Supreme Court of India
B.B. PATEL & ORSversusDLF UNIVERSAL LTD
- Citation
- 2022 INSC 91
- Decided
- 25 January 2022
- Disposal
- Disposed off
- Bench
- L NAGESWARA RAO
Holding
The Supreme Court held that no unfair trade practice was proved, so no compensation under Section 12‑B of the MRTP Act is payable, but ordered the respondent to hand over possession upon payment of Rs.25 lakh per flat.
Summary
The appellants, buyers of apartments from DLF Universal Ltd., entered into an Apartment Buyer Agreement in 1993 promising possession within 2½‑3 years. Possession was delayed and the builder imposed extra charges, leading the buyers to allege unfair trade practice under the Monopolies and Restrictive Trade Practices (MRTP) Act and the Consumer Protection Act. The MRTP Commission dismissed the complaint, finding no misrepresentation. On appeal, the Supreme Court held that the delay and extra charges did not constitute an unfair trade practice as the agreement allowed reasonable extensions and the buyers never issued a notice of termination. Consequently, no compensation could be awarded under Section 12‑B of the MRTP Act. However, in the interest of justice, the Court directed the respondent to hand over possession of each flat upon payment of Rs.25,00,000 by the appellants. The appeal was therefore disposed of.
Issues considered
- Whether the delay in handing over possession and imposition of extra charges amount to an unfair trade practice under the MRTP Act and Consumer Protection Act.
- Whether the respondents made any misrepresentation that would satisfy the definition of unfair trade practice.
- Whether time for possession was made the essence of the contract under the ABA.
- Whether compensation can be awarded under Section 12‑B of the MRTP Act in the absence of proven unfair trade practice.
- Whether the Apartment Buyer Agreement is unconscionable or void under Section 23 of the Indian Contract Act.
Legislation cited
- Consumer Protection Act, 1986s. 2(r)
- Indian Contract Act, 1872s. 23
- Monopolies and Restrictive Trade Practices Act, 1969s. 12-B, s. 2(i), s. 2(o), s. 36A, s. 36B(a), s. 36D, s. 36E
Subjects
unfair trade practiceMRTP ActConsumer Protection Actdelay in possessionextra chargescontractual time of essencecompensationunconscionable contractreal estateapartment buyer agreement
Judgment
[2022] 8 S.C.R. 51 51
B.B. PATEL & ORS. A
v.
DLF UNIVERSAL LTD.
(Civil Appeal No. 1106 of 2009)
JANUARY 25, 2022 B
[L. NAGESWARA RAO, B. R. GAVAI AND
B. V. NAGARATHNA, JJ.]
Monopolies and Restrictive Trade Practices Act, 1969 – ss.12-
B, 36-A, 36-B(a), (d), 36-D and 36-E r/w ss.2(i) and 2(o) – Held:
s.12-B of the MRTP Act empowers the Commission to grant C
compensation only when any loss or damage is caused to a
consumer as a result of a monopolistic, restrictive or unfair trade
practice – In the present case, there has been no misrepresentation
made by the respondent amounting to an unfair trade practice for
the delay in handing over possession of the apartments – There
D
was no misrepresentation made by the respondent and, therefore,
the allegation of unfair trade practice is rejected – Thus, as
appellants have failed to prove unfair trade practice on the part of
the respondent, they are not entitled to any compensation – Further,
it is settled law that final relief granted by this Court need not be
the natural consequences of the ratio decidendi of its judgment – E
Thus, though, the order of MRTP Commission dismissing the
complaint filed by the appellants u/ss.36-A, 36-B(a), (d), 36-D and
36-E r/wss.2(i) and 2(o), MRTP Act has been upheld, in the interest
of justice, the respondent is directedto handover possession of the
flats to the appellants on payment of Rs.25,00,000/- for each flat
F
by the appellants – Consumer Protection Act, 1986 – s.2(r).
Consumer Protection Act, 1986 – s.2(r) – Monopolies and
Restrictive Trade Practices Act, 1969 – Held: s.2(r) of the Consumer
Protection Act defines unfair trade practice, which is exactly the
same as the definition of unfair trade practice in MRTP Act – In
case a consumer satisfies the consumer forum that the goods G
complained against, suffer from any defect or there is deficiency in
service, the opposite party can be directed to remove the defect or
replace the goods free from defect – The appropriate forum can
direct removal of deficiency in service and direct the opposite party
to discontinue the unfair trade practice or restrictive trade practice. H
51
52 SUPREME COURT REPORTS [2022] 8 S.C.R.
A Contract – Time when not essence of contract – Held: In the
present case, though there is a clause in the Apartment Buyer
Agreement (ABA) mentioning that the possession was to be handed
over within a period of two and half to three years from the date of
ABA, it cannot be said that time was made the essence of the contract
as a reasonable extension of time for delivery was permissible as
B
per clause 16 – Thus, there was no intention on the part of the
appellants to insist on time being the essence of contract as they
did not terminate the ABA due to delay in handing over possession
of the apartments which they could have in accordance with clause
18 of the ABA – Allegation in the complaint is that the respondent
C committed unfair trade practice by seeking to recover large sums of
money from the buyers without handing over possession of the flats
– In the garb of delay in handing over possession of the property,
the appellants are seeking possession of a property, the cost of
which is more than 10 times the price at which it was offered, without
even paying the balance basic sale price–Monopolies and Restrictive
D
Trade Practices Act, 1969.
Disposing of the appeal, the Court
HELD: 1.1 The MRTP Act, 1969 was meant to ensure that
the operation of the economic system does not result in the
E concentration of economic power to the common detriment, for
the control of monopolies, for the prohibition of monopolistic and
restrictive trade practices and for other connected matters. The
Act was made pursuant to the recommendations made by the
Monopolies Enquiry Commission which submitted its report on
31.10.1965. Initially, there was no provision relating to unfair
F trade practices in the MRTP Act. By Section 30 of Act 30 of 1984,
Sections 36A, 36B, 36D and 36E were inserted in the MRTP
Act. Unfair trade practice as defined in Section 36A of the MRTP
Act is a trade practice which, for the purpose of promoting the
sale, use or supply of any good or for the provision of any services
G adopts any unfair method or unfair or deceptive practice including
other practices mentioned therein. The manner in which the
inquiry may be conducted by theCommission into unfair trade
practices is dealt with by Section 36B of the MRTP Act. Section
36D of the MRTP Act provides for the powers which may be
exercised by the Commission while inquiring into an unfair trade
H
B.B. PATEL & ORS. v. DLF UNIVERSAL LTD. 53
practice. After conducting an inquiry, if the Commission is of the A
opinion that the practice is prejudicial to the public interest, or
to the interest of any consumer or consumers generally, the
Commission, may direct that (a) the practice shall be discontinued
or shall not be repeated (b) any agreement relating to such unfair
trade practice shall be void or shall stand modified in respect
B
thereof in such manner as may be specified in the order and (c)
any information, statement or advertisement relating to such
unfair trade practice shall be disclosed, issued or published, as
the case may be, in such manner as may be specified in the order.
