TaxTMI 
TaxTMI 
2022 (1) TMI 1343
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....aur Monga deposited two further instalments, with the sixth instalment deposited in September 1993. Eight years later, i.e., in December 2001, a demand notice for payment of the eighth and ninth instalments was issued to the complainant. She resisted this notice, as there was no intimation about the progress of work and delivery of possession of flat to her. The developer however, issued a letter thereafter, cancelling the allotment of the complainant's flat on 30th April 2005. The complainant had deposited seven instalments up to 4th October 1993 totalling Rs. 4,53,750/-. With the cancellation letter, the developer enclosed a Pay Order dated 30th April 2005 for Rs. 4,53,750/- issued by Citibank towards full refund of payments made by the complainant towards the flat. 3. Aggrieved, the complainant through her lawyer, issued a notice dated 7th September 2005 to the developer, stating that she was always ready and willing to pay the instalments towards the flat, in tune with the allotment letter, but the developer did not keep up its part of the bargain regarding timeliness of delivery of possession and quality of construction. The notice alleged that even 40% of the construction wo....
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....ntly provided for establishment of an Appellate Tribunal to hear appeals against orders passed by the Competition Commission of India. The matters pending before MRTP Commission were transferred to the (then) Competition Appellate Tribunal (hereinafter, "COMPAT"). By order dated 29th July 2011, COMPAT framed issues in the application filed under Section 12B of the MRTP Act. The issues related to maintainability of the petition; whether unfair trade practice had been proved; and if so, were they prejudicial to the public; and also, if the complainant was entitled to any compensation. 6. Having regard to the evidence produced, COMPAT by its order Dr (Mrs) Manjeet Kaur Monga vs. Mr K.L. Suneja, Civil Appeal No. 39/2009, dated 3rd August 2015 concluded that the developer had falsely represented to the general public (including the complainant) the time within which the project was to be completed, i.e., three years, but did not complete the construction for more than a decade. The COMPAT held the developer guilty of unfair trade practice under Section 36-A (1) (i), (ii) & (ix) of the MRTP Act and also ruled that the complainant was justified in not paying further instalments and the d....
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...., apparently because these aspects were not addressed and Citibank was not a party before the Tribunal. The court therefore disposed of the appeals by remitting the matter to COMPAT with directions to implead Citibank as an additional respondent. Additionally, the developer was directed to pay the compensation worked at 15% compound interest up to 30th April 2005. The last issue which COMPAT was to consider on remand was whether there should be any compensation and if so, what should be the amount payable after 30th April 2005 and whether Citibank was liable to pay any interest to the account holder. Impugned Order of the NCLAT 9. After remand, the complainant impleaded Citibank as a respondent. All respondents were allowed to file their respective affidavits in regard to payment of interest, if any, payable to the complainant from 1st May 2005 onwards. By the impugned order, NCLAT noticed the facts leading to the order of this Court, including that the complaint was filed in 2005 along with the original Pay Order, issued at the behest of the developer by Citibank, which had been returned initially by the complainant, but given back to the complainant. The NCLAT also considered t....
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.... of the case. 12. It was submitted that the developer's argument that the amount had been deducted from its account, and that it was not aware about the filing of the original Pay Order, could not be countenanced. Learned counsel highlighted, that moreover, the developer took full advantage of the amounts deposited by the complainant, and after cancelling the allotment, had immediately allotted the flat to another purchaser, for a considerably higher sum of Rs. 21 lakhs. This fact was not disputed by the developer. Therefore, the complainant could not be placed at a disadvantage, because the amounts deposited and lying with the developer had multiplied manifold. The developer had the advantage (twice over) of obtaining consideration from the new allottee / purchaser. Contentions of the Developer 13. The developer urged, in response to the complainant's appeal, as well in its appeal, that no fault could be attached to it, and it could not be fastened with any liability, once the Pay Order dated 30th April 2005 was received by the complainant. It was urged by senior counsel for the developer that this court had carefully restricted the remand to whether any liability arose due to ....
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....tion Ltd vs. Ananta Bhattacharjee Hindustan Paper Corporation Ltd vs. Ananta Bhattacharjee, (2004) 6 SCC 213, dated 28th April 2004 and in Gurpreet Singh vs. Union of India Gurpreet Singh vs. Union of India, 2006 (8) SCC 457, dated 19th October 2006. Analysis and Conclusion 18. For deciding this appeal, it is unnecessary to recount the entire spectrum of facts and analyse the rival contentions, so far as they relate to the liability of the developer for the period prior to 30th April 2005. The scope of the Tribunal's remit, in this case, was defined by this court's final order in the appeal decided by it earlier. Supra note 3, para 9 This court, after noticing that the developer had applied for revalidation after the complainant had urged before the court that the Pay Order had been deposited in the MRT Commission, further noted that the instrument had been revalidated in 2016 and the amount was credited to the account of the developer on 22nd May 2016. The court then proceeded to frame the scope of the remand in the following terms: "...To that limited extent, we propose to send back the matters to the tribunal. Therefore, these appeals are disposed of as follows: (1) Ci....
