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TMI Blog2013 (7) TMI 343X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the complainant duly tendered two cheques for Rs.54,636/- and Rs.62,887/- drawn on Corporation Bank. However, these cheques were returned to the complainant and it was informed by the letter dated 5.1.1994 that her booking was cancelled and there was forfeiture of a sum of Rs.1,55,105/-. On this, the complainant filed her protest vide letter dated 7.2.1994 and complained that the action on the part of the respondent constituted deficiency in service and was also unfair trade practice. She also requested for withdrawal of letter dated 5.1.1994 and sought the detailed calculations to enable her to make further payments and get possession of aforementioned plot No. 1225. She sent two reminders, after which the opposite party reiterated the position vide letter dated 2.4.1994 and pointed out that the notice of cancellation of her allotment were returned by the postal authorities with the remarks "undelivered". In this communication dated 2.4.1994 the respondent emphasized that no further correspondence would be entertained by them in this behalf. She, therefore, sent a legal Notice dated 12.4.1994 and repudiated the stand of the respondent and pointed out that the letter dated 2.4.1994 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereafter, much time was lost in exchange of the pleadings. DLF seems to have filed replies to the main complaint as well as to the application of injunction filed under Section 12A of the Act. In the meantime, the complainant also filed a contempt application. Three matters then came to be decided by this Commission. They were :- (i) The Contempt Application filed by the complainant; (ii) An application for vacation of the injunction, which was filed by the respondent; and (ii) An application for revised injunction filed by the complainant. As far as the Contempt application is concerned, the Commission held that there was no contempt committed by the respondent. In that Contempt Application, the complainant had complained that though there was an injunction order passed on 18.8.1994, yet the plot itself was transferred to one Mrs. Kamlesh Bali and Mr. Manish Bali on 23.9.1993. The Commission noted that in fact the agreement was already entered into by the respondent with these two vendees on 23.9.1993 and also a sum of Rs. 2 lakhs was collected on 20.7.1993. Thus, the third party right was created on 23rd September, 1993 itself well before the order of injunction passed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R-2 and R-3 also appeared and filed their Vakalatnama in addition to R-1. The issues came to be framed. They were :- 1. Whether the complaint is maintainable in view of the preliminary objection taken by the respondents? 2. Whether the respondents have been indulging in unfair trade practices as alleged in the Notice of Enquiry? 3. Whether the alleged unfair trade practices are prejudicial to the interest of the consumer/consumers generally? 7. In the meantime, R-2 and R-3 also filed an application for vacating the injunction. That application was disposed of vide an order dated 7.5.1999. In the order dated 7.5.1999 all the earlier orders were taken note of which were dated 18.8.1994, 7.12.1995 and 6.6.1996 and the Commission holds that there were no grounds for vacating or modifying the injunction order/orders which were already passed. The case thereafter dragged on as the complainant thereafter filed an application under Section 13(2) read with Section 151 CPC seeking review/modification of the order dated 25.9.1998. That application was disposed of by an order dated 23.11.2000 and the application filed under Section 13(2) by the complainant for reviewing the earlier or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication in terms of Section 340 Cr. P.C. which are pending is to be decided first. We have also dealt with UTPE 117/1996. She does not want to argue until any change is made in the aforesaid order. Order is reserved." 10. Thereafter the matter came to be posted from day to day and was adjourned on some or the other ground. The matter then finally came before the Tribunal on 11.9.2012 when the complainant sought time to file the written arguments. It is on the basis of the written arguments the matter is now being decided. 