There was a further amendment made in the year 1991 by which
Section 36C was inserted in the MRTP Act which dealt with C
investigation by Director General before issuing anyprocess in
certain cases, apart from certain changes made to Sections 36A
and 36D of the MRTP Act. The appellants have relied upon
judgments of this Court on unfair trade practice in disputes under
theConsumer Protection Act, 1986. The Consumer Protection
D
Actwas meant for better protection of the interest of consumers
and for the purpose, to make provision for the establishment of
consumer councils and other authorities, for settlement of
consumer disputes and for matter connected therewith. Section
2(r) was introduced in the Consumer Protection Actby an
amendment with effect from 18.06.1993.Section 2(r) of the E
Consumer Protection Act defines unfair trade practice, which is
exactly the same as the definition of unfair trade practice in MRTP
Act. In case a consumer satisfies the consumer forum that the
goods complained against, suffer from any defect or there is
deficiency in service, the opposite partycan be directed to remove
F
the defect or replace the goods free from defect. The appropriate
forum can direct removal of deficiency in service and direct the
opposite party to discontinue the unfair trade practice or
restrictive trade practice. The forum also has the power to award
any amount towards compensation for any loss or injuries suffered
by the consumer due to the negligence of the opposite party. G
[Paras 11 and 12][66-E-H; 67-A-G]
1.2 The thrust of the complaint preferred by the appellants
is that the respondent is guilty of unfair trade practice for
misrepresentation as there was delay in handing over possession
H
54 SUPREME COURT REPORTS [2022] 8 S.C.R.
A of the apartments and extra charges were imposed arbitrarily.
According to the appellants, there was a fixed period of 2½ to 3
(two and half to three years) during which the apartments should
have been handed over and there was considerable delay in the
completion of the project. Imposition of extra cost was
impermissible as the buyers were notinformed about such future
B
cost at the time when theApartment Buyer Agreement(ABA) was
entered into amounting to a false representation resulting in an
unfair trade practice.In so far as unfair trade practice with
reference to the delay in handing over possession is concerned,
the relevant clauses in the ABA which was entered into between
C the parties on 23.3.1993 are clauses 16, 18 and 21(d) of the ABA.
According to clause 16, the company is entitled for reasonable
extension of time for delivery of possession of the premises, in
case, possession could not be delivered within 21/2 to 3 (two and
half to three) years from the date of booking. The reasons for
which a reasonable extension of time is available are elaborated
D
in clause 16. Clause 18 permits the allottee to terminate the ABA
by giving a notice if the company fails to deliver the possession
of the premises within the period specified in clause 16. The
amount of earnest money and other amounts paid by the allottees
shall then be refunded by the company. According to clause 21(d),
E the company shall endeavour to hand over the possession
of premises to the apartment allottee as a licensee on monthly
license basis on completion of payment of 40% of the sale price
and other charges as per clause 21(d). There is no doubt that
there has been a delay in completion of the project beyond three
years. However, the appellants did not issue any notice for
F
termination of the agreement. On the other hand, notices issued
by the appellants on 24.02.1998, 22.04.1998 and 12.08.1998
related to demand of extra costs. The appellants did not, at any
point of time, make a grievance relating to delay in handing over
of possession of the apartment. The main relief in the complaint
G filed by the appellants is to declare the termination of the ABA
by the respondent as void. A further direction was sought for
handing over the apartments without any payments towards the
remaining principal amount and extra charges alongwith damages
and compensation. [Paras 16 and 17][69-G-H; 70-A-G]
H
B.B. PATEL & ORS. v. DLF UNIVERSAL LTD. 55
1.3 In the present case, though there is a clause in the ABA A
which mentioned that the possession has to be handed over within
a period of 2½ to 3 (two and half to three) years from the date of
ABA, it cannot be said that time was made the essence of the
contract as a reasonable extension of time for delivery was
permissible as per clause 16. There was no intention on the part
B
of the appellants to insist on time being the essence of contract
as they did not terminate the ABA due to delay in handing over
possession of the apartments which they could have in accordance
with clause 18 of the ABA. As stated earlier, no notice was issued
by them which related to their grievance with respect to the delay
in handing over the possession. The allegation in the complaint C
is that the respondent has committed unfair trade practice by
seeking to recover large sums of money from the buyers without
handing over possession of the flats. In the garb of delay
in handing over possession of the property, the appellants are
seeking possession of a property, the cost of which is more than
D
10 times the price at which it was offered, without even paying
the balance basic sale price. None of the ingredients constituting
an offence of unfair trade practice as elucidated by this Court in
Colgate Palmolive (India) Ltd. v. MRTP Commission &Ors. have
been substantiated by the appellants. On a detailed consideration
of the material on record, this Court is of the considered view E
that there has been no misrepresentation made by the respondent
amounting to an unfair trade practice for the delay in handing
over possession of the apartments.The extra charges that were
demanded by the respondent were pursuant to clauses 2(b), 4,
15 and 16 of the ABA. According to the appellants, demand of
F
extra charges after the commencement of construction amounted
to manipulation of prices which resulted in increase in the cost to
the detriment of the buyers. Extra cost demanded by the
respondent was incurred due to introduction of a third lift in each
tower, space being provided for laundry facility in basement and
larger entrance lobbies in each tower. Other charges relate to G
firefighting system, external electrification and normal operation
and maintenance costs of recreational facilities. It is pertinent to
note that the cost towardsescalation of material and labour after
the 30.03.1996 was not included in the demand. Even the
additional cost incurred due to revision in the schedule was born
H
56 SUPREME COURT REPORTS [2022] 8 S.C.R.
A by the respondent. There is no dispute that appellants had paid
initial instalments towards extra charges. The respondent had
also duly informed the appellants of the details of the extra cost
being incurred. This Court is not in agreement with the contention
of the appellants that imposition of extra charges is a calculated
and pre- planned design of the respondent. There is no
B
misrepresentation made by the respondent and, therefore, the
allegation of unfair trade practice is rejected. [Paras 19-21][71-
D-G; 72-D-H; 73-A]
Colgate Palmolive (India) Ltd. v. MRTP Commission &
Ors. (2003) 1 SCC 129 : [2002] 4 Suppl. SCR 219 –
C relied on.
