17 December 2004
Supreme Court
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RADHIKA KAPUR Vs M/S. D.L.F. UNIVERSAL LTD.

Case number: C.A. No.-007785-007785 / 2002
Diary number: 21585 / 2000
Advocates: Vs RAJAN NARAIN


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CASE NO.: Appeal (civil)  7785 of 2002

PETITIONER: RADHIKA KAPUR & ORS.

RESPONDENT: M/S D.L.F. UNIVERSAL LTD.

DATE OF JUDGMENT: 17/12/2004

BENCH: P.VENKATARAMA REDDI & A.K. MATHUR

JUDGMENT: JUDGMENT

INTERLOCUTARY APPLICATION NO.5/2004

P. VENKATARAMA REDDI, J.

This appeal by special leave is preferred against the  order dated 4.9.2000 in U.T.P.E. No. 206 of 1998 passed by  the MRTP Commission by which the interim relief sought for  by the appellants was rejected with certain observations. In the application/complaint filed under Section 36A of  the Monopolies and Restrictive Trade Practices Act (for short  ’Act’), the main relief sought for was to restrain the  respondent from cancelling the allotment of the apartments  in D.L.F. Beverly Park, Gurgaon for non payment of the  extra amount demanded from the appellants by the letter  dated 2.6.1997 etc. The immediate provocation for filing the  complaint seems to be the letter issued by the respondent- Company on 18.9.1998 calling upon the appellants to pay  the escalated charges by 10th October, 1998 failing which,  the respondent threatened to cancel the allotment without  further notice. One of the other reliefs sought for was to  direct the respondent to handover possession of the  apartment forthwith. The last prayer was to inquire into the  unfair trade practices adopted by the respondent and to  direct the respondent to desist from such action in future.   Initially the appellants filed a miscellaneous application  under Section 12A of the Act seeking stay of demand of  extra charges and to restrain the respondent from cancelling  the allotment of the apartments for non-payment of the  extra amount demanded. This application was rejected on  23.4.1999. The Commission observed that the propriety or  otherwise of demanding extra charges will have to be  decided in the main enquiry and that there was no prima  facie ground to grant interim relief, especially, having regard  to the fact that the applicants were protected against  cancellation of allotment by virtue of the undertaking given  by the respondent in this behalf. Another miscellaneous application was filed sometime  later purportedly under Section 12A of the Act to handover  the possession of the flat. It was contended therein that in  spite of depositing an extra amount over and above the  instalment payable as per the agreement, the respondent  had refused to handover the possession. This application  having been rejected by the impugned order, the SLP was  filed. Though Section 55 of the Act provides for an appeal to  this Court against an order made by the Commission under  Section 12A on one of the grounds specified in Section 100

