REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL  NO(S). 5032-5033/2016

DR. MANJEET KAUR MONGA (DEAD) THR. HER LEGAL  HEIRS KARAN VIR SINGH MONGA     APPELLANT(S)

                               VERSUS

K.L. SUNEJA & ORS.                                 RESPONDENT(S)

WITH CIVIL APPEAL  NO(S).9225-9226/2017 @ SLP(C) NOS.10484-10485/2016 CIVIL APPEAL  NO(S).9223-9224/2017 @ SLP(C) NOS.10481-10482/2016

J U D G M E N T KURIAN, J.

Leave  granted  in  SLP(C)  Nos.10484-10485/2016  & 10481-10482/2016. 2. The appellant in Civil Appeal Nos.5032-5033/2016, who  is  the  legal  representative  of  the  original complainant,  is  before  us  aggrieved  by  the  order dated  3.8.2015  passed  by  the  Competition  Appellate Tribunal, New Delhi (for short, 'the Tribunal') in Unfair Practice Enquiry No.40/2005 and Compensation Application No.39/2009  Paragraph nos.37 and 42 to 44

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of the impugned order read as follows:-

“37. The cancellation of allotment made in favour of the complainant deserves to be declared as wholly arbitrary, illegal and capricious. It is not in dispute that Smt. Gursharan Kaur had deposited three installments  including  the  booking amount.  The  complainant,  Dr.  (Mrs.) Manjeet Kaur Monga deposited three other installments (total Rs. 4,53,850/-). She did  not  deposit  further  installments because the respondents did not complete the  construction  within  the  stipulated time.   For  the  first  time  a  vague statement about the construction was made in  letter  dated  26.12.2001,  which  was issued  after  12  years  of  the  booking. Even thereafter the respondents did not disclose the stage-wise progress in the construction  work  and,  as  mentioned above, they deliberately misconstrued the complainant’s protest dated 22.05.2002 as her  disinclination  to  take  the  flat. Between 2002 and 2005 i.e. the date on which the cancellation letter was issued, the respondents neither entered into any correspondence with the complainant nor apprised her about the progress made in the construction. Therefore, it must be held that the complainant was justified in  not  paying  further  installments  of

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price and the respondents committed grave illegality by cancelling the allotment.

xxx xxx xxx xxx xxx xxx

42. In my view, even though the Tribunal cannot, in view of the law laid down in Ved  Prakash  Aggarwal’s  case,  issue direction to the respondents to deliver physical possession of the flat, there is ample  justification  for  awarding compensation by invoking Section 12-B of the Act and even otherwise, because the complainant and her legal representatives have been subjected to harassment for the period  of  more  than  25  years.  If  the building had been completed within three years as promised by the respondents, the complainant  may  have  got  possession thereof and utilized the same. She could not do so during her lifetime and her legal representatives have been compelled to  pursue  this  litigation.  It  is  an admitted  position  that  between  August, 1989  and  October,  1993,  Smt.  Gursharan Kaur  and  the  complainant  deposited  a total sum of Rs.4,53,850/- in the form of installments.  The  respondents  not  only failed to complete the project within the stipulated time but also failed to return the  installments  deposited  by  Smt. Gursharan Kaur and the complainant. The amount was returned only along with the cancellation  letter  and,  as  mentioned

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above, the complainant had returned the pay order with the legal notice sent on 07.09.2005. 43.  Though  Section  12-B  empowers  the Tribunal  to  award  compensation  but  no criteria  has  been  laid  down  by  the Legislature for exercise of that power. However, keeping in view the fact that the construction of the flat was delayed by more than one decade and the amount of installments deposited by Smt. Gursharan Kaur  and  the  complainant  totalling Rs.4,53,850/-  was  retained  by  the respondents for a period ranging from 15 years to more than 12 years, I feel that ends  of  justice  would  be  served  by directing the respondents to pay compound interest @ 15% per annum to the legal representatives of the complainant. 44.  Accordingly,  UTPE  90/2005  and  C.A. 39/2009 are disposed of in the  following terms :

