Sudha Gupta vs Dlf Ltd

NON­REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 9646 OF 2013

Sudha Gupta .…Appellant

Versus

DLF Ltd. …..Respondent

JUDGMENT

Sanjiv Khanna, J.

1. Appellant Sudha Gupta, who appears in­person in the

present appeal under Section 53T of the Competition Act,

2002 read with Section 55 of the repealed Monopolies and

Restrictive Trade Practices Act, 1969 impugns order dated

8th March, 2013 passed by the Competition Appellate

Tribunal (“Appellate Tribunal” for short) in Unfair Trade

Practices Enquiry No. 117 of 1996.

2 M/s DLF Universal Ltd., sometimes also described as

M/s DLF Ltd., is the first respondent and has contested the Signature Not Verified Digitally signed by

appeal. Kamlesh Bali and Manish Bali who were 2 nd and 3rd DEEPAK GUGLANI Date: 2019.03.07 14:29:30 IST Reason:

respondents before the Appellate Tribunal and in this

CA No.9646 of 2013 2

appeal as originally filed, were later deleted from the array of

parties on an application filed by the appellant which was

allowed vide the order in chamber on 8th March, 2016.

3. By the impugned order dated 8th March, 2013, the

Appellate Tribunal has directed the first respondent to

refund Rs.3,34,695/­ (Rupees three lakhs thirty­four

thousand six hundred ninety­five) along with interest @ 9%

per annum, inter alia, accepting the plea of the first

respondent that they were entitled to forfeit Rs.1,55,105/­

(Rupees one lakh fifty­ five thousand one hundred five) from

Rs.4,89,800/­ (Rupees four lakhs eighty­nine thousand

eight hundred) paid by the appellant towards the price of

the plot.

4. The appellant is aggrieved as the Appellate Tribunal

has rejected her prayers for (a) possession and registration

of the sale deed of Plot No.1225, DLF Qutab Enclave, Phase

IV, Gurgaon (“the plot” for short) on the payment of balance

sale price and (b) compensation of Rs.1,00,000/­ (Rupees

one lakh) for pecuniary loss and immense mental agony

suffered by her.

CA No.9646 of 2013 3

5. Prayer in the nature of specific performance was

rejected by the Appellate Tribunal relying upon the

judgment of this Court in Ghaziabad Development

Authority vs. Ved Prakash Aggarwal (2008) 7 SCC 686.

In terms of this decision, prayer for specific performance,

i.e. possession and registration of the sale deed cannot be

granted under the repealed Monopolies and Restrictive

Trade Practices Act, with the Appellate Tribunal assuming

the powers of a civil court.

6. We would now discuss the facts of the present case in

brief. The appellant had paid Rs.1,00,800/­ (Rupees one

lakh eight hundred) with the application for allotment of the

plot on 3rd October, 1991 to the first respondent.

Subsequently, the Plot Buyer’s Agreement dated 7th

January, 1992 was executed for the plot admeasuring

298.98 sq. meters at the rate of Rs.2093/­ per sq. meter.

As per the agreement, the appellant was also liable to pay

External Development Charges of Rs.46,464/­ (Rupees

forty­six thousand four hundred sixty­four) at the rate of

Rs.155.40 per sq. meter., Rs.71,516/­ (Rupees seventy­one

thousand five hundred sixteen) towards Preferential CA No.9646 of 2013 4

Location Charges, Contingency Deposit of Rs.7,176/­

(Rupees seven thousand one hundred seventy­six), Interest

Free Refundable Service & Maintenance Security of

Rs.18,000/­ (Rupees eighteen thousand) in addition to the

interest of Rs.14,195/­ (Rupees fourteen thousand one­

hundred ninety­five) under the two years and six months

instalment plan opted by her. The total amount, therefore,

payable by the appellant was Rs.8,83,916.14/­ (Rupees

eight lakhs eighty­three thousand nine hundred sixteen and

fourteen paisa).

7. As per the appellant, the total amount payable was

Rs.8,11,600/­ (Rupees eight lakhs eleven­thousand six

hundred). The appellant had disputed the liability to pay

Rs.71,516/­ (Rupees seventy­one thousand five hundred

sixteen) on account of Preferential Location Charges, though

the mandate to make this payment was specified in the Plot

Buyer’s Agreement.

