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TMI Blog2022 (1) TMI 1343X X X X Extracts X X X X X X X X Extracts X X X X ..... that the developer was held liable for unfair trade practice, and directed to pay compensation (in terms of the previous orders of the COMPAT) affirmed by this court, i.e., 15% compound interest on ₹ 4,53,750/-. The impugned order has not rested its findings on any principle of law, much less any statutory provision. The Tribunal appears to have been completely swayed by the complainant's plight. In doing so, it did not give due consideration to the fact that ₹ 4,53,750/- was debited from the account of the developer. The complainant, for reasons best known to her, filed the original Pay Order due to perhaps lack of proper advice or instruction. Apparently, no order contemporaneously was sought from the MRTP Commission, which would have protected the interests of the complainant with respect to the money received even while ensuring that her contentions on the merits with respect to entitlement towards the flat were preserved. Many avenues / alternatives were available. The provisions of Order XXI are applicable to decrees of civil court. However, they embody a sound policy principle, that if the amount is deposited, or paid to the decree holder or person ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (hereinafter, developer ). 2. In 1989, one Smt. Gursharan Kaur had applied for a flat in a proposed group housing scheme called Siddharth Shila Apartments , situated at Plot No. 24 in Vaishali Scheme, Ghaziabad, U.P. (hereinafter, Scheme ). After depositing three instalments towards the flat, she passed away, and was succeeded by her daughter-in-law Dr (Mrs.) Manjeet Kaur Monga, who deposited the fourth instalment. Thereafter, the developer issued an allotment letter dated 21.05.1992, earmarking Flat No. D-301 (3rd floor) with a super built-up area of 1375 sq. ft. in the Scheme. Dr Manjeet Kaur Monga deposited two further instalments, with the sixth instalment deposited in September 1993. Eight years later, i.e., in December 2001, a demand notice for payment of the eighth and ninth instalments was issued to the complainant. She resisted this notice, as there was no intimation about the progress of work and delivery of possession of flat to her. The developer however, issued a letter thereafter, cancelling the allotment of the complainant s flat on 30th April 2005. The complainant had deposited seven instalments up to 4th October 1993 totalling ₹ 4,53,750/-. With the can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etter and that she had, in terms of her letter dated 22nd May 2002, shown disinclination to take possession of the flat by alleging breach of confidence on the part of the developer. The Notice of Enquiry issued by the Commission was resisted on similar grounds. 5. Issues were framed for adjudication, which included whether the developer had indulged in unfair trade practice, whether they were prejudicial to the interest of the complainant and / or the public in general. The MRTP Act was repealed by Section 66 of the Competition Act, 2002 which was brought into force w.e.f. 1st September 2009. Chapter VIII-A introduced subsequently provided for establishment of an Appellate Tribunal to hear appeals against orders passed by the Competition Commission of India. The matters pending before MRTP Commission were transferred to the (then) Competition Appellate Tribunal (hereinafter, COMPAT ). By order dated 29th July 2011, COMPAT framed issues in the application filed under Section 12B of the MRTP Act. The issues related to maintainability of the petition; whether unfair trade practice had been proved; and if so, were they prejudicial to the public; and also, if the complainant was en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Order from Citibank on 30th April 2005, the amount of ₹ 4,53,750/- covered by that instrument had been deducted from its current account. It was not however received by the complainant payee. The account holder / developer cancelled the Pay Order and requested for re-credit of the amount; which was done by Citibank on 22nd June 2016. The court also noted the contention of Citibank that the money deducted from current account of the developer in April 2005, though not paid to the payee, was not enjoyed by the bank as the Pay Order could have been presented at any moment. This court observed that both these issues had not been considered by COMPAT, apparently because these aspects were not addressed and Citibank was not a party before the Tribunal. The court therefore disposed of the appeals by remitting the matter to COMPAT with directions to implead Citibank as an additional respondent. Additionally, the developer was directed to pay the compensation worked at 15% compound interest up to 30th April 2005. The last issue which COMPAT was to consider on remand was whether there should be any compensation and if so, what should be the amount payable after 30th April 2005 and whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eveloper until 7th May 2016, the interest on the said principal amount ought to run from 4th October 1993 till the date of realization of the amount i.e. 7th May 2016. 