AFFABLE ENTERPRISES vs NEW OKHLA INDUSTRIAL DEVELOPMENT AUTHORITY

THE complainants have filed a complaint petition under Section 10(a)(i) read with Section 36B(a) of the Monopolies and Restrictive Trade Practices Act, 1969 (hereinafter referred to as "the Act") charging the respondent with adoption of and indulgence in unfair and restrictive trade practices. THE complainant No. 1 is a partnership firm in the name and style of "M/s. Affable Enterprises" and has seven partners, who are all signatories to this complaint petition.

THE complainants applied for two commercial plot Nos. F-15 and F-16 measuring 60 sq. mtrs. and 90 sq. mtrs. respectively, in Sector 18, NOIDA in the complex known as "Mansarovar Commercial Centre". According to the brochure, issued by the respondent, the total cost of the plot Nos. F-15 and F-16 was Rs. 11,10,000/- and Rs. 18,31,500/- respectively. With their applications for allotment, the complainants deposited an amount of Rs. 40,000/- being registration fee towards each of these two plots in question. Subsequently, after a lapse of two years, the respondent vide its letter dated 4th September, 1996 informed the complainants that their applications for allotment were rejected and the registration fee deposited by them amounting to Rs. 80,000/- in respect of these two plots, in question, was refunded through Cheque No. 084260 dated 22nd May, 1996 drawn on State Bank of Patiala. It has been further stated that this letter was issued by the respondent when the complainants, vide their letter dated 1st November, 1994, sought permission of the respondent to amalgamate these two plots and use them as a restaurant and also use the terrace for infrastructural facilities such as water storage, solar heaters etc. as well as for seating their guests. It has further been stated that the respondent, vide its letter dated 17th March, 1998 intimated to the complainants that the plot No. F-15 (measuring 60 sq. mtrs.) and plot No. F-16 (measuring 90 sq. mtrs.) in Sector - 18, NOIDA, could be allotted to them @ Rs. 1,16,933/- per sq. mtr., which was the prevailing rate and they were asked to deposit 25% of the total value of the two plots, in question i.e. Rs. 70,15,980/- and Rs. 1,05,23,970/- respectively, and the balance amount in instalments. The grivance of the complainants is that the respondent could not legally recover from them a rate in excess of Rs. 18,500/- per sq. mtr. in respect of plot No. F-15 and Rs. 20,350/- per sq. mtr. in respect of plot No. F-16.

On 15th April, 1998, when this matter came up for consideration before the Commission, the learned Advocate representing the complainants stated that the allegation pertaining to unfair trade practices was not pressed and on the basis of this statement, a Notice of Enquiry (NOE) under Section 10(a)(i) read with Section 37, of the Act charging the respondent with adoption of and indulgence in restrictive trade practices, was issued by the Commission.

IN reply to the NOE, it has been stated by the respondent that the allotment of commercial property, announced in October, 1994, was subject to certain terms and conditions, on the basis of which, applications were invited and one of those conditions was that these plots "will not be utilised for meat/sweetmeat shop/flour mill/auto repair/restaurant, except with the prior permission of the respondent". The case of the respondent is that the application of the complainants dated 1st November, 1994 seeking permission for using these plots as restaurant, was not found to be in accordance with the terms and conditions contained in the brochure and, therefore, the same was rejected and the registration amount of Rs. 80,000/- in respect of both these plots was refunded through Cheque No. 084260 dated 22nd May, 1996 drawn on State Bank of Patiala. On completion of pleadings, the following issues were framed: (i) Whether the respondent has been indulging in restrictive trade practices as alleged in the Notice of Enquiry? (ii) Whether the alleged restrictive trade practices are not prejudicial to the public interest? As regards the evidence, it was stated on behalf of both the parties that no oral evidence will be adduced and both the parties would be relying only on documentary evidence.

WE have heard the learned Advocates representing the parties and have also perused the Court record. The point which arises for determination is whether the allotment of the two plots, in question i.e. Plot Nos. F-15 and F-16 for which, the complainants had been registered earlier and also deposited the registration fee of Rs. 40,000/- each, would be subject to the original price of Rs. 11,10,000/- and Rs. 18,31,500/- respectively, which was indicated at the time of making the application by the appellants or the prevailing rate indicated to the complainants by the respondent vide its letter dated 17th March, 1998. It is not disputed that, when the complainants initially applied for allotment, they had paid the registration fee and had subsequently, sought permission of the respondent for using the plots, in question for a restaurant and the permission was not accorded to them. Our attention has been drawn to condition 15 of the general terms and conditions wherein it is specifically mentioned that the plots in question will not be used for meat/sweet meat/flour mill/auto repair/restaurant. The case of the complainants is that the permission for using the plots in question for restaurant was sought by them and it was open to the respondent to withhold the permission. The letter dated 4th September, 1996 issued by the respondent, in this context, is relevant and germane to the point under consideration. In this letter, the respondent has clearly intimated to the complainants that it was not possible to accept their applications, and accordingly, the registration fee amounting to Rs. 80,000/- deposited by them in respect of the two plots, in question, was refunded through Cheque No. 084260 dated 22nd May, 1996 drawn on State Bank of Patiala. It appears to us that this letter indicates that the allotment of the plots was not made and the registration fee was refunded to the complainants. Subsequently, when an offer was made for allotment at an enhanced rate of Rs. 1,16,933/- per sq. mtr., it would appear to be a fresh allotment and not an allotment on the basis of the original application dated 24th October, 1994. The fact that permission for using the plots, in question, as a restaurant was not accorded to the complainants and the registration fee of Rs. 40,000/- deposited by them in respect of each plot, was refunded to them can''t be lost sight of. In other words, the application for allotment of these two plots stood rejected and the registration fee was also refunded implying thereby that not only allotment of these two plots not made, the application of the complainants was also not under consideration and thus the chapter was closed. It, therefore, follows that subsequent developments leading to allotment of plots are independent of the original application and not in continuation thereof. In that view of the matter, we do not find that the respondent has adopted or indulged in the alleged restrictive trade practices and Issue No. 1 is decided accordingly. In view of our finding on Issue No. 1, there is no need to go into Issue No. 2. In view of the above, the complaint petition filed by the complainants stands dismissed. Accordingly, the NOE dated the 30th April, 1998 stands discharged. There is no order as to costs on the facts and in the circumstances of the case. Complaint Petition dismissed.