BEENA MALIK vs Ghaziabad Development Authority

THIS order disposes of the application filed by Smt. Beena Malik, New Delhi under Section 12B of the Monopolies and Restrictive Trade Practices Act, 1969 (for brief the Act), seeking compensation from the Ghaziabad Development Authority, Ghaziabad (GDA) alleging that the latter had indulged in unfair trade practices.

THE brief facts of the case as contained in the compensation application may be recalled as follows : Smt. Beena Malik, the applicant had applied for a Ground Floor Flat under Vijay Nagar, Sector - 9, LIG Housing Scheme November, 1986 of the respondent and deposited the registration amount of Rs. 7,510/- on 17.12.1986. According to the applicant, till the filing of the compensation application in 1986, she had not received any intimation of allotment of the flat nor the refund of the registration amount. Visits to the office of the respondent did not elicit any satisfactory reply. THE applicant has asked for refund of the registration amount with 18% interest as well as compensation for mental agony. The respondent filed a reply to the notice of compensation application. According to it the applicant was unsuccessful in the draw held for allotment of flats and, therefore, was entitled to take back the registration amount from the Vysya Bank. The unsuccessful applicants had to submit the original challan to the Bank to take back the registration amount. The respondent had deposited the registration amount of the applicant of Rs. 7,500/- along with interest of Rs. 313/- with Vysya Bank, Ghaziabad on 19.11.1987. The Bank had in turn also prepared the cheque in the name of the complainant on 17.11.1987. The applicant never produced the challan to the Bank nor approached the Bank and has avoided taking back the registration amount. The respondent has not indulged in any unfair trade practices as alleged. In the reply the respondent also pointed out that the Vysya Bank, Ghaziabad is a necessary party in the present case and the compensation application should be dismissed on the ground of non-joinder of necessary party. After the pleadings were complete, the following issues were framed : (1) Whether the compensation application is not maintainable for the preliminary objections taken by the respondent in its reply ? (2) Whether the respondent has indulged in the unfair trade practices alleged by the applicant in her compensation application ? (3) Whether the applicant has suffered any loss or damages as a consequence of the alleged unfair trade practices ? (4) The amount of compensation to which the applicant is entitled ?

The applicant as well as the respondent filed necessary affidavit and counter affidavit of evidence. I gave a hearing to Shri J.M. Malik, husband and power of attorney holder in respect of the applicant as well as Mr. Rakesh Upadhyay, Advocate for the respondent. I have carefully gone through the records of the case evaluated the evidences adduced and have duly considered the arguments advanced by both parties.

THE Advocate for the respondent argued that as per the general practice all the applicants for allotment of a house in the scheme who were unsuccessful had to collect their deposited registration amount along with 5% per annum interest from the Bank, viz., in this case Vysya Bank, Ghaziabad. All other unsuccessful applicants had already collected their respective refunds from the Bank producing their original challan. THE respondent has filed evidence to show that an amount of Rs. 7,500/- being the registration amount along with interest of Rs. 313/- due to the applicant was deposited with the Vysya Bank, Ghaziabad on 19.11.1987 and the Bank had kept a cheque for Rs. 7,813/- dated November 25, 1987 in favour of the applicant ready. On behalf of the applicant it was argued that the respondent never intimated the applicant that she was entitled for refund and that the same had to be collected from the Bank. According to her numerous letters written to the respondent as well as visits to the respondent''s office did not yield satisfactory response. It is seen from the original brochure relating to Vijaya Nagar Sector 9 Housing Scheme, November, 1986 that the applications for allotment of houses were to be submitted to the Bank (in this case Vysya Bank, Ghaziabad). THE registration amount was also to be paid to the Bank by means of challan. Clause 5 of the brochure lays down that applicants who had not been reserved houses would be returned their registration amount along with 5% interest. It is true that the brochure does not make it clear that applicants who have not been reserved houses should get back their registration amount along with 5% interest by applying to the Bank. According to the respondent this was the general practice and all other unsuccessful applicants have claimed the refund of their amounts accordingly. THE applicant registered for a house in December, 1986. He filed the compensation application in September, 1996. He has annexed copies of the letters written to the respondent on 1st May, 1996 and June 30, 1996 asking for refund of the amount. THE letter in the column "Action Line" in the Hindustan Times was also published in September, 1996. No evidence was filed to show that the applicant made any effort to correspond with the respondent earlier than 1996 or before the lapse of approximately 10 years. It is the contention of the respondent that the registration money as well as 5% interest was deposited in the Bank for refund to the applicant in November, 1987. THE Advocate for the respondent argued that it was the applicant who by his own default had not taken back the refund of the amount and this application was filed in order only to earn interest on the amount. Any compensation under the Act can be claimed only if a person can establish that he has suffered loss or damage due to indulgence in an unfair trade practice. In this case, there is evidence to show that the respondent deposited the registration amount along with promised interest of 5% with the Bank in November, 1987. The original brochure clearly states that the applications for allotment of houses were to be made to the Bank along with the registration amount. There is no evidence to show what efforts were made by the applicant to get back the registration amount from the respondent prior to 1996. It is obvious that if the applicant had made enquiries with the Bank which accepted the deposit he might have got some helpful information. Thus, in the facts and circumstances of the case it has not been established that the respondent has either misrepresentated or has not honoured any representation. On the other hand, the respondent has proved its bona fides by establishing that the registration amount was deposited back with the Bank for refund to the applicant in the event of his approach the Bank with proof of payment by surrender of the original challan.

IN the reply to the compensation application, the respondent also stated that the compensation application is not maintainable as Vysya Bank, Ghaziabad, which accepted the deposit has not been made a party. However, during the arguments, the Advocate for the respondent did not press this point and argued the case on merits. In view of the foregoing, I come to the conclusion that no case of indulgence of unfair trade practice falling within the meaning of Section 36A of the Act on the part of the respondent has been established and there is no scope for invoking Section 12B of the Act. On the basis of information furnished by the respondent, the applicant can claim the refund of the registration amount by approaching Vysya Bank, Ghaziabad. Notwithstanding this order, it is also open for the applicant to pursue the case for getting back the money from the Bank and the respondent through all means including appropriate civil proceedings. In the premises, the compensation application filed by the applicant fails and is, therefore, rejected. There is no order as to costs. C.A. dismissed.