SITALAKSHMI SARMA vs Greater Noida Industrial Development Authority

IN this petition filed under Section 12B of the Monopolies and Restrictive Trade Practices Act, 1969 (the MRTP Act for short), the applicant has challenged the respondent''s right to deduct an amount equal to 20% of the amount deposited in a situation where the allotment is surrendered after 30 days from the date of allotment.

FOR proper appreciation of the point at issue, it is necessary to briefly state the background of the case. In response to an advertisement released in the newspapers, the applicant applied for allotment of a plot measuring 150 sq. mtrs. in the ALPHA Residential Scheme of the respondent and deposited an amount of Rs. 12,750/- by way of registration money. The respondent vide its letter dated 2.6.1992 allotted a plot and asked the applicant to deposit the balance amount of Rs. 1,14,500/- within 45 days from the date of allotment i.e. by 14.7.1992. Being unable to deposit the aforesaid amount within the stipulated period of 45 days, the applicant requested the respondent for extension in the period of payment from 45 days to 90 days. The respondent, however, granted an extension of 30 days subject to payment of interest @ 20%. The applicant finally deposited the balance amount on 10.9.1992. It is stated that in terms of the letter of allotment, the draw of lots for specific plot numbers was to be held in the last quarter of the year 1993 and the possession of the plot was to be delivered in March, 1994. It has been alleged that there being no indication or intimation of any such thing happening, the applicant surrendered the allotment on 15.3.1994 and claimed refund of the amount deposited by her. The bank receipts of deposits duly discharged by the applicant were also sent to the respondent on 16.5.1994. About two months later, the respondent refunded the amount of Rs. 96,294/- vide Cheque No. 483207 dated 2.7.1994 after deducting an amount of Rs. 31,206/- which was equal to 20% of the total amount of Rs. 1,27,500/- deposited by the applicant.

The applicant''s allegation is that forfeiture of the aforesaid amount was unfair because under the terms and conditions given in the brochure issued to the applicant at the time of booking, the respondent was not authorised to do so.

IN its reply, the respondent has denied the allegation of unfair trade practices made by the applicant and has claimed that it was well within the powers of the respondent to deduct 20% of the total premium of the plot even in the situation in which the applicant surrendered the allotment. After the completion of pleadings, the following issues were framed : (1) Whether the respondent is or has been indulging in the unfair trade practices as claimed in the compensation application ? (2) Whether the applicant has suffered any loss as a result of the unfair trade practices ? (3) Relief.

By way of evidence, the applicant filed her own affidavit and list of certain documents. The applicant was cross-examined by the Advocate for the respondent on 27.1.1997. The respondent''s evidence comprised of the affidavit of the Manager of the respondent Authority and some documents. The respondent''s witness was also cross-examined on 8.10.1998.

AFTER the evidence was over, learned Counsel for the parties filed their written submissions on 19.10.2000 and addressed oral arguments on 1st February, 2001. The applicant''s case is that she had surrendered the plot after a period of nearly two years from the date of allotment. It is contended that Clause F of Section III of the brochure is not applicable to the applicant because under the aforesaid clause, a certain amount can be forfeited either when the plot is surrendered within 30 days from the date of allotment or when it is cancelled due to default in the payment of instalments. Learned Counsel for the applicant further contended that subsequent amendment in the terms and conditions of the brochure was done at the back of the application without giving her any notice and without obtaining her consent. In support of her case, learned Counsel for the applicant relied upon the ruling of the MRTP Commission in Gulzara Singh Azad v. UPSIDC, reported in Vol. 8, No. 9, CTJ decided on 11.1.2000. She also referred to two other cases namely, Prem Narain Asthana v. Technology Park, reported in 1999 (2) CPR 10, and C.B. Arora v. Greater Noida Industrial Development Authority. Learned Counsel for the respondent on the other hand took the plea that the forfeiture of the deposit at the rate of 20% was fully justified as it was strictly in accordance with the terms and conditions of the brochure as amended by Resolution dated 9.3.1993. He further contended that in terms of the residuary powers conferred by Clause P-1 of Section VI of the brochure, the respondent was empowered to amend the terms and conditions of the brochure even with retrospective effect. He further explained that subsequent amendment of Clause F of Section III of the brochure was necessitated because the brochure issued at the time of booking took care only of a situation where the allotment was surrendered within 30 days from the date of allotment. It did not contemplate a situation where the plaintiff surrendered the allotment after a period of 30 days. To add strength to his arguments, learned Counsel for the respondent relied upon the following rulings : (1) Shashi Kiran Sood v. The Chief Executive Officer, Greater Noida Industrial Development Authority, reported in III (1999) CPJ 31 (MRTP) passed on 28.6.1999 in C.A. No. 136/1996. (2) Shri Subhash C. Jindal v. Greater Noida Industrial Development Authority, passed by the Commission on 4.12.2000 in C.A. No. 272/96. (3) Bareilly Development Authority v. Ajay Pal Singh, AIR 1989 SC 1076.