1.4 There is no quarrel with the proposition in Central
Inland Water Transport Corporation that an unconscionable term
in a contract is void under Section 23 of the Indian Contract Act,
1872. The other casesrelied upon by the appellants pertain to
D disputes under the Consumer Protection Act. All the three cases
relate to either refund of the amounts deposited by the flat buyers
or payment of compensation for delay on the part of the builder
in handing over possession of the flats on a clear finding of fact
that the delay in handing over possession was solely attributable
E to the builder. After examining the terms of the Agreement in
those cases, this Court was of the opinion that entitlement of the
flat buyers to compensation for deficiency in service on the part
of the builder cannot be restricted by the agreements which are
one sided. The said judgments are not applicable in the instant
case. The reliefs claimed in the said cases are completely different
F from the main reliefs in the present case. In the said cases, the
grievance of the flat buyers was that since there had been a
substantial delay in delivery of the apartments, the buyer should
be entitled to terminate the agreement and to recover the
amounts already paid along with just and reasonable interest/
G compensation which could not be confined to theterms as stated
in a one-sided agreement. As against this, the appellants in this
case are essentially seeking possession of the apartments by
declaration of termination of the agreement by the respondent to
be void, without having to pay any money towards extra charges
or even the basic sale price. There has been no specific reference
H
B.B. PATEL & ORS. v. DLF UNIVERSAL LTD. 57
to any clause in the ABA by which the appellants appear to be A
aggrieved so as to shock the conscience of this Court to travel
beyond its terms in light of it being an unconscionable
contract.There is an averment in para 16 of the complaint that
ABA is an unconscionable contract opposed to public policy as a
consumer has no bargaining power and is an easy victim of unfair
B
trade practice. There is no reference to any clause of the ABA,
in particular, to substantiate the allegation. On the other hand,
the appellants repeatedly refer to the allegation of delay in handing
over possession and imposition of extra charges apart from non-
refund of interest on the amounts paid by them. The appellants
are not entitled to any relief on this count as the order of MRTP C
has already been approved by this Court by holding that there is
no unfair trade practice on the part of the respondent. The
compensation sought by the appellants cannot be granted as
Section 12-B of MRTP Act empowers the Commission to grant
compensation only when any loss or damage is caused to a
D
consumer as a result of a monopolistic, restrictive or unfair trade
practice. As the appellants have failed to prove unfair trade
practice on the part of the respondent, they are not entitled to
any compensation. [Paras 23 and 24][74-D-H; 75-A-D]
Pioneer Urban Land & Infrastructure Limited v.
Govindan Raghavan (2019) 5 SCC 725; Wing E
Commander Arifur Rahman Khan And Aleya Sultana
& Ors. v. DLF Southern Private Limited (2020) 16 SCC
512; Ireo Grace Realtech Private Limited v. Abhishek
Khanna & Ors (2021) 3 SCC 241 – held inapplicable.
Central Inland Water Transport Corporation Ltd. & Anr. F
v. Brojo Nath Ganguly and Anr. (1986) 3 SCC 156 :
[1986] 2 SCR 278 – referred to.
1.5 The learned Senior Counsel for the respondent
submitted that the price of each flat is Rs.3.25/- crores today. In
response to the suggestion made by this Court, he obtained G
instructions from the respondent and submitted that the
respondent is willing to handover the flats provided the appellants
pay the balance amount payable i.e., Rs.31,52,933/- for each flat. It
is settled law that final relief granted by this Court need not be
H
58 SUPREME COURT REPORTS [2022] 8 S.C.R.
A the natural consequences of the ratio decidendi of its
judgment.Though, this Court has upheld the order of MRTP
Commission, in the interest of justice, the respondent shall
handover possession of the flats to the appellants on payment of
Rs.25,00,000/- (Rupees Twenty-Five Lakhs Only) for each flat
by the appellants. [Paras 25 and 26][75-D-E, G-H; 76-A-B]
B
M/s Lakhanpal National Limited v. M.R.T.P. Commission
& Anr. (1989) 3 SCC 251 : [1989] 2 SCR 979; M/s
Philips Medical System (Cleveland) v. Indian MRI
Diagnostic & Research Limited (2008) 10 SCC 227 :
[2008] 13 SCR 1140; Rajasthan Housing Board v.
C Parvati Devi (2000) 6 SCC 104 : [2000] 3 SCR 934;
Bangalore Development Authority v. Syndicate Bank
(2007) 6 SCC 711 : [2007] 7 SCR 47; Sanjay Singh &
Anr. v. U.P. Public Service Commission & Anr. (2007) 3
SCC 720 : [2007] 1 SCR 235; U.P. Public Service
D Commission v. Manoj Kumar Yadav & Anr (2018) 3
SCC 706 – relied on.
Case Law Reference
[1989] 2 SCR 979 relied on Para 13
E [2008] 13 SCR 1140 relied on Para 14
[2000] 3 SCR 934 relied on Para 15
[2007] 7 SCR 47 relied on Para 18
[2002] 4 Suppl. SCR 219 relied on Para 20
F [1986] 2 SCR 278 referred to Para 22
[2007] 1 SCR 235 relied on Para 26
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1106 of
2009.
G From the Judgment and Order dated 19.01.2009 of the Monopolies
And Restrictive Trade Practices Commission, New Delhi in Restrictive
Trade Practice Enquiry No.36 of 1999.
M. L. Lahoty, Anchit Sripat, Pranab Kumar Nayak, Ms. Hemantika
Wahi, Ms. Jesal Wahi, Advs. for the Appellants.
H
B.B. PATEL & ORS. v. DLF UNIVERSAL LTD. 59
Pinaki Misra, Sr. Adv., Ravinder Narain, Praveen Bahadur, A
Siddharth Banthia, Ms. Kanika Gomber, Vishnu Kant, Ishan Narain, Rajan
Narain, Advs. for the Respondent.
The Judgment of the Court was delivered by
L. NAGESWARA RAO, J.
B
1. This appeal has been filed against the judgment dated 19.01.2009
of the Monopolies and Restrictive Trade Practices Commission, New
Delhi dismissing a complaint filed by the appellants under Sections 36-
A, 36-B(a) and (d), 36-D and 36-E read with Sections 2(i) and 2(o) of
the Monopolies and Restrictive Trade Practices Act, 1969 (hereinafter C
referred to as “MRTP Act”).
2. An advertisement was issued by the respondent proposing
attractive schemes of payment for the sale of group housing apartments/
flats namely, “Beverly Park-I” at Qutab Enclave Complex in Gurgaon.
According to one of the schemes, possession of the flats/apartments D
was to be handed over on payment of 40% of the cost of the flat within
2 ½ (two and half) years and the balance amount was to be paid within
equated instalments over the next seven and half years. On 14.01.1993,
the appellants applied for allotment of 4 apartments Nos. 404A, 404B,
406A and 406B in Tower No. 4, Windsor. By choosing the aforementioned
option, the appellants sought to make payment for the apartments within E
a period of 10 years. According to the application form, possession was
to be delivered to the appellants as “Licensees” for use and occupation
on a monthly License Fee till the balance sale consideration was paid.
Flats with super area of 270.35 sq. meter at the basic sale price of
Rs.7,525/- per sq. meter were allotted to the appellants. Apart from the F
basic sale price, External Development Charges (EDC) @ Rs.376/- per
sq. meter, construction deposit of Rs.21.5 per sq. meter and lumpsum
security of Rs.15,000/- were to be paid by the appellants for each flat.