8. Appellant had paid Rs.4,89,800/­ (Rupees four lakhs

eighty­nine thousand eight hundred) in all, with first

payment of Rs.1,00,800/­ (Rupees one lakh eight hundred)

on 3rd December, 1991 when she had made an application

CA No.9646 of 2013 5

for allotment of plot. The balance payment of Rs.3,89,000/­

(Rupees three lakhs eighty­nine thousand) was as per the

following details:

Sr.No. Date Amount 1. 3/12/1991 1,20,000 2. 13/1/1992 60,000 3. 22/2/1992 52,000 4. 3/4/1992 82,000 5. 4/9/1992 75,000 TOTAL 3,89,000

Subsequently, the appellant had defaulted in making

payment of the instalments. The defaults were accepted by

the appellant in her communications dated 17th August,

1992, 27th August, 1992 and 21st December, 1992. Even

her letter dated 14th January, 1993 accepts defaults in

payment. The allotment was cancelled by the first

respondent vide its letter dated 25 th August, 1992 which

cancellation was recalled and the allotment was restored on

payment of Rs.75,000/­ (Rupees seventy­five thousand) by

the first respondent on 4 th September, 1992 by way of a

bank draft. The appellant, thereafter, had sent a cheque

dated 15th January, 1993 for Rs.66,279/­ (Rupees sixty­six

thousand two­hundred seventy­ nine), which cheque on

representation had bounced. The appellant had vide her CA No.9646 of 2013 6

letter dated 14th January, 1993 taken a false plea that the

plot had not been demarcated and the cheque of

Rs.66,279/­ (Rupees sixty­six thousand two­hundred

seventy­nine) should not be presented. Notwithstanding the

defaults, the first respondent vide its letter dated 18 th

January 1993 as a special case had extended the time of

payment upto 30th January, 1993 subject to payment of

interest. This letter is elaborate and negates the assertions

of the appellant and highlights her defaults. In spite of

indulgence shown, the appellant had defaulted and did not

pay the overdue amounts.

9. The first respondent had by the letter dated 2 nd June

1993 cancelled the allotment. The letter had also stated

that the amount due and payable by the appellant including

interest in January 1993 was Rs.1,28,796/­ (Rupees one

lakh twenty­eight thousand seven­hundred ninety­six). The

letter had enclosed refund cheque of Rs.3,34,695/­ (Rupees

three lakhs thirty­four thousand six­hundred ninety­five)

after deducting ‘earnest money’ of Rs.1,55,105/­ (Rupees

one lakh fifty­five thousand one­hundred five) which was

forfeited in terms of Clause 10 of the agreement. The

CA No.9646 of 2013 7

aforesaid letter with the cheque addressed to the appellant

was received back unserved with the remark ‘unclaimed’.

The first respondent had, thereafter, sent the said letter

without the cheque, under certificate of posting on 24 th

June, 1993. Another letter dated 29 th June, 1993 along

with the cheque sent as Registered A.D. post was also

received back with the remark ‘unclaimed’. Yet another

letter under certificate of posting was issued by the first

respondent on 19th July, 1993 informing that the refund

cheque issued to her had returned back and the same could

be collected from the office of the first respondent. The first

respondent has placed on record these and other

communications which were sent under the registered post

as well as certificate of posting and vide telegrams on

different dates between 2nd June, 1993 till 2nd April, 1994.

10. The appellant had thereupon on 3rd January, 1994

written a letter to the first respondent enclosing therewith a

cheque of Rs.54,636/­ (Rupees fifty­four thousand six­

hundred thirty­six) to which response was sent by the first

respondent on 5th January, 1994 stating that the allotment

had already been cancelled due to non­payment of the

CA No.9646 of 2013 8

outstanding amount and the earnest money had been

forfeited and the cheque of Rs.54,636/­ (Rupees fifty­four

thousand six­hundred thirty­six) sent by her was returned.

Subsequently, the appellant had prayed for withdrawal of

cancellation of plot and restoration of the allotment. By

letter dated 22nd June, 1994, the first respondent informed

the appellant that they had already transferred the plot to

another customer. Thereupon, the appellant vide her letter

dated 27th June, 1994 conceded to the transfer of the plot

but had protested against forfeiture of Rs.1,55,105/­

(Rupees one lakh fifty­five thousand one­hundred five) and

had demanded that the entire payment of Rs.4,89,800/­

(Rupees four lakhs eighty­nine thousand eight hundred)

along with interest should be refunded. The claim for

‘mesne profits’ in case the plot was transferred and re­sold

to another person was also made. This letter by the

appellant indicates that she had withdrawn and given up

her claim for allotment of the plot and had pressed for

refund of the amount deposited with interest and ‘mesne

profits’.

