Decided on January 25,1994



Sardar Ali, Member - (1.) THIS order will dispose of an application under Section 12A of the Monopolies and Restrictive Trade Practices Act, 1969, filed by the complainant against the respondent. The application has been filed by Shri Prem Kumar Kapoor, director of the complainant-company incorporated under the Companies Act, 1956, as a private limited company. The respondent according to the complainant is an undertaking engaged in providing services relating to development, allotment and maintenance of commercial complexes. It is alleged, by the complainant that on coming to know of the respondent's intention of carving out a few shops and giving them on licences in a hall adjacent to the Bank of Baroda branch at the shopping-cum-commercial complex at Yashwant Place, they had applied for allotment of a shop with a request to fix the licence fee at a reasonable rate. It is also the case of the complainant that they were allotted a shop measuring about 420 square feet at Rs. 31 per square foot, plus its 5 per cent. on April 24, 1992. In the letter of allotment (as annexure 3 to the complaint) it was mentioned under the terms contained therein that the execution of licence deed on pro forma will be sent in due course. However, as demanded by the respondent, Rs. 94,626 were also made by the complainant.
(2.) It is further alleged that the respondent also carved out other shops in the same hall and had been allotted by the respondent at Rs. 15 per square foot at a rate less than half of the rate fixed and charged by the complainant. The representation of the complainant for lower rate was not considered by the respondent on the plea that the rates were fixed according to the guidelines issued by the New Delhi Municipal Committee. On January 5, 1993, arguments were heard on the complaints and notice of the applications as well as injunction application was issued and made returnable on January 14, 1993. On January 14, 1993, it was observed by the Commission from the correspondence on record that the offer of allotment was made by the respondent to the complainant, vide their letter dated April 24, 1992, subject to payment of a certain amount and other formalities. It was further observed that thereafter certain correspondence was exchanged between the parties. The deposit of the amount demanded was also not disputed. But subsequently respondent No. 2, vide their letter dated October 28, 1992, stated that action for cancellation of the allotment of the premises shall be initiated unless some other outstanding points of controversy were not settled in time. A number of prayers were made in the application by the applicant for temporary injunction, as filed on behalf of the complainant, but in the absence of clear facts in regard to the factual correctness and validity of the points raised in the complaint, it was not considered appropriate to issue temporary injunction in respect of all those prayers unless the respondents file a written reply to the application. However, the Commission was satisfied that ex facie there was a matter to be investigated and was directed to be prevailed. The respondent was further restrained in the meantime from cancelling the allotment or taking any action for dispossesion of the petitioner from the place in question and the respondent was granted four weeks' time to file the reply. The respondent has filed the reply to the complaint with a request that the reply may also be treated as a reply to the injunction application on March 11, 1993. However, the limited order of January 14, 1993, was ordered to be continued. The respondent was also directed to bring a copy of the guidelines relevant to the point in issue on the next date. The respondent negated the request of the complainant and stated claiming the licence fee from the date of allotment letter and also started pressing for signing of the blank licence deed. Both the objections were resisted by the applicant. The licence fee claimed from the day of allotment was resisted since the respondent had not delivered the possession. The respondent, vide their letter dated September 30, 1992, served on the complainant a show-cause notice, inter alia, demanding further sum of Rs. 40,000 up to September 30, 1992, and also threatened that other formalities be completed within seven days or the allotment will be cancelled. The show-cause notice was replied to by the applicant with a request to review the rates being charged by the respondent and it was further stated in the reply that the respondent ought to act fairly and should not discriminate between two shop owners. A copy of the guidelines for fixing of the rates issued by the respondent was also sought. It was also stated that unless the shop was ready and possession handed over, there cannot be any question of payment of licence fee as the same could be charged from the day of handing over possession to the complainant.
(3.) THE respondent in addition to the previous letter dated July 27, 1992, also threatened in the same fashion and the complainant replied, vide their letter received by the respondent on November 5, 1992, stating that the execution of the lease deed was not possible unless the essential insertions as to the area of the lease deed was measured and filled up. However, the complainant under protest paid a further amount of Rs. 40,000 as licence fee up to September 30, 1992, totalling Rs. 1,34,626 without being given possession of the shop.;

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