3. The Apartment Buyer Agreement (hereinafter referred to as
“ABA”) was executed on 23.03.1993. The relevant clauses of the ABA G
are as under: -
“2(b). The Apartment allottee shall additionally pay on demand to
the Company his proportionate share of the cost for the provision
of external electrification (including but not limited to installation
of electric sub-station, meter box, electric stand-by generator) H
60 SUPREME COURT REPORTS [2022] 8 S.C.R.
A and all fire safety measures (including but not limited to fire fighting
equipment and other accessories, materials and other items
required for the installation and use of the aforesaid equipment.).
In addition, if due to subsequent legislation/Govt. orders of
directives or guidelines or if deemed necessary by the Company,
any further fire safety measure are undertaken, the proportionate
B
charges in respect thereof shall also be payable on demand by the
Apartment allottee.
2(c). The Apartment Allottee shall pay a further sum of
Rs.____________ (Rupees ___________only) as preferential
location charges as per schedule of payments (Annexure II)
C annexed hereto. However, if due to change in the layout plan and
consequent change in the allotment of the Apartment, it ceases to
be so located or there is a change in the preferential location
before or after the registration of sale deed, the Company shall be
liable only to refund without interest extra charges recovered for
D such preferential location or shall be entitled to recover extra
preferential location charges as the case may be.
XXX XXX XXX
XXX XXX XXX
E 4. The price of the Apartment stipulated hereinabove is based on
the price of all materials and labour charges pertaining thereto
ruling on the 1st day of January, 1993. If, however, during the
progress of work, there is increase in the price of the materials
used in the construction work and or labour charges on account
of any reason statutory or otherwise, the cumulative effect of
F such increase as assessed by the Company and intimated to the
Apartment Allottee shall be debited to Apartment Allottee’s account
who shall pay the same on demand. The decision of the Company
in this respect shall be final and binding on the Apartment Allottee.
The increased incidence may be charged and recovered by the
G Company from the Apartment Allotee with any one or more of
the instalments or separately but in any case, before giving
possession or deemed possession of the Apartment.
XXX XXX XXX
XXX XXX XXX
H
B.B. PATEL & ORS. v. DLF UNIVERSAL LTD. 61
[L. NAGESWARA RAO, J.]
16. That the possession of the said premises is proposed to be A
delivered by the company to the Apartment allottee within two
and half/three years from the date of booking of the said premises
by the time aforementioned. If the completion of the buildings (s)
is delayed by reason of non-availability of steel and or cement or
other building materials or water supply or electric power or slow
B
down strike or due to a dispute with the construction agency
employed by the company civil commotion or by reason of war or
enemy action or earthquake of any act of god or if non-delivery
of possession is as a result of any act, notice, order, rule or
notification of the government and or any other public competent
authority or for any other reason beyond the control of the company C
and in any of the aforesaid events the company shall be entitled to
a reasonable extension of time for delivery of possession of the
said premises.
The Company as a result of such a contingency arising reserves
the right to alter or vary the terms and conditions of allotment or if D
the circumstances beyond the control of the company so warrant
the company may suspend the scheme for such period as it may
consider expedient and no compensation of any nature whatsoever
can be claimed by the apartment allottee for the period of
suspension of the scheme.
E
In consequence of the company abandoning the scheme the
company liability shall be limited to the refund of the amount paid
by the allottee without any interest or any other compensation
whatsoever.
XXX XXX XXX F
XXX XXX XXX
18. THAT, if for any reason, the Company is unable or fails to
deliver possession of the said premises to the Apartment Allottee
within the time specified in clause 16 above, or within any further
period or periods as agreed to by and between the parties hereto, G
then in such case, the Apartment Allottee shall be entitled to give
notice to the Company terminating the Agreement, in which event
the Company shall be at liberty to sell and dispose of the said
premises to any person at such price and upon such terms and
conditions as the Company may deem fit. The Company shall
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62 SUPREME COURT REPORTS [2022] 8 S.C.R.
A within a reasonable time from the date of receipt of such notice
and sale of the premises, refund to the Apartment Allottee the
aforesaid amount of earnest money and the further amount, that
may have been received by the company for the apartment allottee
as part payment(s) in respect of the said premises neither party
shall have any other claim against the other in respect of the said
B
premises or arising out of this Agreement.
XXX XXX XXX
XXX XXX XXX
21(d). That the Company shall endeavour to handover, to the
C Apartment Allottee, the Possession of the premises as merely a
“Licencee” on monthly licence basis on the Apartment Allottee
completing payment of 40% of the sale price and other charges
and the Apartment Allottee agree to pay the balance 60% of the
sale price in 30 quarterly instalments as indicated in schedule of
D payments (Annexure II).
If, however for any reason whatsoever, the Company is unable to
handover possession/deemed possession of the Apartment within
the agreed time, the Apartment Allottee shall continue to make
payment to the Company only of the agreed equated quarterly
E instalments including interest @ 18% per annum on reducing
balance payment basis. The Licence Fee shall, however, become
payable from the date of the possession/deemed possession of
the Apartment.”
4. Though the possession of the flats was to be handed over to
F the appellants in January 1996, according to the appellants, construction
commenced only in June, 1996. The appellants continued to make
payment of the instalments as per schedule of payments annexed with
the ABA. An amount of Rs.14,62,552/- was paid till 14.4.1997 for each
flat. On 21.04.2007, the respondent issued a Circular apologizing for the
delay in construction which was due to major improvements being carried
G out in specifications and facilities in order to provide a better product.
The circular also referred to the delay in obtaining Government approvals.
The appellants were informed about the improvements in the project
that were being introduced which included (a) provision for extra lift, (b)
large entrance hall, (c) imported marble, (iv) copper pipes for plumbing,
(v) standby generator and (vi) wooden flooring in study room.
H
B.B. PATEL & ORS. v. DLF UNIVERSAL LTD. 63
[L. NAGESWARA RAO, J.]
5. The respondent sent a demand letter on 02.06.1997 by which A
the appellants were intimated about the extra charges which worked out
to Rs. 8,78,905/- for each flat on account of increase in the area by
9.236 sq. meters, escalation charges on material and labour, external
electrification costs including 24 hours back-up power, sub-station DG
sets, etc. and costs for firefighting measures including sprinkler system
B
and smoke detectors which were being provided. On 26.06.1998, the
respondent informed the appellants that the completion certificate had
been received from the authorities and that the apartments were ready
for use and occupation. The appellants were requested to make the
payments of outstanding dues and complete the documentation work.
