MASTER TAJINDER PAL SINGH vs SURYA PROMOTERS And DEVELOPERS

THIS order will dispose of the above compensation application filed under Section 12B of the Monopolies & Restrictive Trade Practices Act, 1969. The compensation application was first filed on 22.6.1993. Later on with the permission of the Court amended application was filed. The respondents No. 3 and 4 filed reply to the above amended application. Rejoinders were subsequently filed by the applicant. There was no reply on behalf of respondents No. 1 and 2. Respondents Nos. 1 and 2 never responded to the notices issued to them by this Commission. Thus respondents 1 and 2 were proceeded ex parte. The issues were framed on 18.4.1994. Subsequently the applicant filed affidavits of witnesses which were examined by respondent Nos. 3 and 4. The respondents No. 3 and 4 also filed the affidavit of witnesses and the witnesses were examined by the applicant.

THE relevant charges against the respondents made by the applicant are as under: "It is submitted that on or about the month of March/April, 1989, the respondents through advertisements in various newspapers and leaflets represented to the public that they are developing land/ colony by the name ''Surya City'' and that it is a free hold residential colony. It had been represented in the leaflet that Surya City will be a posh mini-city with all urban amenities, developed and planned etc. Acting on the said representations of the respondents, the applicant No. 1 through his father, applicant No. 2 booked a plot of land and paid to the first respondent a sum of Rs. 29,750/- vide cheque No. 208391 dated 22.4.1989 drawn on the State Bank of India for which Receipt No. 000134, dated 22.4.1989 had been issued to the applicant by the first respondent. Soon thereafter the applicants learnt from an advertisement appearing in some newspapers given on behalf of U.P. Government that the said colony known as ''Surya City'' was unauthorised and warned the public against buying any plot of land in the said colony. On reading the said press note in the newspaper the applicants felt that the respondents had made false representations in the manner stated above and thus asked for refund of the money by letter dated 4.5.1989."

The applicant further stated in its petition that respondent No. 1 had refunded the money of Rs. 29,750/- to the applicant vide cheque dated 2nd February, 1990 drawn on New Bank of India. This cheque was dishonoured. Since then no payment is made to the applicant by any of the respondents. The applicant, therefore, wants the refund of the money alongwith interest, expenses and mental agony.

To the above charges no reply has been filed by respondents 1 and 2. However, respondents 3 and 4 filed the reply. In their reply they said that the respondents 3 and 4 are not responsible as the matter concerned primarily with respondent Nos. 1 and 2. Respondents No. 3 and 4 were only the agents who collected the money and gave to the respondents No. 1 and 2. Moreover according to respondents Nos. 3 and 4 the cheques were deposited with the account of respondents No. 1 and 2 and also the refund money was issued by respondent Nos. 1 and 2, through cheque which were later on dishonoured. Thus, according to respondents No. 3 and 4 they do not come into the picture of giving the refund to the applicant at all. More over they have quoted an advertisement given by respondents No. 1 and 2 on 23.9.1989 in Hindustan Times, Delhi wherein respondents No. 1 and 2 asked the booking holders of the Surya City to get the refund from respondents No. 1 and 2. Hence respondents No. 3 and 4 claim to have no responsibility for the refund of the money.

IN their rejoinder to this reply of respondents No. 3 and 4 the main thrust of the applicant is that since the name of respondents No. 3 and 4 appears as authorised agent in the advertisement of the promoters (respondents No. 1 and 2) in the newspaper, respondents No. 3 and 4 should also be held responsible for the said unfair trade practices. The witnesses were also examined. The witness produced by the applicant was examined by the respondents No. 3 and 4. In the affidavit of the witness Shri S.S. Juneja the averments are more or less the same as in the complaint application. Since the averments against respondents No. 1 and 2 were not challenged by respondents No. 1 and 2, therefore, the averments are taken as deemed to be the correct ones. So far as the allegations against respondents No. 3 and 4 are concerned the averment only state that although respondents No. 3 and 4 were only the authorised agents, still they should be made responsible being the party to the same unfair trade practices with respondents No. 1 and 2. In the cross examination the witness has accepted that respondents No. 3 and 4 were the agents. It is also accepted that the cheque was drawn in favour or respondent No. 1 and refund was also made by the respondent No. 1. The witness has filed a complaint with the Police Authorities but it was in connection with criminal proceeding and not to the compensation or damage.

ON the other hand the affidavit filed by the witness of respondents No. 3 and 4 again reiterated more or less the same facts which were given in their replies to the complaint application. They have also raised the plea that the applicant has gone to the police station and the applicant also published in the newspaper maligning respondents No. 1 and 3 which were refuted by respondents No. 1 and 3 by counter publication and the complainant did not succeed in the police case. These are not relating to compensation but for the criminal or other proceedings. In the cross examination nothing much is examined except that the documents got confirmed and numbered. It is also mentioned in the cross-examination that respondent Nos. 3 and 4 have helped the complainant to get the refund from respondent No. 1 by means of cheque which later on bounced. The application is primarily for the refund of the money alongwith other claims under Section 12B of the Monopolies & Restrictive Trade Practices Act, 1969. It is a fact as per Annexue I of the complaint and also proved subsequently that the money went to the Bank of respondent Nos. 1 and 2 and also refunded by the respondent Nos. 1 and 2. The advertisements given were also on behalf of respondent Nos. 1 and 2 although the names of respondent Nos. 3 and 4 are mentioned as authorised agents. The duty of the authorised agent is to collect the payment on behalf of respondent Nos. 1 and 2 and to deposit with respondent Nos. 1 and 2. The averments made in the advertisement and the promises made to the applicant were primarily from respondent Nos. 1 and 2. Since there is no replies from respondent Nos. 1 and 2 and as also the proceedings were set ex parte against them, the averments made by the applicant against respondent Nos. 1 and 2 in application as well as subsequent statements of witneses which are supported by affidavits cannot be over-ruled and should be said to be correct against respondent Nos. 1 and 2. In this connection the applicant has relied on similar and identical cases against respondent Nos. 1 and 2 in CA No. 35/92 dated 8.6.1994. Since the facts in the above stated case are more or less identical and also in view of the discussions made above, we are of the view that the respondent Nos. 1 and 2 had indulged in unfair trade practices which were prejudicial to public interest, to the interest to applicant and interest of consumers in general. So far as respondent Nos. 3 and 4 are concerned they were only the collecting agents and they were not to get the money and also to refund the money. They have discharged their duty as an agent. According to the applicant even respondent Nos. 3 and 4 have helped the applicant to get the refund cheque though it was dishonoured later on. Under the above section we have only to make the person responsible for refund who has collected the money. We are not to decide for the action in tort. Thus looking into the above facts and evidences we are of the view that respondent Nos. 3 and 4 cannot be held responsible for unfair trade practices.

THUS, as stated above we are of the view that respondent Nos. 1 and 2 are held responsible for the unfair trade practices and not the respondent Nos. 3 and 4. We, therefore, decree the payment of compensation to the applicant by respondent Nos. 1 and 2 of the amount of Rs. 29,750/- (principal amount) deposited by the applicant with the respondent Nos. 1 and 2 together with interest at the rate of 18 per cent per annum from the date of deposit, that is, 22nd April, 1989 to the date of payment. We do not see enough justification to award any amount towards mental agony as claimed. The above amount decreed should be paid to the applicant within 8 weeks from the date of this order. Application disposed of.