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.

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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

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 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

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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

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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-

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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

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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

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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

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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.

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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:

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 “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

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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

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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

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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)”

21
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

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