PREM NARAIN ASTHANA vs TECHNOLOGY PARKS LTD.

THIS order shall dispose of Compensation Application filed by Shri Prem Narain Asthana s/o Shri Shiv Charan Lal, r/o A6-F1, Dilshad Garden, Shahdara, Delhi- 110032 (hereinafter referred to as applicant) under Section 12-B of the Monopolies and Restrictive Trade Practices Commission (hereinafter referred to as Act) against M/s. Technology Parks Ltd., through its Managing Director/Chairman, Shri P.S. Sabharwal, 50 & 51, Regal Building Parliament Street, New Delhi-110001 (hereinafter referred to as respondent).

DURING 1988, the respondent represented through mass advertisements that the proposed Technology Park/Park City would be a Hi-Tech Enterprise Zone Project in village Tusiyana, Block Bisrakh, Tehsil Dadri, District Ghaziabad (NOIDA-Dadri Road). The applicant, who is a retired Non-Government Servant, allured by the advertisements booked a plot by making a payment of Rs. 39,468/- and the respondent issued Receipt No. 113 dated 18.5.1989 for the same. Accordingly, the respondent allotted a Plot bearing No. B-115 measuring 299 sq. yards @ Rs. 330/- per sq.yard for a total consideration of Rs. 98,670 /- against the booking of the applicant. Accordingly, a Plot Buyers Agreement was executed between the applicant and the respondent on 19.12.1998. Entire consideration price of Rs. 98,670/- was paid by the applicant in monthly instalments of Rs. 1,644/-. In addition, the applicant also paid an amount of Rs. 11/960/- towards sewerage and development charges as demanded by the respondent. As such, total sum of Rs. 1,10,630/- was paid by the applicant to the respondent against the said booking. The respondent kept informing the applicant from time to time that the plot is being developed. In addition, the respondent through its Advocate, Mr. Suresh Vohra issued a public notice that the development of the project is in full swing but in reality there was no development in the said project of the respondent. The applicant waited for years for the physical possession of the said plot. In the end, he requested the respondent either to allot the plot or to refund his deposits but all in vain. According to the applicant, withholding of money deposited towards cost of plot by the respondent constitutes deficiency of service and is covered under the unfair trade practice of misrepresentation of the facts attracting the provisions of Section 36A of the Act. Since the acts of the respondent to withhold the money of the applicant without any reason is an act of unfair trade practice, the applicant approached this Commission vide an application under Section 12-B of the Act, claiming therein a total sum of Rs. 3,10,630/- (Rs. 2,00,000/- as damages for mental tension and agony + Rs. 1.10.630/- as the amount deposited by him) along with interest @ 24% per annum from the dates of the deposits till the payment is made.

Notice under Section 12(b) of the application was issued returnable on 14.9.1995. The respondent despite proper service did not put in his appearance and a fresh notice returnable on 23.11.1995 was issued by the Commission. On completion of the proceedings, following issues were framed: 1. Whether the respondent has indulged in UTPs alleged in the C.A. ? 2. Whether the applicant has suffered any loss or damage as a consequent of UTPs alleged ? 3. Relief? Our answers to the aforesaid issues are as under: 1. In the affirmative. 2. In the affirmative. 3. As per the order. The reasons for our giving the above conclusions have been discussed in this order in the succeeding paragraphs.

APPLICANT filed its evidence by way of affidavit of Shri Prem Narain Asthana along with supporting documents. Cross-examination of the applicant''s witnesses could not take place since none appeared on behalf of the respondent on the subsequent hearings. However, the respondent was given the liberty to furnish his list of witnesses, their affidavits but since neither the evidence was filed nor the respondent put in his appearance, the case was fixed for final arguments. On account of non-appearance of the respondent at the argument stage, the proceedings were set ex parte against it. We heard the ex parte arguments advanced by the applicant. In fact, it is a case of non-rebuttal. The respondent after filing its reply ceased to defend itself. On critical analysis of the material record and the ex-parte arguments advanced by the applicant, we found that the applicant pursuant to an advertisement, booked a residential plot in Block ''B'' of Park City Project in village Tusiyana, Block Bisrakh, Tehsil Dadri, Distt. Ghaziabad (NOIDA-Dadri Road) and paid an amount of Rs. 39,468/-. In response to the said booking, the respondent allotted a plot No. B-115 of size 299 Sq. Yards @ Rs. 330/- per Sq. Yard. Total amount to be paid for the said plot was fixed at Rs. 98.670/- which was paid by the complainant in 34 monthly instalments. The complainant also paid a sum of Rs. 11.960/- towards sewerage and development charges as demanded by the respondent. Also a plot buyers agreement was executed on 19.12.1988. The respondent kept on informing the complainant that the project is being developed. This fact was also represented " by the respondent through public notices dated 13.11.1989 and 13.3.1991. The complainant approached the respondent several times with a request to handover the possession of the plot or to refund the deposited amount of Rs. 1,10,630/- with interest but to no avail. The act of holding of complainant''s deposited money by the respondent constitutes deficiency of service and it is liable to pay damages for causing mental agony to the tune of Rs. 2,00,000/- besides refunding of money deposited by the complainant along with 24% interest.

THE respondent on the other hand took its defence that the respondent has not indulged in any monopolistic, restrictive or unfair trade practice and, therefore, the question of any consequential loss/damage does not arise. It is a civil matter arising out of a contract entered into between the parties and cannot be tried by this Commission. THE amount of Rs. 1,10,630 /- deposited by the applicant is not disputed by the respondent. In various cases pertaining to Technology Parks Ltd. for its schemes in U.P. (NOIDA/ Ghaziabad), the Commission has already held that the respondent Company has indulged in unfair trade practices attracting the provisions of Section 36A of the Act. The Commission in its one judgment covering a batch of six cases bearing U.T.P.E. Nos. 21 to 26 of 1992 held that the advertisement issued by the respondent has misled simple and unsuspecting purchases of the plots and has passed a "Cease and Desist" order against the respondent from indulging in the aforesaid unfair trade practices. Since the facts of this case are also identical, we hold that the respondent has indulged in unfair trade practices as alleged by the applicant. It is quite clear that since the applicant has suffered pecuniary losses, he is entitled to relief.

IN view of the above, we direct the respondent to refund the amount of Rs. 1,10,630/- deposited by him along with interest @ 18% p.a. from the dates of deposit of all the 34 instalments, till the same is refunded to him.

IN the prayer clause of the application, the applicant has sought, compensation towards mental agony to the tune of Rs. 2,00,000/-. We are not agreeable to award such huge compensation particularly when the interest at the rate of 18% is allowed from the dates of deposit. However, we are of the view that he is entitled to compensation to the tune of Rs. 10.000/- towards mental agony and Rs. 5.000/- towards cost of case. The respondent is directed to pay the aforesaid amounts within 6 weeks from the date of this order and file an affidavit of compliance within 2 weeks thereafter, which shall not be later than 8 weeks from the date of this order.

A copy of this order shall be sent to both the parties under R.P.A.D. Application disposed of.