(i)  It  is  declared  that  the respondents have acted in violation of Section 36-A(1)(i), (ii) and (ix) of the Act and they are guilty of unfair trade practice, (ii)  The  complainant’s  prayer  for directing the respondents to deliver possession of Flat B-301 in Siddharth Shila Apartments is rejected, (iii) The respondents are directed to pay compound interest @ 15% per annum

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to  the  legal  representatives  of  the complainant.  The  interest  shall  be calculated on each instalment paid by Smt.  Gursharan  Kaur  and  the complainant from the date of deposit till 30.04.2005 i.e. the date on which the allotment was cancelled, and (iv)  The  respondents  shall  pay Rs.4,53,850/- and compound interest to the  legal  representatives  of  the complainant  in  terms  of  (iii)  above within a period of three months from today.  If  the  needful  is  not  done, then the legal representatives of the complainant shall be entitled to file appropriate application for execution of this order.”  

3. Since the facts have clearly emerged from what we have  extracted  above,  we  need  not  to  go  into  the factual matrix.  The contention of the appellant is that  since  the  allotment  has  been  cancelled,  the appellant should be entitled to compound interest @ 15% from the original dates of payment from 1989 till the date of payment and there is no justification in limiting the interest to 30.04.2005. 4. It is the contention of the respondents, who have filed  separate  appeals  arising  from  SLP(C) Nos.10484-10485/2016 and SLP(C) Nos.10481-10482/2016,

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that the company and the director have no liability to pay the compound interest even assuming that the appellant  in  Civil  Appeal  Nos.5032-5033/2016  is entitled to any compensation.  It can be only the amount determined under Section 12B of The Monopolies and Restrictive Trade Practices Act, 1969 (for short, 'the Act').  Section 12B reads as follows:-

“12B. Power of the Commission to award compensation. (1) Where, as a result of the  monopolistic  or  restrictive,  or unfair, trade practice, carried on by any undertaking or any person, any loss or damage  is  caused  to  the  Central Government,  or  any  State  Government  or any  trader or  class of  traders or  any consumer, such Government or, as the case may  be, trader  or class  of traders  or consumer  may,  without  prejudice  to  the right of such Government, trader or class of  traders  or  consumer  to  institute  a suit for the recovery of any compensation for the loss or damage so caused, make an application  to  the  Commission  for  an order  for  the  recovery  from  that undertaking or owner thereof or, as the case may be, from such person, of such amount as the Commission may determine, as compensation for the loss or damage so caused.

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(2) Where any loss or damage referred to in sub-section (1) is caused to numerous persons having the same interest, one or more  of  such  persons  may,  with  the permission  of  the  Commission,  make  an application, under that sub-section, for and on behalf of, or for the benefit of, the persons so interested, and thereupon the provisions of rule 8 of Order I of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908), shall apply subject  to  the  modification  that  every reference  therein  to  a  suit  or  decree shall be construed as a reference to the application before the Commission and the order of the Commission thereon. (3) The Commission may, after an inquiry made  into  the  allegations  made  in  the application filed under sub-section (1), make an order directing the owner of the undertaking  or  other  person  to  make payment, to the applicant, of the amount determined by it as realisable from the undertaking or the owner thereof, or, as the case may be, from the other person, as compensation for the loss or damage caused to the applicant by reason of any monopolistic  or  restrictive,  or  unfair trade  practice  carried  on  by  such undertaking or other person. (4) Where a decree for the recovery of any amount as compensation for any loss or damage referred to in sub-section (1)

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has been passed by any court in favour of any  person  or  persons  referred  to  in sub-section (1), or, as the case may be, sub-section (2), the amount, if any, paid or recovered in pursuance of the order made by the Commission under sub-section (3) shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being  in  force,  be  executable  for  the balance,  if  any,  left  after  such  set off.”