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....Even the counter affidavit filed by the complainant in the developer's appeal states that she: "Bonafidely also deposited the Pay Orders dated 30-04-2005 in the registry along with the complaint under protest in court." 21. Since the pleadings in the complaint did not refer to the Pay Order, which was attached in the original along with the complaint, the developer's reply too was silent on this aspect. This is evident from a bare reading of the reply to the complaint before the MRTP Commission filed by the developer on 3rd February 2006. Likewise, the reply to the Notice of Enquiry, which was issued by the MRTP Commission, and filed by the developer (supported by affidavit dated 25th January 2007) also does not allude to the Pay Order. 22. In the previous proceedings before this court, in the complainant's appeal, Supra note 3 this court's order, dated 29th April 2016 reads as follows: "The learned counsel for the appellant submits that the Demand Drafts furnished by the respondents have already been deposited before the MRTP Commission. The respondents are free to move the Competition commission for withdrawal of the amount. We record the statement of the appellant th....
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....stitution under Section 144 C.P.C. and on the general principle of restitution, the builder cannot be put to unmerited injustice and the appellant should not take the undue advantage as held by this Court in Citibank N.A. v. Hiten P. Dalal and Others, (2016) 1 SCC 411, as canvassed by the learned counsel appearing for the builder. 7. Learned counsel appearing for Citibank, inviting our reference to the additional affidavit contended that it is a fact that the money from the current account of the builder has been deducted on 30. 04. 2005 and it has not been paid to the payee. But, at the same time, it cannot be said that the money was enjoyed by the Bank, since being a pay order, at any moment the instrument is presented, the Bank was bound to honour the same and, therefore, only for the lapse on the part of either the payee or the account holder for encashing or cancelling the instrument, the Bank cannot be saddled with any interest. It is also submitted by the learned counsel appearing for the Bank that they are governed by the instructions issued by the Reserve Bank of India in that regard. 8. We find from the order of the Tribunal that both the issues have not been gone int....
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.... any interest in terms of the RBI directions. The bank had also deposed that the Pay Order was cancelled on the request of the developer through its letter dated 26th May 2016 and that the funds were credited back to the account of the developer on 16th June 2016. It was further noticed that the amount for issuing the Pay Order was deducted from the current account of the developer. After noticing these facts, the Tribunal appears to have been swayed by the circumstance that the developer was held liable for unfair trade practice, and directed to pay compensation (in terms of the previous orders of the COMPAT) affirmed by this court, i.e., 15% compound interest on Rs. 4,53,750/-. 28. In the opinion of this court, the impugned order has not rested its findings on any principle of law, much less any statutory provision. The Tribunal appears to have been completely swayed by the complainant's plight. In doing so, it did not give due consideration to the fact that Rs. 4,53,750/- was debited from the account of the developer. The complainant, for reasons best known to her, filed the original Pay Order due to perhaps lack of proper advice or instruction. Apparently, no order contemp....
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.... of sub-rule (1), the money order or payment through bank, as the case may be, shall accurately state the following particulars, namely:- (a) the number of the original suit; (b) the names of the parties or where there are more than two plaintiffs or more than two defendants, as the case may be, the names of the first two plaintiffs and the first two defendants; (c) how the money remitted is to be adjusted, that is to say, whether it is towards the principal, interest or costs; (d) the number of the execution case of the Court, where such case is pending; and (e) the name and address of the payer. (4) On any amount paid under clause (a) or clause (c) of sub-rule (1), interest, if any, shall cease to run from the date of service of the notice referred to in sub-rule (2). (5) On any amount paid under clause (b) of sub-rule (1), interest, if any, shall cease to run from the date of such payment: Provided that, where the decree-holder refuses to aceept the postal money order or payment through a bank, interest shall cease to run from the date on which the money was tendered to him, or where he avoids acceptance of the postal money order or payment through bank, interest shall ce....
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....of the amount by the appellate court or that he can re-open the transaction and make a re-appropriation of interest first on Rs. 10,000/-, costs and then the principal and claim interest on the whole of the balance sum again. Certainly, at both stages, if there is short-fall in deposit, the decree holder may be entitled to apply the deposit first towards interest, then towards costs and the balance towards the principal. But that is different from saying that in spite of his deposit of the amounts decreed by the trial court, the judgment debtor would still be liable for interest on the whole of the principal amount in case the appellate court enhances the same and awards interest on the enhanced amount." 30. The rule was explained in another decision of this court, in V. Kala Bharathi & Ors. vs The Oriental Insurance Company Ltd: V. Kala Bharathi & Ors. vs The Oriental Insurance Company Ltd., 2014 (5) SCC 577, dated 1st April 1947. "A bare perusal of the aforesaid provisions makes it amply clear that the scope of Order XXI Rule 1 of the Code of Civil Procedure is that the judgment debtor is required to pay the decretal amount in one of the modes specified in Sub-rule (1) thereof....
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....complainant's argument that on account of the omission of the developer, she was wronged, and was thus entitled to receive interest, cannot prevail. The records nowhere disclose any fault on the part of the developer; on the other hand, the complainant did not take steps to protect her interests. It has been held by this court, in Sailen Krishna Majumdar v Malik Labhu Masih10 that in such cases, even if equities are equal, the court should not intervene: 10 Sailen Krishna Majumdar vs. Malik Labhu Masih, 1989 (1) SCR 817, dated 21st February 1989. "Equity is being claimed by both the parties. Under the circumstances we have no other alternative but to let the loss lie where it falls. As the maxim is, 'in aequali jure melior est conditio possidentis'. Where the equities are equal, the law should prevail. The respondent's right to purchase must, therefore, prevail." In the present case too, the complainant cannot claim interest from the developer, who had returned the Pay Order. As discussed, at the time of filing of the complaint, she could have chosen one among the various options to ensure that the amount presented to her was kept in an interest-bearing account, with....