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CPC, the appellants, for reasons undisclosed, have chosen to  by-pass that remedy and invoked the jurisdiction of this  Court under Article 136 of the Constitution. The Commission observed that the case was ripe for  final disposal and no immediate irreparable loss will be  caused if the interim relief prayed for was not granted,  especially having regard to the fact that the interests of the  applicants was sufficiently protected by the earlier order by  placing a restraint on the cancellation of allotment. The  Tribunal referred to the interim order of this Court in certain  other matters concerning some other parties who filed  similar complaints before the Commission. That order was  passed in C.A. No. 6502-6520 of 1998. In that case, while  issuing notice, interim order was passed by this Court that  the possession shall be handed over pursuant to the  clarificatory order passed by the Commission on payment of  75% of the extra charges demanded and the remaining  25% to be deposited with the Registry of the Court.  Subsequently, the said appeals were disposed of by passing  an order based on the consent of the parties that the  respondent herein (appellant in C.A.No. 6502-6520 of 1998)  could withdraw the amounts deposited without prejudice to  the respective contentions urged before the Commission. A  perusal of the impugned order dated 4.9.2000 discloses that  the appellants were not prepared to conform to the  conditions imposed in the interim order of this Court in the  civil appeals referred to supra on the ground that the said  case was distinguishable. However, the Commission found,  prima facie, that there was no distinguishing feature.  After the miscellaneous application was disposed of,  considerable progress was made in regard to the enquiry  and some witnesses were also examined. On 22.11.2002,  this Court granted leave and the original record has been  requisitioned. Therefore, the further enquiry has not  concluded. While so, the appellants filed I.A.No. 4 of 2003 in  the first instance seeking an interim order to direct the  respondent to handover the possession of flats on the  appellants furnishing adequate security for the balance  amount. This I.A. was rejected by this Court by an order  dated 2.12.2003. Thereafter, the appellants have made  another endeavour to get possession of the flats by filing  the present application i.e. I.A. No. 5 of 2004. The relief  sought for is to direct the respondent to give the possession  of the respective apartments as per agreement and to stay  the escalation charges and interest on the delayed payment  as demanded by the respondent. As the point arising in  I.A.5 and the main appeal is practically the same, they are  being disposed of by this order. The latest position regarding the amounts payable as  per the respondent’s demand is given at Page 68 of  I.A.No.5. There are six items in the tabular statement as  shown below: 1 Dues towards basic sale price 2 Dues towards extra charges 3 Delayed interest on basic sale price 4 Delayed Interest on extra charges 5 Stamp duty and registration charges 6 Maintenance charges

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According to the above statement, roughly Rs.27 lakhs is  payable by each of the appellants. The learned counsel for  the appellant submits that apart from the sums at items 1 &  5 which are admitted, the appellant is prepared to pay the  extra charges (item 2) of Rs.8,78,905/- (in one case it is  Rs.8,51,116/-) ’without prejudice’ and that it is just and  proper to direct the delivery of possession subject to the  final outcome of the enquiry. The learned counsel for the  appellant mainly assailed the propriety of demanding the  interest on extra charges, that too at a high rate, when the  extra charges themselves is the subject-matter of dispute.  He also demurred to the demand of maintenance charges,  even without delivery of flat. We put it to the respondent’s  counsel that the respondent may receive the amounts due  towards items 2 & 3 subject to the deposit of amount  payable under the item No.4 i.e. delayed interest on extra  charges with the Commission and then deliver possession,  without prejudice to the respective contentions. The learned  senior counsel for the respondent has however not agreed  for this course and he wants the full payment to the last  paisa before possession is handed over. The learned counsel  for the respondent submits that the Commission had no  jurisdiction to direct possession to be delivered by way of  temporary injunction under Section 12A and the  Commission has rightly declined such relief. The course of enquiry has been virtually stalled by the  appellants by making persistent efforts to get interim relief  in some form or the other.  Without going into the larger  question whether the Commission could straightaway   pass  an order under S.12-A directing possession to be handed  over on the payment of balance sale price, we are not  inclined to interfere with the impugned order of the  Commission.  In declining to grant the relief of possession  by way of interim measure, the Commission cannot be said  to have committed a jurisdictional error or patent illegality.   There is no perversity, nor irrelevant reasoning which makes  the impugned order vulnerable to attack.  No irreparable  damage is caused to the appellants by declining the  mandatory injunction to put the appellant in possession  even before the enquiry is concluded, as rightly held by the  Commission.  Moreover, it is pertinent to note that no offer  was made before the Commission nor in the SLP filed in this  Court for payment of extra charges, ’without prejudice’.  Above all, I.A. No.4 seeking substantially the same relief  was dismissed by this Court.  Viewed from any angle, we do  not find any valid ground to disturb the impugned order of  the Commission in exercise of the jurisdiction under Art.  136, though we do feel that the respondent has exhibited  somewhat unreasonable attitude in spurning the offer made  in the course of hearing.  I.A. No.5 as well as CA No. 7785/2002 are therefore  dismissed.  No costs. The enquiry by the MRTP Commission shall be  proceeded with expeditiously. The Registry shall send back  the records to the Commission immediately.