CA No.9646 of 2013 9

11. Pursuant to cancellation of the allotment by the first

respondent vide its letter dated 2nd June, 1993, the first

respondent had entered into an agreement dated 23 rd

September, 1993 to sell the plot to the deleted 2 nd and 3rd

respondents. The appellant had raised an issue and

questioned the genuineness and authenticity of the

application for allotment made by the deleted respondents

pointing out the cuttings and corrections in the application

form. It was highlighted that initially the plot number

mentioned in the application was 1218 and not the plot in

dispute, i.e. plot no.1225 and there were also a number of

corrections and over­writings including the correction at

serial no.8 in the box ‘for office use only’ and that the two

dates i.e. 14.7.1993 and 20.7.1993 stand recorded in the

box. We are not impressed with the argument. Deleted

respondent Nos. 2 and 3 had paid Rs.1,50,000/­ (Rupees

one lakh fifty thousand) and Rs.50,000/­(Rupees fifty

thousand) as booking amount vide bank drafts dated 14 th

July, 1993 and 19th July, 1993. The first respondent had

explained that the deleted 2nd and 3rd respondents had

initially opted for plot no.1218 but had subsequently opted

CA No.9646 of 2013 10

for an ‘Executive Home’ constructed on the plot. This

statement of the first respondent is palpably and ex facie

correct for the change of plot was to the detriment of the

deleted 2nd and 3rd Respondent as the Appellate Tribunal had

passed an interim order thereby staying the creation of any

third­party interest in the plot. In view of the interim order,

inspite of substantial payments by the deleted respondent

Nos. 2 & 3 nearing to 95% of the agreed price of

Rs.17,73,616/­ (Rupees seventeen lakhs seventy­three

thousand six­hundred sixteen), they could not be given

physical possession of the property i.e. the constructed

house. After about 20 years and upon the impugned order

on 8th March, 2013 being passed, the sale/conveyance deed

in their favour was registered on 17th May, 2013. The

appellant has also challenged the sale/conveyance deed on

the ground that the deleted 2nd and 3rd respondents were not

present in India on the date when the document was

registered. The first respondent has submitted that the

deleted respondent Nos. 2 and 3 were non­residents and had

executed the documents in April, 2013 and that the sale

deed was presented for registration by the vendor i.e. the

CA No.9646 of 2013 11

first respondent through its duly authorised representative.

The vendor i.e. the first respondent through its duly

authorised representative and the two witnesses were

present on the date of registration. The deleted 2 nd

respondent had signed the sale/conveyance deed for self

and as attorney of the deleted 3 rd respondent. Photographs

of the deleted 2nd and 3rd respondents were affixed. Even

otherwise the law requires acceptance by the vendee.

Signature of the vendee on the sale/conveyance deed is not

mandatory (see Aloka Bose vs. Parmatma Devi, (2009) 2

SCC 582). Signature of the vendor(s) and witnesses are

admitted by the appellant. Acceptance is apparent. Thus,

the plot stood transferred to the deleted respondent Nos. 2 &

3. Further, 2nd and 3rd respondents who had acquired

ownership of the plot pursuant to sale deed executed by the

first respondent on 17th May, 2013 are not parties to the

present appeal having been deleted from the array of parties.

In this backdrop, we are unable to grant the appellant relief

in the nature of possession and registration of the sale deed

of the plot.

CA No.9646 of 2013 12

12. It would be relevant here to state that after the

impugned order, the appellant had also filed a complaint

under Section 11 and 12 of the Consumer Protection Act,

1986, which complaint was dismissed by Consumer

Disputes Redressal Forum vide its order dated 14 th

September, 2017 for various grounds and reasons including

limitation and the order passed by Appellate Tribunal.

Apparently, the appellant has made criminal complaints

pursuant to which FIRs have been registered all pertaining

to the transaction.

