2013 (7) TMI 343 - AT - Companies Law

Unfair trade practice - complainant s case that she had booked a plot of land in a scheme launched by the respondent namely DLF Qutab Enclave, Phase-IV and has paid the agreed price accordingly - liability to pay the interest @20% per annum for belated payment as arose by respondent - Held that - This Commission has no jurisdiction to hand over the possession of plot in question to the complainant; that is the task of the Civil Court. The Hon ble Supreme Court in Ghaziabad Development Authority Versus Ved Prakash Aggarwal 2008 (5) TMI 411 - SUPREME COURT OF INDIA the closest term has restrained to this Commission from assuming the power of the Civil Court. It is also clarified in the paragraph that this Court cannot grant any specific performance. The Commission has already recorded a specific statement made before the Court by the complainant, and quoted herein above, that she was not interested in any compensation, but was insisting upon the possession of the plot. This statement was made before the open Court on 15th July, 2011 before Hon ble Dr. Justice Arijit Pasayat who was the Chairman of this Commission.Therefore, in reality nothing would survive in this complaint, at least in so far as the possession is concerned. If this is not sufficient, in a reported judgment in Saurabh Prakash v. DLF Universal Ltd. 2006 (11) TMI 329 - SUPREME COURT OF INDIA after taking stock of the provisions of this Act and after considering the definition of trade practice in Section 2(u) and restrictive trade practice in Section 2(o) (i) and (ii) and expression service as also the definition of unfair trade practice as defined in 36-A has quoted in paragraphs 34 and 35 stated that the power of the Commission to award compensation, therefore, is restricted to a case where loss or damage had been caused as a result of monopolistic or restrictive or unfair trade practice. It has no jurisdiction where damage is claimed for mere breach of contract. From the bare reading of this, it is clear that the application under Section 12-B would not lie where a complaint is confined to a breach of contract. Considering the entire facts and circumstances of the case direct to the refund of amount, which was agreed by the DLF. However, since the matter remained pending all these years, refund @ 9% interest also confirmed.

Issues Involved:
1. Maintainability of the complaint.
2. Allegations of unfair trade practices by the respondents.
3. Prejudice to the interests of the consumer due to alleged unfair trade practices.
4. Contempt application filed by the complainant.
5. Application for vacation of the injunction by the respondent.
6. Application for revised injunction by the complainant.
7. Application under Section 340 Cr.P.C. by the complainant.

Detailed Analysis:

1. Maintainability of the Complaint:
The Commission framed the issue of whether the complaint was maintainable in light of the preliminary objections raised by the respondents. The complainant had booked a plot in a scheme by the respondent and alleged non-receipt of the allotment letter and unfair trade practices. The Commission did not explicitly rule on the maintainability but proceeded to address the substantive issues, implying the complaint's maintainability.

2. Allegations of Unfair Trade Practices:
The complainant alleged that the respondent engaged in unfair trade practices by canceling her plot booking without proper notice and forfeiting a significant amount of money. The Commission examined the sequence of events, including the payments made by the complainant, the respondent's demand for interest on delayed payments, and the eventual cancellation of the booking. The Commission considered the complainant's contention that the brochure did not mention any forfeiture clause and that the cancellation was an unfair exercise by the respondent.

3. Prejudice to Consumer Interests:
The complainant argued that the respondent's actions were prejudicial to her interests as a consumer. She claimed that the respondent profited by reselling the plot to another buyer. The Commission noted that the complainant had paid more than 50% of the total purchase consideration and was not served any legal notice for the cancellation. However, the Commission also acknowledged that the respondent had created third-party rights before the injunction order, complicating the issue.

4. Contempt Application:
The complainant filed a contempt application, alleging that the respondent transferred the plot despite an injunction order. The Commission found no contempt as the third-party rights were created before the injunction order. The Commission noted that the agreement with the new buyers was made before the injunction and hence, there was no contempt.

5. Application for Vacation of Injunction:
The respondent filed an application to vacate the injunction. The Commission held that the request lacked merit as third-party rights had already been created, rendering the injunction infructuous.

6. Application for Revised Injunction:
The complainant sought a revised injunction, but the Commission concluded that the balance of convenience did not favor issuing a revised injunction. The Commission suggested that if the complainant succeeded in the main complaint, she could be entitled to compensation for loss and mental agony.

7. Application under Section 340 Cr.P.C.:
The complainant filed an application under Section 340 Cr.P.C., alleging forgery and cheating by the respondents and their advocate. The Commission found no basis for these allegations and dismissed the application, stating that the facts did not warrant an inquiry under Section 340 Cr.P.C.

Conclusion:
The Commission referred to the Supreme Court's decision in Ghaziabad Development Authority v. Ved Prakash Aggarwal, which clarified that the Commission lacked jurisdiction to order specific performance, such as handing over possession of the plot. The Commission noted the complainant's statement that she was only interested in obtaining the plot, not monetary compensation. Given the Supreme Court's guidance, the Commission concluded that it could not grant the complainant's request for possession. However, the Commission ordered the respondent to refund the amount of Rs. 3,34,695/- with interest at 9% per annum, acknowledging the respondent's earlier offer to refund the amount. The Commission emphasized that it could not grant mesne profits or specific performance, adhering to the Supreme Court's precedent.

Final Order:
The Commission ordered the respondent to refund the amount of Rs. 3,34,695/- with interest at 9% per annum from the date of the respondent's offer to refund the amount. The complainant's other requests, including possession of the plot and mesne profits, were denied based on the Supreme Court's rulings and the Commission's lack of jurisdiction to grant specific performance.

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