SUDHA GUPTA vs MESSRS DLF UNIVERSAL LIMITED

AN application has been filed on behalf of the respondent Nos. 2 and 3 under Sections 12A(2) and 13(2) of the MRTP Act, 1969 (the Act for brief) read with Order XXXIX, Rules 2A to Rule 5 of the Code of Civil Procedure, 1908 for vacation of the ex parte ad interim injunction order dated the 6th June, 1996. By virtue of the impugned order, the respondent No. 1 was restrained from proceeding with construction on the plot No. 1225 and further respondent Nos. 2 and 3 who had made an application to respondent No. 1 for allotment through sale of an executive home in DLF, Qutab Enclave, Gurgaon and had also paid an amount of Rs. 20,04,355/- were impleaded as respondents Nos. 2 and 3.

IT is necessary to give brief synopsis of the facts of this case by way of background to understand the genesis of the present proceeding. A complaint was filed by Ms. Sudha Gupta under Section 36A of the Act alleging unfair trade practices on the part of the respondent No. 1, DLF Universal Limited. She also filed an application under Section 12B of the Act seeking compensation from the respondent No. 1. IT was complained by her that she had booked a plot @ Rs. 1,750/- per sq. yard and she paid a total amount of Rs. 4,89,800/- and although she was informed through a letter of 18th January, 1993 that a plot had been allotted to her and an agreement had also been executed but subsequently, the allotment was cancelled on 2nd June, 1993 due to non-payment of certain instalments by her and she was advised to collect the refund cheque from the respondent by a letter dated the 5th January, 1994. She addressed a letter dated the 27th June, 1994 that in case the said plot had been resold to another person, she was entitled to mesne profit and if her dues were to be refunded, she should be sent a crossed cheque. She approached the Commission alleging that the impugned agreement and, in particular, Clauses 9,10 and 11 thereof were unfair and void and that a cease and desist order should be passed against the respondent. She also filed an application for interim relief under Section 12A of the Act and prayed that the respondent be restrained from transferring, reselling, registering, parting with the possession or creating any charge in respect of the plot in question. After considering the complaint petition, the compensation application and the interim relief application, the following injunction order was passed by the Commission on 18th August, 1994 : "Issue notice returnable on 22nd September, 1994. In the. meantime, DLF shall not transfer or allot plot No. 1225, DLF Qutab Enclave, Phase-IV to any person till further orders."

After the above ex parte order, it was stated in reply by the respondent No. 1 that the allotment was cancelled as the applicant/ complainant failed to deposit the balance amount and according to Clause 10 of the Agreement for Sale dated the 7th January, 1992 between the parties, respondent was entitled to cancel the plot due to default in payment. It was further mentioned that an agreement for sale of the plot in question (plot No. 1225, DLF Qutab Enclave, Phase-IV) had been entered into with Smt. Kamlesh Bali and Shri Manish Bali on the 23rd September, 1993.

THE complainant also filed an application dated the 7th November, 1994 under Section 13(B) of the Act alleging that the respondent was converting the property, in dispute, from a plot to built up houses by carrying on construction and had committed breach of the injunction order passed by the Commission on the 18th August, 1994. THE contempt application was heard and disposed of by an order passed on 7th December, 1995. It was observed that no contempt had been committed by or on behalf of the respondent. THE application made by respondent No. 1 for vacation of the injunction order passed by this Commission was also disposed of holding that there was not point in vacating the injunction already granted and as it had become in operational due to third party rights having been created in the plot in question. A review application under Section 13(2) of the Act was filed by the applicant/ complainant against the order of this Commission dated 7th December, 1995. She also sought a clarification whether the original injunction order passed on 18th August, 1994 was still operational. It was held by the Commission that the original order of 18th August, 1994 was still operational and no transfer of the plot Nq. 1225 could be effected till the injunction order was vacated or modified. The respondent was also further restrained from proceeding with construction on the plot and it was also directed that Smt. Kamlesh Bali and Shri Manish Bali be added to the array of respondents as respondent Nos. 2 and 3. It was also directed that Notice of Enquiry should be issued under Section 36A(1) read with Sub- sections 36B(a) and 36D of the Act.

AGGRIEVED by this order the respondents Nos. 2 and 3 have filed an application for the vacation of the ex-parte ad interim injunction order. We have heard the learned Advocate for the respondents as well as the applicant/ complainant''s Attorney and seen the relevant record. Perusal of the orders of the Commission reveals that the injunction order of 18th August, 1994 was passed and modified and confirmed by the subsequent orders of 7th December, 1995 and 6th June, 1996 after considering all the relevant facts including the question of balance of convenience. Not only did the applicant/ complainant file a fresh application for revised injunction on 23rd September, 1994 with the prayer that the respondent No. 1 be restrained from raising any construction over the plot in question, the respondent, too, made an application for vacation of the stay order. Both these applications were disposed of by the order dated the 7th December, 1995. As third party rights had been already created, the prayer for revised injunction was not granted. A review application under Section 13(2) of the Act against this order of 7th December, 1995 was filed by the applicant/complainant and was disposed of by the order of 6th June, 1996. It was categorically held in that order that the original injunction order of the 18th August, 1994 was operational. The Commission also came to the conclusion while passing the order dated 6th June, 1996 that a prima facie case of unfair trade practices had been made out by the complainant and she would suffer irreparable loss if the construction on the plot, in question, was completed and its possession handed over to the third party. It was also observed in the order that no legal transfer of the property, in question, had so far taken place and balance of convenience was thus in favour of the applicant/ complainant. It was also observed that till the construction was complete, the transfer could not be legally made and mere agreement for sale/purchase did not constitute transfer of property in the legal sense. It was further held by the Commission that no such transfer had taken place and till the injunction order was in force, plot No. 1225 could not be transferred. It is a detailed order and has been passed after considering all the relevant facts highlighted by the parties and does not call for any interference. In any case, the case is now at the evidence stage and it is in the interest of the parties that the trial should be expedited so that the final order on merits can be passed rather than delaying it by impugning interlocutory orders. In that view of the matter, there are no grounds for vacating or modifying the injunction order already assed and subsequently modified and confirmed. The application is accordingly rejected. Application dismissed.