TaxTMI 
TaxTMI 
2013 (7) TMI 343
X X X X Extracts X X X X
X X X X Extracts X X X X
.... According to her, the plot was agreed to be purchased at Rs. 1750/- per sq. mtr. She claims to have deposited the basic sale price of Rs.1,00,800/- through a demand draft and thereafter paid Rs.3,89,000/- between 3.12.1991 and 4.9.1992 and thus had made total payment of Rs.4,89,800/-. 3. In her complaint, she inter-alia, pointed out that the she inquired vide her letter dated 14.1.1993 about the demarcation of the plot No. 1225 and had also complained about the non-receipt of any allotment letter and also protested about dishonouring of the terms and conditions of the brochure, which was allegedly the basis of the purchase of the said plot. It is her case in the complaint that this letter was replied to by the respondent by the letter dated 18.1.1993 and it was pointed therein that she is liable to pay the interest @20% per annum for belated payment and the calculations were to be mailed to the complainant subsequently. According to her, this commitment was never honoured. According to her, she sought further clarification as she was dissatisfied with the aforementioned reply and for which she wrote a letter on 8.2.1993. According to her, though nothing was furnished to the com....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed on the basis of the brochure (annexure C-1) which is silent about any earnest money or forfeiture clause. According to her, the cancellation could not have been made as it was totally an unfair exercise on the part of the respondent. She pointed out that in fact she has paid more than 50% of the total purchase consideration of the plot and she was never served any legal notice for cancellation of the plot No. 1225. According to her, the respondent had engaged in profiteering exercise by selling the same to someone else and that also amounts to an unfair trade practice. Under the circumstances, she prayed for the following reliefs :- (a) The possession of Plot No. 1225 in the DLF Qutab Enclave Phase IV and for registration thereof in the name of the complainant on the payment of the balance sale price as per the brochure originally issued by the respondent; and (b) Compensation for Rs.1,00,000 for pecuniary loss and immense mental agony. The complaint was supported with an affidavit. She also filed an application under Section 12A of the Act for injunction, more or less on the similar lines. 4. The Commission issued a Notice returnable on 22.9.1994 vide its order date....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n 7.12.1995. As against this order, the complainant seems to have filed a review application. In the review application, the complainant had sought a Full Bench hearing. However, that application was not pressed. However, another application came to be moved seeking clarification on the injunction passed on 18.8.1994 read with the subsequent order 7.12.1995. After referring to the pleadings on the review application etc. this Commission passed a detailed order on 6.6.1996 in which it was observed that the earlier agreement dated 23.9.1993 with Smt. Kamlesh Bali and Shri Manish Bali was merely an agreement for sale and did not amount to transfer. The Commission took a view that no transfer could be affected till the injunction order dated 18.8.1994 was vacated or modified. The Commission thus declared that order dated 18.8.1994 was still operational and to that extent subsequent order dated 7.12.1995 should stand amended. The Commission also observed that the respondent should not make any further construction on the plot till further orders. Very interestingly, the Commission directed that Smt. Kamlesh Bali and Shri Manish Bali the persons who were the earlier agreement holders and....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... That application was rejected on the ground that R-2 and R-3 had themselves not offered any affidavit of evidence and therefore there was no question of cross-examination. 8. Thereafter, the complainant came out with an application under Section 340 Criminal Procedure Code in view of which she was not pressing M.A. No. 15/08. It was ordered by our predecessor that it would be better that UTPE would be decided first and only during its adjudication if it was necessary to consider the application under Section 340 Cr. P.C. that would be simultaneously dealt with. 9. On 15.7.2011 the complainant made a statement in the open Court that she was only interested in getting a plot and not in any monetary refund. On that day she did not continue with the hearing of the petition and stated that her application under Section 340 Cr. P.C. should be decided first. The Bench on that date passed the following order:- "The complainant, appears in person, stated that she is only interested in getting a plot and not in any monetary refund. When it was pointed out to her that in view of the Order of Hon'ble Supreme Court in the matter of Ghaziabad Development Authority v. Ved Prakash Aggarw....