Radhika Kapur & Ors Vs.
M/S D.L.F. Universal Ltd.  Insc 777 (17 December 2004)
P.Venkatarama Reddi & A.K.
Mathur Interlocutary Application No.5/2004 P. Venkatarama Reddi, J.
This appeal by special leave is preferred against the order dated 4.9.2000
in U.T.P.E. No. 206 of 1998 passed by the MRTP Commission by which the interim
relief sought for by the appellants was rejected with certain observations.
In the application/complaint filed under Section 36A of the Monopolies and
Restrictive Trade Practices Act (for short 'Act'), the main relief sought for
was to restrain the respondent from cancelling the allotment of the apartments
in D.L.F. Beverly Park, Gurgaon for non payment of the extra amount demanded
from the appellants by the letter dated 2.6.1997 etc. The immediate provocation
for filing the complaint seems to be the letter issued by the respondent-
Company on 18.9.1998 calling upon the appellants to pay the escalated charges
by 10th October, 1998 failing which, the respondent threatened to cancel the
allotment without further notice. One of the other reliefs sought for was to
direct the respondent to handover possession of the apartment forthwith. The
last prayer was to inquire into the unfair trade practices adopted by the
respondent and to direct the respondent to desist from such action in future.
Initially the appellants filed a miscellaneous application under Section 12A
of the Act seeking stay of demand of extra charges and to restrain the
respondent from cancelling the allotment of the apartments for non-payment of
the extra amount demanded. This application was rejected on 23.4.1999. The
Commission observed that the propriety or otherwise of demanding extra charges
will have to be decided in the main enquiry and that there was no prima facie
ground to grant interim relief, especially, having regard to the fact that the
applicants were protected against cancellation of allotment by virtue of the
undertaking given by the respondent in this behalf.
Another miscellaneous application was filed sometime later purportedly under
Section 12A of the Act to handover the possession of the flat. It was contended
therein that in spite of depositing an extra amount over and above the
instalment payable as per the agreement, the respondent had refused to handover
the possession. This application having been rejected by the impugned order,
the SLP was filed. Though Section 55 of the Act provides for an appeal to this
Court against an order made by the Commission under Section 12A on one of the
grounds specified in Section 100 CPC, the appellants, for reasons undisclosed,
have chosen to by-pass that remedy and invoked the jurisdiction of this Court
under Article 136 of the Constitution.
The Commission observed that the case was ripe for final disposal and no
immediate irreparable loss will be caused if the interim relief prayed for was
not granted, especially having regard to the fact that the interests of the
applicants was sufficiently protected by the earlier order by placing a
restraint on the cancellation of allotment. The Tribunal referred to the
interim order of this Court in certain other matters concerning some other
parties who filed similar complaints before the Commission. That order was
passed in C.A. No. 6502-6520 of 1998. In that case, while issuing notice,
interim order was passed by this Court that the possession shall be handed over
pursuant to the clarificatory order passed by the Commission on payment of 75%
of the extra charges demanded and the remaining 25% to be deposited with the
Registry of the Court.
Subsequently, the said appeals were disposed of by passing an order based on
the consent of the parties that the respondent herein (appellant in C.A.No.
6502-6520 of 1998) could withdraw the amounts deposited without prejudice to
the respective contentions urged before the Commission. A perusal of the
impugned order dated 4.9.2000 discloses that the appellants were not prepared
to conform to the conditions imposed in the interim order of this Court in the
civil appeals referred to supra on the ground that the said case was
distinguishable. However, the Commission found, prima facie, that there was no
After the miscellaneous application was disposed of, considerable progress
was made in regard to the enquiry and some witnesses were also examined. On
22.11.2002, this Court granted leave and the original record has been
requisitioned. Therefore, the further enquiry has not concluded. While so, the
appellants filed I.A.No. 4 of 2003 in the first instance seeking an interim
order to direct the respondent to handover the possession of flats on the
appellants furnishing adequate security for the balance amount. This I.A. was
rejected by this Court by an order dated 2.12.2003. Thereafter, the appellants
have made another endeavour to get possession of the flats by filing the
present application i.e. I.A. No. 5 of 2004. The relief sought for is to direct
the respondent to give the possession of the respective apartments as per
agreement and to stay the escalation charges and interest on the delayed
payment as demanded by the respondent. As the point arising in I.A.5 and the
main appeal is practically the same, they are being disposed of by this order.
The latest position regarding the amounts payable as per the respondent's
demand is given at Page 68 of I.A.No.5. There are six items in the tabular
statement as shown below:
1 Dues towards basic sale price 2 Dues towards extra charges 3 Delayed
interest on basic sale price 4 Delayed Interest on extra charges 5 Stamp duty
and registration charges 6 Maintenance charges According to the above
statement, roughly Rs.27 lakhs is payable by each of the appellants. The
learned counsel for the appellant submits that apart from the sums at items 1
& 5 which are admitted, the appellant is prepared to pay the extra charges
(item 2) of Rs.8,78,905/- (in one case it is Rs.8,51,116/-) 'without prejudice'
and that it is just and proper to direct the delivery of possession subject to
the final outcome of the enquiry. The learned counsel for the appellant mainly
assailed the propriety of demanding the interest on extra charges, that too at
a high rate, when the extra charges themselves is the subject-matter of
He also demurred to the demand of maintenance charges, even without delivery
of flat. We put it to the respondent's counsel that the respondent may receive
the amounts due towards items 2 & 3 subject to the deposit of amount
payable under the item No.4 i.e. delayed interest on extra charges with the
Commission and then deliver possession, without prejudice to the respective
contentions. The learned senior counsel for the respondent has however not
agreed for this course and he wants the full payment to the last paisa before
possession is handed over. The learned counsel for the respondent submits that
the Commission had no jurisdiction to direct possession to be delivered by way
of temporary injunction under Section 12A and the Commission has rightly
declined such relief.
The course of enquiry has been virtually stalled by the appellants by making
persistent efforts to get interim relief in some form or the other. Without
going into the larger question whether the Commission could straightaway pass
an order under S.12-A directing possession to be handed over on the payment of
balance sale price, we are not inclined to interfere with the impugned order of
the Commission. In declining to grant the relief of possession by way of
interim measure, the Commission cannot be said to have committed a
jurisdictional error or patent illegality.
There is no perversity, nor irrelevant reasoning which makes the impugned
order vulnerable to attack. No irreparable damage is caused to the appellants
by declining the mandatory injunction to put the appellant in possession even
before the enquiry is concluded, as rightly held by the Commission. Moreover,
it is pertinent to note that no offer was made before the Commission nor in the
SLP filed in this Court for payment of extra charges, 'without prejudice'.
Above all, I.A. No.4 seeking substantially the same relief was dismissed by
this Court. Viewed from any angle, we do not find any valid ground to disturb
the impugned order of the Commission in exercise of the jurisdiction under Art.
136, though we do feel that the respondent has exhibited somewhat unreasonable
attitude in spurning the offer made in the course of hearing.
I.A. No.5 as well as CA No. 7785/2002 are therefore dismissed. No costs.
The enquiry by the MRTP Commission shall be proceeded with expeditiously.
The Registry shall send back the records to the Commission immediately.