According to the Statement of Account sent by the respondent, an amount C
of Rs.19,88,242/- was already paid and the balance due as on 31.07.1998
was Rs.7,46,919/-. In response to the demand for payment of outstanding
amount made by the respondent, the appellants sent a letter dated
12.08.1998. In this letter, the appellants informed the respondent that
they had paid money in excess of what was due and sought refund of
D
the excess amount paid. Another reminder was sent by respondent asking
the appellants to remit an amount of Rs.8,84,287/- which was overdue.
Thereafter on 19.01.1999, the respondent cancelled the ABA as the
outstanding amount was not paid. The respondent also issued cheques
refunding the amounts paid for the flat by the appellants which were not
encashed by the appellants. E
6. The appellants filed a complaint bearing RTPE No. 36 of 1999
under Sections 10(a)(i) IV, 36A, 36B(a) and (d), 36D and 36E read with
Sections 2(i) and 2(o) of the MRTP Act along with Regulations framed
thereunder. In the complaint, the appellants sought for an inquiry into the
commission of various restrictive/unfair/monopolistic trade practices by F
the respondent and for an appropriate cease and desist order against the
respondent restraining the respondent from indulging in similar restrictive/
unfair/monopolistic trade practices. Further, the cancellation of the
allotment of apartment Nos. 404A, 404B, 406A and 406B “Beverly Park-
I” at Qutab Enclave Complex was challenged. The appellants also sought
for setting aside the extra charges levied by respondent by letter dated G
02.6.1997. A direction was sought to the respondent to pay interest @
24% per annum on the instalments paid by the appellants from the date
of payment to the date of handing over of the possession of the
apartments. The appellants also sought for a direction to the respondent
to handover possession of the apartments forthwith after appropriating H
64 SUPREME COURT REPORTS [2022] 8 S.C.R.
A the amounts already paid towards basic sale price and a direction to pay
liquidated damages for loss of rental income from 15.07.1996 along with
Rs.10,00,000/- as compensation.
7. A preliminary objection was raised by the respondent about the
jurisdiction of MRTP to entertain the complaint. Relying upon judgments
B of this Court, the respondent contended that the complaint flows from
an agreement, breach whereof can only be subject matter of civil suit,
and therefore, a complaint of unfair trade practice cannot be entertained
by the Commission. The Preliminary objection was rejected by the
Commission on the ground that Sections 36-A and 37(1) of the MRTP
Act related to unfair/restrictive trade practices and the Commission has
C
jurisdiction to examine the validity of the agreement.
8. The contention of the appellants relating to monopolistic practice
was rejected by the Commission. In respect of a complaint of unfair
trade practice due to the delay in handing over possession of the
apartments, the Commission examined the relevant clauses of the ABA
D
and the contentions of the appellants. In particular, clauses 16, 18 and
21(d) were referred to by the Commission to hold that no fixed period of
2 ½ to 3 (two and half to three) years was agreed upon between the
parties for handing over possession of the apartments. The Commission
was of the view that it is clear from the ABA that the construction and
E development would be in accordance with the building plan as may be
approved by the Director, Town and Country Planning, Government of
Haryana and that possession of the premises was only proposed to be
delivered within 2 ½ to 3 (two and half to three) years. Clause 16 of the
ABA was referred to by the Commission to observe that the respondent
would be entitled for a reasonable extension of time for delivery of
F
possession, in case there was any delay. Further, the Commission was
of the view that the allottee was entitled to issue notice to the company
terminating the ABA under clause 18 thereof, in case, respondent fail to
deliver possession within the time mentioned in clause 16. The
Commission concluded that since there was no misrepresentation made
G by respondent and there was no material produced by the appellants to
show that they entered into the agreement under duress or fraudulent
representation, delay in handing over possession of the apartments to
the appellants did not amount to an unfair trade practice. In so far as the
extra cost demanded by the respondent resulting in unfair trade practice
is concerned, the Commission was of the opinion that demand and
H
B.B. PATEL & ORS. v. DLF UNIVERSAL LTD. 65
[L. NAGESWARA RAO, J.]
collection of extra cost was in terms of the ABA which was agreed to A
by the appellants and some instalments towards extra cost have been
paid by them. As the details for the demand of extra charges were given
by the respondent, it cannot be said that there was any concealment on
their part. The Commission further took note of the fact that the cost of
escalation beyond the contract period was absorbed by the respondent. B
Ultimately, the Commission concluded that the appellants failed to
substantiate the allegation of unfair trade practice on the ground of
imposing extra charges.
9. We have heard Mr. M.L. Lahoti, learned Counsel appearing
for the appellants and Mr. Pinaki Mishra, learned Senior Counsel C
appearing for the respondent. The learned counsel appearing for the
appellants submitted that the appellants entered into an ABA on 23.03.1993
for purchase of apartments after being misled by the advertisements
issued by the respondent. According to the advertisement and brochures,
possession of the apartments had to be delivered within 2 ½ to 3 (two
D
and half to three) years from the date of signing of ABA and on prompt
payment of the instalments till that date. The remaining amount could be
paid by the buyers within next 71/2 (seven and half) years. The construction
of the apartments could not commence even after the expiry of a period
of three years, as the building plans were approved only on 14.08.1996.
It was submitted that since a clear case of misrepresentation has been E
made out, the respondent is guilty of unfair trade practice in not handing
over the possession of the apartment within the fixed period of 2 ½ to 3
(two and half to three) years. The appellants submitted that a perusal of
the ABA would show that it is a one-sided contract completely in favour
of the respondent. The buyers were made to sign on dotted lines and the F
conditions in the clauses of the contract would demonstrate that the
ABA is lopsided tilting in favour of the builder. Such agreements have
been declared to be unconscionable and void by this Court. Appellants
further submitted that the demand of extra charges by the respondent
was impermissible. As the respondent imposed extra charges which are
not contemplated in the ABA, it is clear that the respondent has committed G
an unfair trade practice. The appellants were not informed at the time of
entering into the ABA that extra charges would be levied. Moreover, the
details of the extra charges were given only after persistent demands of
the appellants.
H
66 SUPREME COURT REPORTS [2022] 8 S.C.R.
A 10. Per contra, the defense of the respondent is that appellants
were not coerced to enter into the ABA. It was only after understanding
the implications of different clauses in the ABA, that the appellants booked
4 apartments in the project, which is a landmark property in Gurgaon
today. There was no fixed time for handing over of the possession and
the delay was due to late approval of plans from the concerned authorities
B
apart from other unforeseen reasons. It was submitted that it was open
to the appellants to terminate the contract if they were aggrieved by the
delay in handing over possession of the apartments. The appellants initially
accepted the demand of certain amounts towards extra charges and
paid some instalments towards the same. Thereafter, the appellants
C protested payment of extra cost. The demand of extra cost was
permissible according to the terms of the ABA. As there was no
misrepresentation on the part of the respondent, unfair trade practice as
complained by the appellants has not been made out. The respondent
submitted that majority of buyers of Beverly Park flats have taken over
possession of their apartments long back without any complaint. A few
D
others who raised some disputes have settled with the respondent. It is
only the appellants who have been continuing to litigate for nearly 30
years since the date of signing of the ABA in 1993. Several attempts
were made for settling the dispute, which yielded no result.