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n application by which she gave particulars of a First Information Report (FIR) which seems to have been registered as FIR No.205 dated 04.02.1997. In the aforesaid application dated 19.01.2009 a reference is made to that FIR and the fact that no action was taken over that FIR and the complainant had to move an application under RTI Act. Then there is in paragraph 2, there is a reference to the application filed by respondent Nos.2 and 3 for vacating the interim orders passed by the Commission on 18.08.1994. An allegation is made that the application bears a forged signature of Mrs. Kamlesh Bali and the said forgery has been done by the advocate Mr. Ajay Goel. Further allegation is made that there was an intention of cheating by respondent Nos.2 and 3 on the part of advocate Mr. Ajay Goel and that there was no Vakalatnama or Power of Attorney on the record. A contention is raised that for these reasons, the Commission should refuse the permission granted to respondent Nos.2 and 3 to join at final arguments stage. All this is followed by a prayer clause which we have quoted earlier. Thereafter, there appears to be another application filed on 01.04.2010. This appears to be under the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e pleased to impose fine of Rs.2 lacs on each accused respondent/ accused no.1 to 3 and Advocate Ajay Goel for doing such kind of criminal offence cheating forgery and misappropriation of facts before the Hon'ble Commission with the poor complainant who has been aggrieved for more than 16 years. The above facts and circumstances of the matter are required to be considered in the interest of justice." 14. We have intentionally referred to the above application dated 01.04.2010 which is in continuation of earlier application dated 19.01.2009. Inspite of our efforts at least to understand the nature of the application we have not been able to decide as to what is the real objective and content of this application purportedly under Section 340 Cr.P.C. Section 340 Cr.P.C. very specifically says that in order that an action under Section 340 is taken, the Court should be of the opinion that an inquiry should be made into the offence referred to in Clause (b) of sub-Section (1) of Section 195, which appears to have been committed in or in relation to a proceeding in the Court, or as the case may be in respect of a document produced or given in evidence in a proceeding in that court. Co....
X X X X Extracts X X X X
X X X X Extracts X X X X
....use the action of the MRTP commission in this case virtually amounts to grant of specific performance." 16. From this it is clear that this Commission has no jurisdiction to hand over the possession of plot in question to the complainant; that is the task of the Civil Court. The Hon'ble Supreme Court in the closest term has restrained to this Commission from assuming the power of the Civil Court. It is also clarified in the paragraph that this Court cannot grant any specific performance. 17. The Commission has already recorded a specific statement made before the Court by the complainant, and quoted herein above, that she was not interested in any compensation, but was insisting upon the possession of the plot. This statement was made before the open Court on 15th July, 2011 before Hon'ble Dr. Justice Arijit Pasayat who was the Chairman of this Commission. 18. Therefore, in reality nothing would survive in this complaint, at least in so far as the possession is concerned. The Hon'ble Supreme Court is more than clear on this issue. If this is not sufficient, in a reported judgment in Saurabh Prakash v. DLF Universal Ltd. [2006] 72 SCL 443 (SC) Hon'ble Supreme Court after ta....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eferred in the earlier part of the judgment to a letter written by the complainant in pursuance of the oral assertion on the part of DLF for return of the amount to her. That letter is on record vide letter dated 27th June, 1994. Of course, in this letter, the complainant claimed mesne profits also along with the amounts that she claimed. We cannot persuade ourselves for grant of mesne profits particularly in view of the clear law laid down in the case of Saurabh Prakash (supra). It was argued before us that the case of Saurabh Prakash (supra) will not be applicable, but a reported judgment DLF Universal Ltd. v. Ekta Seth [2008] 86 SCL 28 (SC) would be applicable. This judgment was DLF Universal Ltd. (supra). We have gone through this judgment, where in paragraphs 12, 13, and 14 the Hon'ble Supreme Court has held as under :- "12. In the present case we find that the installments were duly paid for at least five years and payment was stopped thereafter on the ground that the increase in the cost of the flat was beyond the means of the respondent and also the fact that appellant had failed to deliver the possession of the flat in time. On the other hand as submitted there were bon....