13. To deal with the question of refund of money, interest

and mesne profits and forfeiture of Rs. 1,55,105/­ (Rupees

one lakh fifty­five thousand one hundred five), it would have

been pertinent to peruse the instalment plan/schedule as

agreed between the appellant and the first respondent, which

was supposedly and annexure to the Plot Buyer’s agreement

dated 7th January, 1992. Neither the appellant nor the first

respondent have placed on record the instalment schedule

inspite of the direction given by this Court [Coram: Arun

Mishra and Mohan M. Shantanagoudar, JJ.] vide order dated

24th October, 2017 to the first respondent to place all the

CA No.9646 of 2013 13

documents on record. The appellant states that she does not

have a copy as the same was not furnished to her. This is

disputed by the first respondent, who however should have

placed the details/schedule of payment of instalments as

was directed. We have no hesitation in observing that the

first respondent was anxious to cancel the allotment as the

prices had substantially increased which is apparent from

the agreement between the first respondent and the deleted

2nd and 3rd respondent of over Rs.17,00,000/­ (Rupees

seventeen lakhs). No doubt this figure includes cost of

construction, albeit the first respondent could have produced

better details/breakup or similar plot buyer’s agreements

with third parties to establish the market price of the plot on

the date of cancellation. This evidence and material has been

withheld and adverse inference has accordingly been drawn

by us. Therefore, we would hold that the forfeiture of Rs.

1,55,105/­ (Rupees one lakh fifty­five thousand one hundred

five) by the first respondent was not correct and in

accordance with the law laid down by this Court in Kailash

Nath Associates vs. DDA and Another (2015) 4 SCC 136. CA No.9646 of 2013 14

14. Having examined the above aspects, it is clear to us

that there had been faults and lapses by both sides. On one

hand, the appellant was a persistent defaulter who had failed

to make overdue payments in spite of written

communication(s) for nearly 9 months after the last payment

was made on 4th September, 1992 till the allotment was

cancelled on 2nd June, 1993. Further, Cheque for Rs.

66,279/­ (Rupee sixty­six thousand two­hundred seventy­

nine) issued by her in January, 1993 had bounced. She had

clearly failed to respond to the letters written to her in June,

1993. Per contra, the agreement entered into between the

first respondent and the deleted 2 nd and 3rd respondents in

September 1993 for the same plot with construction over it

was for a substantially higher amount than the amount

which was agreed by the first respondent with the appellant.

Yet the amount of Rs.1,55,105/­ (Rupees one lakh fifty­five

thousand one hundred five) was forfeited. It is beyond doubt

that the first respondent had not suffered any loss or

damage.

15. Moreover, the issues which would arise in the present

case related to unfair trade practices and whether the terms

CA No.9646 of 2013 15

and conditions in the agreement to sell/allotment agreement

were valid and good. These aspects were not gone into and

examined primarily because the appellant did not have

proper legal guidance and assistance.

16. For deciding the rate of interest, we have noticed that

the appellant was liable to pay interest @ 18% per annum on

reducing balance of the price of the plot and External

Development Charges along with each instalment. Further,

interest @ 20% per annum was liable to be paid on the

delayed payments. The first respondent had pointed out to

us that they had sought to refund and repay Rs. 3,34,695/­

(Rupees three lakhs thirty­four thousand six­hundred ninety­

five) along with interest @ 9% after the impugned order was

passed but the appellant had refused to accept the said

payment. As noticed above, the first respondent had also

sent a cheque along with a cancellation letter dated 2nd June,

1993 and had written letters to the appellant to collect it.

However, Rs.1,55,105/­ (Rupee one lakh fifty­five thousand

one hundred five) was forfeited and has remained with the

first respondent for more than 25 years from June, 1993 till

today. Keeping in view the aforesaid facts and

CA No.9646 of 2013 16

circumstances, we deem that it would be just, fair and

appropriate that the first respondent is directed to pay an

amount of Rs. 30 lakhs (Rupees thirty lakhs) to the appellant

within a period of six weeks from today and in case of failure,

pay interest @ 12% per annum from the date of this order till

the payment is made. In order to avoid any controversy, the

said amount would be deposited by the first Respondent in

the Registry of this Court within the time as mentioned above

and the appellant would then be entitled to withdraw the

same.

17. The appeal is accordingly disposed of. All pending

applications are also disposed of. No order as to costs.

……………………..CJI [RANJAN GOGOI]

………………………,J.

[L.NAGESWARA RAO]

………………………,J.

[SANJIV KHANNA] New Delhi;

March 07, 2019

CA No.9646 of 2013