11. The MRTP Act, 1969 was meant to ensure that the operation
E of the economic system does not result in the concentration of economic
power to the common detriment, for the control of monopolies, for the
prohibition of monopolistic and restrictive trade practices and for other
connected matters. The Act was made pursuant to the recommendations
made by the Monopolies Enquiry Commission which submitted its report
F on 31.10.1965. Initially, there was no provision relating to unfair trade
practices in the MRTP Act. By Section 30 of Act 30 of 1984, Sections
36A, 36B, 36D and 36E were inserted in the MRTP Act. Unfair trade
practice as defined in Section 36A of the MRTP Act is a trade practice
which, for the purpose of promoting the sale, use or supply of any good
or for the provision of any services adopts any unfair method or unfair
G or deceptive practice including other practices mentioned therein. The
manner in which the inquiry may be conducted by the Commission into
unfair trade practices is dealt with by Section 36B of the MRTP Act.
Section 36D of the MRTP Act provides for the powers which may be
exercised by the Commission while inquiring into an unfair trade practice.
H After conducting an inquiry, if the Commission is of the opinion that the
B.B. PATEL & ORS. v. DLF UNIVERSAL LTD. 67
[L. NAGESWARA RAO, J.]
practice is prejudicial to the public interest, or to the interest of any A
consumer or consumers generally, the Commission, may direct that (a)
the practice shall be discontinued or shall not be repeated (b) any
agreement relating to such unfair trade practice shall be void or shall
stand modified in respect thereof in such manner as may be specified in
the order and (c) any information, statement or advertisement relating to
B
such unfair trade practice shall be disclosed, issued or published, as the
case may be, in such manner as may be specified in the order. There
was a further amendment made in the year 1991 by which Section 36C
was inserted in the MRTP Act which dealt with investigation by Director
General before issuing any process in certain cases, apart from certain
changes made to Sections 36A and 36D of the MRTP Act. C
12. As against this, it is also necessary to deal with relevant
provisions of the Consumer Protection Act, 1986 (hereinafter referred
to as the “Consumer Protection Act”) as the appellants have relied upon
judgments of this Court on unfair trade practice in disputes under the
Consumer Protection Act. The Consumer Protection Act was meant D
for better protection of the interest of consumers and for the purpose, to
make provision for the establishment of consumer councils and other
authorities, for settlement of consumer disputes and for matter connected
therewith. Section 2(r) was introduced in the Consumer Protection Act
by an amendment with effect from 18.06.1993. Section 2(r) of the E
Consumer Protection Act defines unfair trade practice, which is exactly
the same as the definition of unfair trade practice in MRTP Act. In case
a consumer satisfies the consumer forum that the goods complained
against, suffer from any defect or there is deficiency in service, the
opposite party can be directed to remove the defect or replace the goods
free from defect. The appropriate forum can direct removal of deficiency F
in service and direct the opposite party to discontinue the unfair trade
practice or restrictive trade practice. The forum also has the power to
award any amount towards compensation for any loss or injuries suffered
by the consumer due to the negligence of the opposite party.
13. It would be relevant to refer to the law laid down by this Court G
in respect of unfair trade practices under the MRTP Act. In M/s
Lakhanpal National Limited v. M.R.T.P. Commission & Anr.1,
this Court has held as follows: -
1
(1989) 3 SCC 251 H
68 SUPREME COURT REPORTS [2022] 8 S.C.R.
A “7. However, the question in controversy has to be answered
by construing the relevant provisions of the Act. The definition of
“unfair trade practice” in Section 36-A mentioned above is not
inclusive or flexible, but specific and limited in its contents. The
object is to bring honesty and truth in the relationship between the
manufacturer and the consumer. When a problem arises as to
B
whether a particular act can be condemned as an unfair trade
practice or not, the key to the solution would be to examine whether
it contains a false statement and is misleading and further what is
the effect of such a representation made by the manufacturer on
the common man? Does it lead a reasonable person in the position
C of a buyer to a wrong conclusion? The issue cannot be resolved
by merely examining whether the representation is correct or
incorrect in the literal sense. A representation containing a
statement apparently correct in the technical sense may have the
effect of misleading the buyer by using tricky language. Similarly,
D a statement, which may be inaccurate in the technical literal sense
can convey the truth and sometimes more effectively than a literally
correct statement. It is, therefore, necessary to examine whether
the representation, complained of, contains the element of
misleading the buyer. Does a reasonable man on reading the
advertisement form a belief different from what the truth is? The
E position will have to be viewed with objectivity, in an impersonal
manner. It is stated in Halsbury’s Laws of England (Fourth Edition,
paragraphs 1044 and 1045) that a representation will be deemed
to be false if it is false in substance and in fact; and the test by
which the representation is to be judged is to see whether the
F discrepancy between the fact as represented and the actual fact
is such as would be considered material by a reasonable
representee. “Another way of stating the rule is to say that
substantial falsity is, on the one hand, necessary, and, on the other,
adequate, to establish a misrepresentation” and “that ‘where the
entire representation is a faithful picture or transcript of the
G
essential facts, no falsity is established, even though there may
have been any number of inaccuracies in unimportant details.
Conversely, if the general impression conveyed is false, the most
punctilious and scrupulous accuracy in immaterial minutiae will
not render the representation true.”
H
B.B. PATEL & ORS. v. DLF UNIVERSAL LTD. 69
[L. NAGESWARA RAO, J.]
14. Referring to the amendment made to the MRTP Act in 1984, A
this Court in M/s Philips Medical System (Cleveland) v. Indian
MRI Diagnostic & Research Limited2, held that the object of the
amendment broadly was to prevent false or misleading advertisements,
or false representations, claiming that the goods sold are of a certain
standard or have certain qualities, which, in fact, they do not possess.
B
Amendment made in 1984 was to ensure that the persons buying certain
goods were not duped or misled by a representation or advertisement
which stated that these goods have certain features or qualities which,
in fact, they do not possess.