11. It was argued that once the Tribunal found that the developer was in the wrong a determination that was upheld by this court, which held that the complainant was entitled to compensation, by way of compound interest that direction had to be taken to its logical end, which meant that interest on the sum of ₹ 4,53,750/- was also payable from the date it was deposited with the developer (in 1993) till the amount was realized. This was the only restitutionary and equitable order, having regard to all circumstances of the case. 12. It was submitted that the developer s argument that the amount had been deducted from its account, and that it was not aware about the filing of the original Pay Order, could not be countenanced. Learned counsel highlighted, that moreover, the developer took full advantage of the amounts deposited by the complainant, and after cancelling the allotment, had immediately allotted the flat to another purchaser, for a considerably higher sum of ₹ 21 lakhs. This fact was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e such that the amount was with the developer, or lying in its account. However, once the amount was debited from its account, and the Pay Order was made over to the complainant, who sought to return, it, but after that, was handed back the Pay Order, the developer could not be held responsible. 17. Counsel for the developer relied on Order XXI Rule 1(4) and (5) of the Code of Civil Procedure, 1908 (hereinafter, CPC ) to state that once the amount in question was paid through the bank (i.e., through an instrument issued by the bank, such as Demand Draft or Pay Order, as opposed to a cheque, drawn on a bank ) the liability would cease. Counsel for the developer relied on the decisions in Hindustan Paper Corporation Ltd vs. Ananta Bhattacharjee Hindustan Paper Corporation Ltd vs. Ananta Bhattacharjee, (2004) 6 SCC 213, dated 28th April 2004 and in Gurpreet Singh vs. Union of India Gurpreet Singh vs. Union of India, 2006 (8) SCC 457, dated 19th October 2006 . Analysis and Conclusion 18. For deciding this appeal, it is unnecessary to recount the entire spectrum of facts and analyse the rival contentions, so far as they relate to the liability of the developer fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the rationale for the limited scope of the remand. 20. The materials on record would disclose that in this case, after issuing notice, the complainant returned the Pay Order received by her under cover of letter dated 7th September 2005, however, the developer (in response to the complainant s notice), by letter dated 26th September 2005, denied the allegations contained in the notice and also returned the Pay Order for ₹ 4,53,750/- and the banker s cheque for ₹ 1 lakh. It is also evident that on 7th October 2005, the complaint was filed. A copy of the complaint is on record. Curiously, it contains no mention of the Pay Order, nor does it say that the complainant filed the Pay Order in original along with the pleading. This is an undeniable fact. Even the counter affidavit filed by the complainant in the developer's appeal states that she: Bonafidely also deposited the Pay Orders dated 30-04-2005 in the registry along with the complaint under protest in court. 21. Since the pleadings in the complaint did not refer to the Pay Order, which was attached in the original along with the complaint, the developer s reply too was silent on this aspect. This is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he amount of Rs.4,53,750/- covered by the pay order had actually been deducted from their current account. But at the same time, the amount had not been paid/received by the payee. In the instant case, the account bolder cancelled the pay order and requested for re-credit of the amount and, accordingly, it is seen that the Citibank has re-credited the amount to the account only on 22.06.2016. It is the contention of the account holder company that for the period the money was with the Bank, the account holder is entitled to interest and that can be the compensation if at all that can be paid to the appellant in Civil Appeal Nos.5032-33/2016 for the period after the cancellation of the allotment. We may, of course, take note of the submission of the builder that in terms of the principles of restitution under Section 144 C.P.C. and on the general principle of restitution, the builder cannot be put to unmerited injustice and the appellant should not take the undue advantage as held by this Court in Citibank N.A. v. Hiten P. Dalal and Others, (2016) 1 SCC 411, as canvassed by the learned counsel appearing for the builder. 