I have carefully considered the submissions made by the learned Counsel for the parties and have also perused the averments made in their respective pleadings. There is no dispute as to the facts of the case. The point at issue is whether the respondent was justified in forfeiting the amount equal to 20% of the amount deposited by the applicant. Admittedly, under the terms and conditions given in the brochure issued at the time of booking, the respondent was not authorised to forfeit 20% of the amount deposited in a situation akin to that of the applicant. Clause F of Section III of the brochure was amended subsequently and this was done in exercise of the residuary powers conferred on the respondent by Section VI of the brochure, which reads as follows : "Section VI - P - Other Clauses P-1 - The Chief Executive Officer or any authorised officer reserves the right to make such additional alterations or modifications in the terms and conditions of allotment from time to time as he may consider just and expedient."

THERE is no denying the fact that the clause containing the residuary powers referred to above was a part of the brochure issued to the applicant at the time of booking. Hence it was as much a part of the contract entered into between the applicant and the respondent as other clauses of the brochure in view of the ruling of the Hon''ble Supreme Court in the case of Bareilly Development Authority v. Ajay Pal Singh (supra). In terms of the aforesaid ruling, it can also be presumed that the applicant fully understood the terms and conditions of the brochure, which inter alia contained a clause giving residuary powers under which the respondent reserved the right to make such additional alterations or modifications in the terms and conditions of allotment from time to time as may be considered just and expedient. Since the rights of the parties are to be governed by the contract of which the brochure is an integral part, the subsequent amendment made through the resolution referred to above cannot labelled as unjust and arbitrary. Since the residuary clause forms the part of the contract, I am also of the view that it was not necessary for the respondent to give notice to the allottees or to obtain their consent for amending the terms and conditions of the brochure. The amended clause of the brochure is reproduced below : "13. After the allotment, cases have arisen where allottees under the lumpsum payment plan and under instalment payment plan have demanded return of their money. After consideration of such cases, the following decisions are taken : (1) Not relevant. (2) Not relevant. (3) In case of surrender after one year of allotment but before acceptance of delivery of possession, 20% of the total cost of the plot shall be forfeited and the balance amount deposited shall be refunded without any interest."

I wonder how the above amendment can be called unjust or arbitrary as it merely covers a grey area left in the brochure issued at the time of booking. It takes care of a situation where the allotment is surrendered after a lapse of 30 days. This situation, as submitted by the respondent, could not be contemplated at the time of booking. Hence, in my view, it was a well intentioned and valid amendment and it cannot be taken to have caused any prejudice to the applicant. The rulings cited by the learned Counsel for the respondent lend further support to this view. On the other hand, the case law cited by the learned Counsel for the applicant does not come to her rescue particularly in view of the binding ruling of the Hon''ble Supreme Court in Bareilly Development Authority v. Ajay Pal Singh (supra).

THE applicant''s allegation that there was delay in giving the possession of the plot also remains unsubstantiated. Admittedly, the possession of the plot was to be given in March, 1994. But this was only the expected time of delivery and a reasonable delay due to factors beyond the control of the respondent could well be anticipated. Surprisingly, in the instant case, the applicant did not even wait for the expected time to come to an end and she chose to withdraw from the scheme on 15th March, 1994 itself,. The applicant has thus, failed to make out any case of unfair trade practices against the respondent. This being so, the question of applicant having suffered any financial loss on account of such unfair trade practices does not arise.

IN view of the foregoing discussion, the compensation application of the applicant is dismissed with no order as to costs. C.A. dismissed.