15. In Rajasthan Housing Board v. Parvati Devi3, delay in
delivering of possession of a building amounting to unfair trade practice C
was dealt with in the following terms: -
“14. For deciding such question, the Commission has to find out
whether a particular act can be condemned as an unfair trade
practice; whether representation contained a false statement and
was misleading and what was the effect of such a representation D
made to the common man. The issue cannot be resolved by merely
holding that representation was made to hand over the possession
within stipulated period and the same is not complied with or some
lesser constructed area is given after the construction of the
building. The Commission has to find out whether the E
representation, complained of, contains the element of misleading
the buyer and whether buyers are misled or they are informed in
advance that there is likelihood of delay in delivering the possession
of constructed building and also increase in the cost. For this
purpose, terms and conditions of the agreement are required to
be examined by the Commission. Not only this, the Commission is F
required to consider whether the Board has adopted unfair method
or deceptive practice for the purpose of promoting the sale, use
or supply of any goods or for the provisions of any services. Unless
there is finding on this issue, appellant Board cannot be penalized
for unfair trade practice.” G
16. The thrust of the complaint preferred by the appellants is that
the respondent is guilty of unfair trade practice for misrepresentation as
2
(2008) 10 SCC 227
3
(2000) 6 SCC104 H
70 SUPREME COURT REPORTS [2022] 8 S.C.R.
A there was delay in handing over possession of the apartments and extra
charges were imposed arbitrarily. According to the appellants, there was
a fixed period of 2½ to 3 (two and half to three years) during which the
apartments should have been handed over and there was considerable
delay in the completion of the project. Imposition of extra cost was
impermissible as the buyers were not informed about such future cost at
B
the time when the ABA was entered into amounting to a false
representation resulting in an unfair trade practice.
17. In so far as unfair trade practice with reference to the delay
in handing over possession is concerned, the relevant clauses in the ABA
which was entered into between the parties on 23.3.1993 are clauses
C 16, 18 and 21(d) of the aABA. According to clause 16, the company is
entitled for reasonable extension of time for delivery of possession of
the premises, in case, possession could not be delivered within 21/2 to 3
(two and half to three) years from the date of booking. The reasons for
which a reasonable extension of time is available are elaborated in clause
D 16. Clause 18 permits the allottee to terminate the ABA by giving a
notice if the company fails to deliver the possession of the premises
within the period specified in clause 16. The amount of earnest money
and other amounts paid by the allottees shall then be refunded by the
company. According to clause 21(d), the company shall endeavour to
hand over the possession of premises to the apartment allottee as a
E licensee on monthly license basis on completion of payment of 40% of
the sale price and other charges as per clause 21(d). There is no doubt
that there has been a delay in completion of the project beyond three
years. However, the appellants did not issue any notice for termination
of the agreement. On the other hand, notices issued by the appellants on
F 24.02.1998, 22.04.1998 and 12.08.1998 related to demand of extra costs.
The appellants did not, at any point of time, make a grievance relating to
delay in handing over of possession of the apartment. The main relief in
the complaint filed by the appellants is to declare the termination of the
ABA by the respondent as void. A further direction was sought for
handing over the apartments without any payments towards the remaining
G principal amount and extra charges alongwith damages and
compensation.
18. In Bangalore Development Authority v. Syndicate Bank4,
this Court examined the question whether the time is of essence in a
H 4
(2007) 6 SCC 711
B.B. PATEL & ORS. v. DLF UNIVERSAL LTD. 71
[L. NAGESWARA RAO, J.]
construction contract which was the subject matter of dispute therein. A
Bangalore Development Authority pleaded that the time was not the
essence of the contract. This Court concluded that in a contract involving
construction, time is not the essence of the contract unless specified.
This Court referred to letters written by the respondent in which he did
not make time of performance as the essence of the contract and did
B
not fix even any reasonable time for performance. This Court also took
notice of the fact that the respondent therein did not choose to terminate
the contract in view of the manifold increase in the value of the houses.
Much later, the respondent demanded delivery of the property. In the
facts of the said case, this Court held that it could not be said that the
respondent made time the essence of contract in a manner as recognized C
by law. The Court also noted that the value of the house had escalated
to more than 10 times from the date of the Agreement and the respondent
therein had the benefit of such rise in price and value. Finally, this Court
held that there was no deficiency in service by the appellant entitling the
respondent for any compensation.
D
19. In the present case, though there is a clause in the ABA which
mentioned that the possession has to be handed over within a period of
21/2 to 3 (two and half to three) years from the date of ABA, it cannot be
said that time was made the essence of the contract as a reasonable
extension of time for delivery was permissible as per clause 16. There
was no intention on the part of the appellants to insist on time being the E
essence of contract as they did not terminate the ABA due to delay in
handing over possession of the apartments which they could have in
accordance with clause 18 of the ABA. As stated earlier, no notice was
issued by them which related to their grievance with respect to the delay
in handing over the possession. The allegation in the complaint is that the F
respondent has committed unfair trade practice by seeking to recover
large sums of money from the buyers without handing over possession
of the flats. In the garb of delay in handing over possession of the property,
the appellants are seeking possession of a property, the cost of which is
more than 10 times the price at which it was offered, without even
paying the balance basic sale price. G
20. This Court in Colgate Palmolive (India) Ltd. v. MRTP
Commission & Ors.5, elucidated the following five ingredients to
constitute an offence of unfair trade practice: -
5
(2003) 1 SCC 129 H
72 SUPREME COURT REPORTS [2022] 8 S.C.R.
A “1. There must be a trade practice (within the meaning of
section 2(u) of the Monopolies and Restrictive Trade Practices
Act);
2. The trade practice must be employed for the purpose of
promoting the sale, use or supply of any goods or the provision
B of any services;
3. The trade practice should fall within the ambit of one or
more of the categories enumerated in clauses (1) to (5) of
Section 36A;
4. The trade practice should cause loss or injury to the
C
consumers of goods or services;
5. The trade practice under clause (1) should involve making
a “statement” orally or in writing or by visible representation.”
None of the above ingredients constituting an offence of unfair
D trade practice have been substantiated by the appellants. On a detailed
consideration of the material on record, we are of the considered view
that there has been no misrepresentation made by the respondent
amounting to an unfair trade practice for the delay in handing over
possession of the apartments.
E 21. The extra charges that were demanded by the respondent
were pursuant to clauses 2(b), 4, 15 and 16 of the ABA. According to
the appellants, demand of extra charges after the commencement of
construction amounted to manipulation of prices which resulted in
increase in the cost to the detriment of the buyers. Extra cost demanded
by the respondent was incurred due to introduction of a third lift in each
F
tower, space being provided for laundry facility in basement and larger
entrance lobbies in each tower. Other charges relate to firefighting system,
external electrification and normal operation and maintenance costs of
recreational facilities. It is pertinent to note that the cost towards escalation
of material and labour after the 30.03.1996 was not included in the demand.
G Even the additional cost incurred due to revision in the schedule was born
by the respondent. There is no dispute that appellants had paid initial
instalments towards extra charges. The respondent had also duly informed
the appellants of the details of the extra cost being incurred. We are not in
agreement with the contention of the appellants that imposition of extra
charges is a calculated and pre-planned design of the respondent. We are
H
B.B. PATEL & ORS. v. DLF UNIVERSAL LTD. 73
[L. NAGESWARA RAO, J.]
convinced that there is no misrepresentation made by the respondent and, A
therefore, we reject the allegation of unfair trade practice.