7. Learned counsel appearing for Citibank, inviting our re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the flat. Nevertheless, it was necessary for her to apply through counsel for an appropriate order to ensure that the amount was deposited in an interest-bearing account. That step unfortunately was not taken perhaps she was not advised to do so. It was only when for the first time when this was highlighted in the previous proceedings on 29th April 2016, that the developer sought and obtained permission to apply to the COMPAT for revalidation. The order facilitating that step was made on 18th May 2016, and eventually the Pay Order was revalidated on 22nd June 2016. 27. From the impugned order, it is evident that the Tribunal accepted the explanation of Citibank that since the Pay Order in question had become stale, its proceeds / funds were moved to its Unclaimed Sundry Account , and did not attract any interest in terms of the RBI directions. The bank had also deposed that the Pay Order was cancelled on the request of the developer through its letter dated 26th May 2016 and that the funds were credited back to the account of the developer on 16th June 2016. It was further noticed that the amount for issuing the Pay Order was deducted from the current account of the devel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I Execution of Decrees and Orders Payment under Decree Modes of paying money under decree.- (1) All money, payable under a decree shall be paid as follows, namely:- (a) by deposit into the court whose duty it is to execute the decree, or sent to that Court by postal money order or through a bank; or (b) out of Court, to the decree-holder by postal money order or through a bank or by any other mode wherein payment is evidenced in writing; or (c) otherwise, as the Court which made the decree, directs. (2) Where any payments is made under clause (a) or clause (c) of sub-rule (1), the judgment-debtor shall give notice thereof to the decree-holder either through the Court or directly to him by registered post, acknowledgment due. (3) Where money is paid by postal money order or through a bank under clause (a) or clause (b) of sub-rule (1), the money order or payment through bank, as the case may be, shall accurately state the following particulars, namely:- (a) the number of the original suit; (b) the names of the parties or where there are more than two plaintiffs or more than two defendants, as the case may be, the names of the firs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e holder either by approaching the executing court under Order XXI Rule 2 of the Code or by making the deposit in the execution taken out by the decree-holder under Order XXI Rule 1 of the Code. The decree holder is not satisfied with the decree of the trial court. He goes up in appeal and the appellate court enhances the decree amount to Rs. 10,000/- with interest and costs. The rule in terms of Order XXI Rule 1, as it now stands, in the background of Order XXIV would clearly be, that the further obligation of the judgment debtor is only to deposit the additional amount of Rs. 5,000/- decreed by the appellate court with interest thereon from the date the interest is held due and the costs of the appeal. The decree holder would not be entitled to say that he can get further interest even on the sum of Rs. 5,000/- decreed by the trial court and deposited by the judgment debtor even before the enhancement of the amount by the appellate court or that he can re-open the transaction and make a re-appropriation of interest first on Rs. 10,000/-, costs and then the principal and claim interest on the whole of the balance sum again. Certainly, at both stages, if there is short-fall in depo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... different modes, including tendering a Banker s Cheque, or Pay Order or Demand Draft, all of which require the account holder / debtor to pay the bank, which would then issue the instrument) the tender, or payment is complete. 32. In the present case, the complainant was aware that the Pay Order had been tendered by the developer to her; nevertheless she filed the original Pay Order with her complaint, and did not seek any order from the MRTP Commission at the relevant time. The pleadings in the complaint did not disclose that the Pay Order was filed in the Commission, to enable the developer to respond appropriately. In these circumstances, the developer s argument that the rule embodied in Order XXI, Rule 4 CPC, is applicable, is merited. The developer cannot be fastened with any legal liability to pay interest on the sum of ₹ 4,53,750/- after 30th April 2005. 33. This court is also of the opinion that the complainant s argument that on account of the omission of the developer, she was wronged, and was thus entitled to receive interest, cannot prevail. The records nowhere disclose any fault on the part of the developer; on the other hand, the complainant did not ta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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