5. We  do  not  think  that  there  needs  to  be  any elaborate consideration of the meaning of the word “compensation”  in  terms  of  the  amount  referred  to under the Section.  The amount referred to under the Section is the amount @ 15% compound interest on the amount already deposited, as ordered by the Tribunal. Merely, because a liquidated amount is not stipulated or determined by the Tribunal, it cannot be said that it is not the compensation.  Once the interest, as ordered by the Tribunal, is calculated that will be the amount of compensation referred to under Section 12B of the Act. 6. During  the  course  of  hearing  of  the  appeals

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another interesting point came up for consideration. It has been brought to the notice of this Court that when  the  builder  company,  the  appellant  in  the appeals arising out of SLP(C) Nos.10484-10485/2016, had  taken  the  pay  order  from  the  Citibank  on 30.04.2005,  the  amount  of  Rs.4,53,750/-  covered  by the pay order had actually been deducted from their current account.  But at the same time, the amount had  not  been  paid/received  by  the  payee.   In  the instant case, the account holder cancelled the pay order and requested for re-credit of the amount and, accordingly,  it  is  seen  that  the  Citibank  has re-credited  the  amount  to  the  account  only  on 22.06.2016.   It  is  the  contention  of  the  account holder company that for the period the money was with the Bank, the account holder is entitled to interest and that can be the compensation if at all that can be  paid  to  the  appellant  in  Civil  Appeal Nos.5032-33/2016  for  the  period  after  the cancellation of the allotment.  We may, of course, take note of the submission of the builder that in terms of the principles of restitution 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

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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  into,  apparently because  these  aspects  have  not  been  canvassed  and obviously  because  the  Citibank  was  not  before  the Tribunal.

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9. To that limited extent we propose to send back the  matters  to  the  Tribunal.   Therefore,  these appeals are disposed of as follows:-

i. The Citibank N.A., represented by its Manager, Jeevan Bharti Building, 124, Connaught  Circus,  New  Delhi  will  stand impleaded as additional respondent in the complaint before the Competition Appellate Tribunal, New Delhi. ii. The  builder  shall  pay  the compensation worked @ 15% compound interest up to 30.04.2005. iii. Whether  there  should  be  any compensation and if so, what should be the amount payable after 30.4.2005 and whether the Citibank is liable to pay any interest to the account holder by the Tribunal.

10. To the above limited extent, we remit the matters to the Competition Appellate Tribunal, New Delhi. 11. It  will  be  open  to  the  parties  to  take  all available  contentions  in  respect  of  the  issues remitted to the Tribunal. 12. With the above observations and directions, the appeals are disposed of.

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13. Pending  applications,  if  any,  shall  stand disposed of. 14. There shall be no orders as to costs.

.......................J.               [KURIAN JOSEPH]  

.......................J.               [R. BANUMATHI]  

NEW DELHI; JULY 18, 2017.

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ITEM NO.3               COURT NO.6               SECTION XVII                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS CIVIL APPEAL  NO(S). 5032-5033/2016 DR. MANJEET KAUR MONGA (DEAD) THR. HER LEGAL  HEIRS KARAN VIR SINGH MONGA    APPELLANT(S)                                 VERSUS K.L. SUNEJA & ORS.                                 RESPONDENT(S) WITH SLP(C) NO. 10484-10485/2016 (XVII) SLP(C) NO. 10481-10482/2016 (XVII) Date : 18-07-2017 These appeals were called on for hearing today. CORAM :           HON'BLE MR. JUSTICE KURIAN JOSEPH          HON'BLE MRS. JUSTICE R. BANUMATHI For Appellant(s)

Mr. Debesh Panda,Adv.                   Mr. Milind Kumar, AOR'

Ms. Suruchi Suri,Adv.                   Mr. Avinash Kumar, AOR                    Mr. Nikilesh Ramachandran, AOR

Mr. Mayank Wadhwa,Adv.                               UPON hearing the counsel the Court made the following                              O R D E R

Leave  granted  in  SLP(C)  Nos.10484-10485/2016  & 10481-10482/2016.

The  appeals  are  disposed  of  in  terms  of  the signed judgment.

(NARENDRA PRASAD)                               (RENU DIWAN) COURT MASTER (SH)                              ASST. REGISTRAR

(Signed “Reportable” Judgment is placed on the file)

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