22. Relying upon the judgments of this Court in Central Inland
Water Transport Corporation Ltd. & Anr. v. Brojo Nath Ganguly
and Anr. 6, Pioneer Urban Land & Infrastructure Limited v.
Govindan Raghavan7, Wing Commander Arifur Rahman Khan And B
Aleya Sultana & Ors. v. DLF Southern Homes Private Limited8
and Ireo Grace Realtech Private Limited v. Abhishek Khanna &
Ors9, the appellants have contended that the terms of the ABA are
unconscionable. In Central Inland Water Transport Corporation
Ltd. case (supra), clause 9(1) of Central Inland Water Transport
C
Corporation Ltd. Service Discipline and Appeal Rules, 1979, providing
for termination of a permanent employee subject to three months’ notice
was challenged as being violative of Article 14 of the Constitution of
India. Upholding the judgment of the Calcutta High Court declaring the
said rule as void, this Court observed that Rule 9(1) was opposed to
public policy and was void under Section 23 of the Indian Contract Act, D
1872. Delay in handing over possession of the flat to the purchaser was
the subject matter in Pioneer Urban Land & Infrastructure Limited
(supra). The purchaser in that case filed a consumer compliant seeking
refund of the amount paid by him in view of the delay in handing over
possession of the flat along with interest, which was allowed by the E
National Commission. The builder approached this Court challenging
the order passed by the National Commission. The order of this Court
upheld the order of National Commission while observing that the contract
between the parties therein was one sided. As the builder could not fulfil
its contractual obligation in offering the possession of the flat within a
reasonable period, this Court directed refund of the entire amount F
deposited by the purchaser. Similarly, the issue that fell for consideration
in Wing Commander Arifur Rahman Khan and Aleya Sultana (supra)
was whether the flat buyers were constrained by the stipulation in clause
14 of apartment buyer agreement which provided for compensation for
delay in completion of the project @ Rs.5/- per sq. feet per month. After G
examining the agreement, this Court held that the agreement was one
6
(1986) 3 SCC 156
7
(2019) 5 SCC 725
8
(2020) 16 SCC 512
9
(2021) 3 SCC 241 H
74 SUPREME COURT REPORTS [2022] 8 S.C.R.
A sided as it provided for payment of interest rate @ 15% per annum by
the allottee in case there is delay of payment in accordance with schedule
as opposed to the stipulation of compensation @Rs. 5/- per sq. ft per
month in case of delay on the part of the builder in completion of the
project. In view of the said conditions, this Court was of the opinion that
the agreement is one sided and therefore, the consumer fora have
B
jurisdiction to award compensation more than what was agreed upon by
the parties in the agreement. In Ireo Grace Realtech Private Ltd.
case (supra), the order of the National Commission directing refund of
amount deposited by purchasers along with appropriate compensation
was approved by this Court. The concerned apartment buyer’s agreement
C was examined therein and it was held that the consumer fora have the
jurisdiction to award just and reasonable compensation as an incident of
their power to direct removal of deficiency in service.
23. There is no quarrel with the proposition in Central Inland
Water Transport Corporation (supra) that an unconscionable term in
D a contract is void under Section 23 of the Indian Contract Act, 1872.
The other cases relied upon by the appellants pertain to disputes under
the Consumer Protection Act. All the three cases relate to either refund
of the amounts deposited by the flat buyers or payment of compensation
for delay on the part of the builder in handing over possession of the flats
on a clear finding of fact that the delay in handing over possession was
E solely attributable to the builder. After examining the terms of the
Agreement in those cases, this Court was of the opinion that entitlement
of the flat buyers to compensation for deficiency in service on the part
of the builder cannot be restricted by the agreements which are one
sided. The said judgments are not applicable in the instant case. The
F reliefs claimed in the above cases are completely different from the
main reliefs in the present case. In the cases cited above, the grievance
of the flat buyers was that since there had been a substantial delay in
delivery of the apartments, the buyer should be entitled to terminate the
agreement and to recover the amounts already paid along with just and
reasonable interest/compensation which could not be confined to the
G terms as stated in a one-sided agreement. As against this, the appellants
in this case are essentially seeking possession of the apartments by
declaration of termination of the agreement by the respondent to be
void, without having to pay any money towards extra charges or even
the basic sale price. There has been no specific reference to any clause
H in the ABA by which the appellants appear to be aggrieved so as to
B.B. PATEL & ORS. v. DLF UNIVERSAL LTD. 75
[L. NAGESWARA RAO, J.]
shock the conscience of this Court to travel beyond its terms in light of it A
being an unconscionable contract.
24. There is an averment in para 16 of the complaint that ABA is
an unconscionable contract opposed to public policy as a consumer has
no bargaining power and is an easy victim of unfair trade practice. There
is no reference to any clause of the ABA, in particular, to substantiate B
the allegation. On the other hand, the appellants repeatedly refer to the
allegation of delay in handing over possession and imposition of extra
charges apart from non-refund of interest on the amounts paid by them.
The appellants are not entitled to any relief on this count as we have
already approved the order of MRTP by holding that there is no unfair
trade practice on the part of the respondent. The compensation sought C
by the appellants cannot be granted as Section 12-B of MRTP Act
empowers the Commission to grant compensation only when any loss or
damage is caused to a consumer as a result of a monopolistic, restrictive
or unfair trade practice10. As the appellants have failed to prove unfair
trade practice on the part of the respondent, they are not entitled to any D
compensation.
25. The learned Senior Counsel for the respondent submitted that
the price of each flat is Rs.3.25/- crores today. In response to the
suggestion made by this Court, he obtained instructions from the
respondent and submitted that the respondent is willing to handover the E
flats provided the appellants pay the balance amount payable i.e.,
Rs.31,52,933/- for each flat. The breakup of Rs.31,52,933/- is given as
follows: -
F
G
26. It is settled law that final relief granted by this Court need not
be the natural consequences of the ratio decidendi of its judgment.
10
Girish Chandra Gupta v. U.P. Industrial Development Corn. Ltd. & Ors., (2012) 13
SCC 452 H
76 SUPREME COURT REPORTS [2022] 8 S.C.R.
A (See: Sanjay Singh & Anr. v. U.P. Public Service Commission &
Anr.11 and U.P. Public Service Commission v. Manoj Kumar Yadav
& Anr.12). Though, we have upheld the order of MRTP Commission, in
the interest of justice, the respondent shall handover possession of the
flats to the appellants on payment of Rs.25,00,000/- (Rupees Twenty-
Five Lakhs Only) for each flat by the appellants.
B
27. For the foregoing reasons, the appeal is disposed of with a
direction to the appellants to pay Rs.25,00,000/- (Rupees Twenty-Five
Lakhs Only) for each flat within a period of four weeks from today and
the respondent shall handover possession of the flats to the appellants
C within a week from the date of payment.
Divya Pandey Appeal disposed of.
D
E
F
G
11
(2007) 3 SCC 720
12
H (2018) 3 SCC 706
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