------------------------- 1. Shri R.K. Thakur D1/13/05 10.1.1991 11.1.1995 2. Shri N.K. Gupta D1/47/06 24.12.1991 9.2.1994 3. Smt. Meena Chowdhary D2/15/06 6.1.1992 14.3.1994 4. Shri Ajay Bhola D1/46/03 3.2.1992 28.1.1994 5. Dr. M.L. Gupta/ Nirmal Gupta D2/14/03 18.2.1992 4.3.1994 6. Shri I. P. Gupta D1/17/04 25.2.1992 30.8.1993 7. Shri Dilip N. Advani D1/48/05 7.12.1991 10.3.1994 8. Shri S.C. Basu D2/07/04 9.3.1992 14.9.1994 9. Mrs. Neena Chowdhary D1/14A/05 29.4.1992 16.3.1994 -------------------------------------------------------------
3. From the PIR, DG appears to be in agreement with the complainant association in respect of the allegations made against the respondent. DG has further stated that various acts of omission and commission on the part of the respondent amount to unfair trade practices within the meaning of Section 36A of the Monopolies and Restrictive Trade Practices Act, 1969 (referred to as the MRTP Act hereafter). The DG has also concluded that the respondent is guilty of restrictive trade practices within the meaning of Section 2(o)(ii) of the MRTP Act, as well.
4. Based on the PIR, a Notice of Enquiry (NOE) was issued to the respondent under Section 36B(d) read with Section 37 of the MRTP Act and Regulation 51 of the MRTPC Regulations, 1991. In its reply to the NOE, the respondent has denied the allegations of unfair trade practices and has stated that the present inquiry is of academic interest and infructuous because possession of apartments to all the 126 purchasers listed in the PIR has been given in terms of Clause 15A of the Apartment Buyers Agreement and they have no claim against the respondent now.
5. On completion of pleadings, the following issues were framed :
(i) Whether the respondent has been indulging in unfair trade practices as alleged in the Notice of Enquiry ?
(ii) Whether the alleged unfair trade practices are prejudicial to the interest of the consumer/consumers generally?
6. By way of evidence, DG filed the affidavit of Shri Nareder Kumar Gupta, the then Secretary of the complainant Association, along with supporting documents. Since the affidavit was not executed as per provisions of law, the DG was asked to file a proper affidavit which he failed to file despite giving several opportunities. As a consequence of this, the DG's evidence was closed. On behalf of the respondent, no oral or documentary evidence was filed and it was stated in the Court; that an out of Court settlement has been arrived at between the respondent and one Shri I.P. Gupta, who is one of nine allottees referred to in the PIR. As a sequel thereto, Shri Gupta had agreed to withdraw the civil suit as well as the complaint petition filed in the MRTP Commission. Thereafter, the case was posted for final hearing.
7. We have heard the submissions made by the learned Counsel for the parties and have also carefully gone through the relevant record. Learned Counsel for the respondent subsequently filed written submissions also, which have been taken on record.
8. Learned Counsel for the DG reiterated the conclusions arrived at by the DG in his PIR referred to above. He particularly mentioned that there was delay in handing over possession and referred to the 9 allottees whose cases have been cited in the PIR. Learned Counsel for the respondent submitted that this being a case relating to unfair trade practices, the burden of proof is on the DG to establish that the respondent was guilty of unfair trade practices as defined in the MRTP Act. In this connection he referred to the ruling of the Hon'ble Supreme Court in the case of HMM v. Union of India, reported in VI (1998) SLT 621=AIR 1998 SC at Pg. 2691. In addition, the DG will also have to establish public interest involved in the case, he added. He contended that in the instant case, DG has failed to discharge his onus.
9. Learned Counsel for the respondent further stated that one of the 9 allottees referred to in the PIR, namely, Mr. I.P. Gupta, had also filed a civil suit in the Court of Senior Civil Judge, Delhi, which was later compromised. In terms of this compromise, Mr. I.P. Gupta, made the payment due to the respondent and took possession of the flat. He had also given an undertaking before the Senior Civil Judge, Delhi, that in view of the compromise, the civil suit as well as the complaint petition filed in the MRTP Commission will be withdrawn. As regards the remaining 8 cases referred to in the PIR, learned Counsel for the respondent stated that admittedly there was delay in giving possession in all these cases but the respondent cannot be held responsible for the same. It is the allottees concerned who are to be blamed for delay because they defaulted in the payment of instalments. The learned Counsel referred to the rulings of the Hon'ble Supreme Court in Rajasthan Housing Board v. Parvati Devi, reported in III (1999) CPJ 9 (SC)=VII (1999) SLT 50=2000 CTJ 165 (Supreme Court) (MRTP) and Bharti Knitting v. DHL Courier, reported in II (1996) CPJ 25 (SC)=1996 4 SCC 704 and contended that before codemning an act as unfair trade practice, the Commission has to keep in mind the terms of the contract. In the instant case, the time mentioned in the contract for handing over possession was only the expected time which depended on various factors including payment of instalments to be made by the allottees. Since the allottees had themselves defaulted in payment, the respondent cannot be blamed for delay. He further submitted that in all the 126 cases referred to in the complaint, possession of flats has been given to the allottees on payment of amounts due in terms of Clause 15A of the Apartment Buyers Agreement and, therefore, the present inquiry had become infructuous.
10. In the light of the submissions discussed above, no case of unfair trade practices is made out against the respondent. The complaint petition is, therefore, dismissed and the NOE dated 6.8.1998 is discharged with no order as to costs.