11. As has been stated earlier in this judgment, there was an application made under Section 340 of the Cr. P.C. This application seems to have been filed on 19.01.2009 and 01.04.2010, at least that is the claim of the applicant. The prayer is in the following terms :- "In view of the aforesaid, it is respectfully prayed that the Hon'ble Commission be pleased to reject the application filed under Section 12A-II of the MRTP Act, 1969 for vacation of interim orders passed by this Hon'ble Commission dt. 18.8.1994 on behalf of Resp. 2+3 by the Advocate Sh. Ajay Goel against the law, without Power of Attorney and Vakalatnama with heavy cost on Resp.2+3, also Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 3 including respondent No.1 with poor complainant". The whole application then speaks about advocate Ajay Goel and the accused Nos.11 and 12. It is not known as to who these accused are, probably they are named as accused in the aforementioned FIR 205/97. The contention appears to be that the said advocate Ajay Goel by filing an application under Section12A-II of the MRTP Act for vacating the interim orders with forged signatures of only one accused No.11 namely Mrs. Kamlesh Bali, that too when he was not having any Vakalatnama, suggests the element of forgery, cheating and misappropriation of property and deep rooted conspiracy against the complainant. There it is pointed out that this application was filed by Shri V.K. Aggarwal, advocate and is also without Vakalatnama or Power of Attorney on behalf of Mrs. Kamlesh Bali and Mahesh Bali. Then there is a reference to the rejection of that application. We have also referred to those facts in the earlier part of the judgment. In paragraph-2, a reference is made to another application on behalf of the accused Nos.11 and 12. It was an application for recalling ex-parte order. Then there is reference made to the order of the Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se particular cases. Both the applications hopelessly fall short of spelling out any offence which is purported to have committed in relation to the proceeding in the Court. It is also not that any offence has been committed much less under Section 195 to 196, 199 to 200, 205 to 211 and 228 of the Indian Penal Code (IPC). Similarly, there is absolutely no allegation regarding any offence under Section 463, 471, 475 or 476 of the Indian Penal Code. There is also no basis to hold that there was any criminal conspiracy to commit or attempt to commit, or the abetment of any offence in sub-clause (i) or sub-clause (ii) of Section 195 of (1) (b). Under the circumstances, we hold that the application under Section 340 Cr.P.C. was wholly irrelevant and we proceed to dismiss the application. 15. This takes us to the main issue regarding the UTPE or as the case may be RTPE enquiry. Before we advance to that issue, we must refer to the decision of Hon'ble Supreme Court in Ghaziabad Development Authority v. Ved Prakash Aggarwal [2009] 91 SCL 281 (SC). We need to refer only to paragraph-7 of this judgment, which reads as under:- "7. Having decided issue No. 1 in the manner indicated above, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'service' as also the definition of 'unfair trade practice' as defined in 36-A has quoted in paragraphs 34 and 35 as under :- "34. The power of the Commission to award compensation, therefore, is restricted to a case where loss or damage had been caused as a result of monopolistic or restrictive or unfair trade practice. It has no jurisdiction where damage is claimed for mere breach of contract. 35. It was not a case where a notice of inquiry had been directed. If there had been no inquiry, the petitioner has to file a suit wherein the relevant particulars are required to be stated as to how loss or damage occurred owing to one or the other trade practices referred to therein. The power of the Commission is not in addition to the power of the civil court. An application under Section 12B of the Act would not lie where a complaint is confined to a breach of contract. Purchases on the part of Respondent must necessarily relate to one or the other trade practices contemplated under Sub-section (1) of Section 12B of the Act." 19. From the bare reading of this, it is clear that the application under Section 12-B would not lie where a complaint is confined to a breach of contract. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in Clause 2 (b) and Clause 4. 13. Considering the entire facts and circumstances of the case, we are of the considered opinion that the interest of justice would be subserved if we, in exercise of our discretionary jurisdiction under Article 142 of the Constitution of India, direct that 50% of the amount which was forfeited be refunded by the appellant to the respondent within three months from the date of this Judgment and the balance 50% would be considered as forfeited in terms of the provisions of the agreement. However, if the appellant fails to pay the said amount within the stipulated period the same will carry an interest @ 8% p.a. which will be calculated from the date when the abovementioned period expires till the date of payment. 14. We also make it clear that this order is passed in the peculiar facts and circumstances of this case and would not be considered as precedence in any other matter" 21. On this basis, the complainant seems to be urging that we should follow the same suit. That is not possible for us, for the simple reason that Hon'ble Supreme Court has clarified specifically that the order for payment of 50% of the forfeited amount, which was forfeit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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