DR. MANJEET KAUR MONGA (DEAD) THR. HER LEGAL HEIRS KARAN VIR SINGH MONGAversusK. L. SUNEJA & ORS.

                      [2017] 6 S.C.R. 453



      DR. MANJEET KAUR MONGA (DEAD) THR. HER                            A
        LEGAL HEIRS KARAN VIR SINGH MONGA
                                v.
                      K. L. SUNEJA & ORS.
               (Civil Appeal Nos. 5032-5033 of 2016)                    B
                           JULYIS,2017
        [KURIAN JOSEPH AND R. BANUMATHI, JJ.]
        Compensation:
         Complaint against builder - Before Competition Appellate       C
Tribunal alleging that cancellation of house allotment by the builder
was arbitrary, illegal and capricious - Seeking possession of the
flat - Tribunal awarded compensation by invoking s.12-B of
Monopolies and Restrictive Trade Practices Act directing to pay
the entire amount deposited by the complaint (Rs.4,53,8501-) with       D
compound interest @ 15% per annum from the date of deposit till
the date of cancellation i.e. 30.4.2005 - On appeal, held: The amount
 @ 15% compound interest on the amount deposited was the
compensation amount awarded u/s. 12B - The pay order (dated
 30.4.2005) of the amount which the builder sent to the complainant
 with the cancellation order (which was not received by the             E
 complainant) was re-credited to the account of the builder only on
 22.6.2016 - Matter remitted to the Tribunal with the direction that
 the Bank would be impleaded as party; that builder shall pay
 compensation @ 15% compound interest; and that the Tribunal io
 determine whether compensation was required to be paid ajfer
                                                                        F
 30.4.2005 and that whether the Bank was liable to pay any interest
 to the builder - Monopolies and Restrictive Trade Practices Act,
 1969 - s.12B.
        Disposing of the appeals, the Court

        HELD: 1. The amount referred to as compensation under           G
Section 128 of Monopolies and Restrictive Trade Practices Act,
1969, 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
                                                                        H
                                 453
454            SUPREME COURT REPORTS                      [2017] 6 S.C.R.


A     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
      theAct. [Para 5) [459-DI
              2.1 When the builder company had taken the pay order
B     from the Citibank on 30.04.2005, the amount of Rs.4,53,750/-
      c'overed 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. The account holder cancelled the
      pay order and requested for re-credit of the amount and,
C     accordingly, the Citibank has re-credited the amount to the
      account only on 22.06.2016. Plea of the account holder company
      (builder) was 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 for the
      period after the cancellation of the allotment. [Para 6) [459-F-G]
D
             2.2 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 undue advantage. [Para 6] [459-H, 460-A]

 E          Citibank N.A. v. Hiten P. Dalal and Others (2016) 1
            SCC 411 : [2015] 9 SCR 583 - referred to.

            2.3 The plea of Citibank is 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
 F 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
 G saddled with any interest. [Para 7] [460-B-C]
              2.4 These aspects have not been canvassed and gone
      into by the Tribunal because the Citibank was not before the
      Tribunal. Therefore, the matters are remitted to the Competition
      Appellate Tribunal. [Paras 8, 10) [460-D, G-H)
H
   DR. MANJEET KAUR MONGA (DEAD) v. K. L. SUNEJA                                 455
                     & ORS.

                         Case Law Reference                                      A
[2015] 9 SCR 583                   referred to                   Para6


       CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
5032-5033 of2016.                                                                B
       From the Judgment and Order dated 03.08.2015 of the
Competition Appellate Tribunal at New Delhi in Unfair Trade Practice
Enquiry No.90 of2005 and Compensation Application No. 39 of2009
                                WITH
                                                                                 c
       C. A. Nos. 9225-9226 and 9223-9224 of 2017.
        Debesh Panda, Milind Kumar, Ms. Suruchi Suri, Avinash Kumar,
Nikilesh Ramachandran, Mayank Wadhwa, Advs. for the Appellant.
       The Judgment of the Court was delivered by
      KURIAN, J. I. Leave granted in SLP(C) Nos.10484-10485/                     D
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/          E
2005 and Compensation Application No.39/2009 Paragraph nos.37 and
42 to 44 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           F
         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       G
         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
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456   SUPREME COURT REPORTS                            [2017] 6 S.C.R.


A     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
B
      price and the respondents committed grave illegality by
      cancelling the allotment.
              xxx              xxx               xxx
              xxx              xxx               xxx
c     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
D     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
 E    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 ofRs.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
 F    return the installments deposited by Smt. Gursharan Kaur and
      the complainant. The amount was returned only along with the
      cancellation letter and, as mentioned above, the complainant
      had returned the pay order with the legal notice sent on
      07.09.2005.

 G    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 ofinstallmerits deposited
      by Smt. Gursharan Kaur and the complainant totalling
H
   DR. MANJEET KAUR MONGA (DEAD) v. K. L. SUNEJA                                 457
                & ORS. [KURIAN, J.]

         Rs.4,53,850/- was retained by the respondents for a period              A
         ranging from 15 years to more than 12 years, Ifeel 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             B
         of in the following terms :
        (i) It is declared that the respondents have acted in violation of
       Section 36-A(l)(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           C
       deliver possession of Flat B-301 in Siddharth Shila Apartments is
       rejected,
       (iii) The respondents are directed to pay compound interest @
       15% per annum to the legal representatives of the complainant.
       The interest shall be calculated on each instalment paid by Smt.          D
       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)         E
       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               F
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.
                                                                                 G
         4. It is the contention of the respondents, who have filed separate
appeals arising from SLP(C) Nos. I 0484-10485/2016 and SLP(C)
Nos. I 0481-10482/2016, 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
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458            SUPREME COURT REPORTS                           [2017] 6 S.C.R.



A     only the amount determined under Section I 2B 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. (I)
              Where, as a result of the monopolistic or restrictive, or unfair,
B             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
c             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
.D            compensation for the loss or damage so caused.

              (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
E             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
F             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
G             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.
H
    DR. MANJEET KAUR MONGA (DEAD) v. K. L. SUNEJA                              459
                 & ORS. [KURIAN, J.]

         (4) Where a decree for the recovery of any amount as                  A
         compensation for any loss or damage referred to in sub-section
         ( 1) 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-              B
         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 (5of1908), 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
                                                                               c
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   D
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 l 2B of the Act.

          6. During the course of hearing of the appeals another interesting
point came up for consideration. It has been brought to the notice of this E
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 ofRs.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. F
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 G
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 H
460             SUPREME COURT REPORTS                          [2017] 6 S.C.R.



A     advantage as held by this Court in Citibank N.A. V. Hiten P. Dalal and
      Others, (2016) I 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
B     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
C     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 oflndia in that regard.

              8. We find from the order of the Tribunal that both the issues
D     have not been gone into, apparently because these aspects have not
      been canvassed and obviously because the Citibank was not before the
      Tribunal.

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

 F               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
 G           the Tribunal.

             IO.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
 H    in respect of the issues remitted to the Tribunal.
  . DR. MANJEET KAUR MONGA (DEAD) v. K. L. SUNEJA                               461
                 & ORS. [KURIAN, J.]

        12. With the above observations and directions, the appeals are         A
disposed of.

         13. Pending applications, ifany, shall stand disposed of.

         14. There shall be no orders as to costs.
                                                                                B
Kalpana K. Tripathy                                      Appeals disposed of.