1. IN a complaint filed by Shri Prem Kumar Gupta - the complainant has charged the respondents viz. M/s. Maxworth Orchards (INdia) Ltd. & Ors. for having adopted and indulged in unfair trade practices within the meaning of Section 36A read with Section 36B of the Monopolies and Restrictive Trade Practices Act, 1969 (in short, Act). For having suffered loss on account of such unfair frade practices on the part of the respondents, compensation at Rs. 50,000/- for the mental agony in addition to refund of twice over the amount of deposited with the respondents along with interest @ 25% per annum from the date of receipt till the date of realization, has been claimed in an application made separately under Section 12B of the Act. As both the application as well the complaint petition arise from the same cause of action pertaining to the same subject-matter, they are disposed of by a common order.
2. BRIEFLY stated, the common facts in both the complaint petition as well the compensation application are that the respondents Company - M/s. Maxworth Orchards (India) Limited is engaged in the business of selling Orchards in different States of India. Representations were made through advertisement in the newspapers, by issue of pamphlets and through the sales representatives that for a consideration, a party can acquire land, which forms part of the ''Scheme Orchards''. This would be along with income arising out of agricultural operations to be carried on, on the aforesaid land. The registration of the sale deed of the land would be done within a period of 180 days from the date of realization of the entire consideration and cost of maintenance is to be indicated in the agreement accompanied with the schedule. The respondent No. 1 on its part, after carrying out the survey, demarcation, clearing and other related operations on the land would cultivate the land on behalf of the Orchards''s owner. The cultivation would be on the strength of drip irrigation system or any other superior irrigation system depending upon the crop to be cultivated on the scheduled property. The respondents would not have a right over the scheduled property or the trees grown thereon or the produce out of the same, except for the condition in Clause 7(b) of the agreement. Allured with the representation so made, the applicant/complainant along with his wife Mrs. Veena Gupta applied for an Orchard measuring 1 acre in one of their projects being known as Max-Kakrola Project in the State U.P. It paid an amount of Rs. 1,22,550/-. This was towards full and final price of the Orchard. The respondent sent the agreement to the applicant/complainant for its signatures on 26.11.1996, which was stated to have been returned to the respondent after doing the needful. Despite that the deed was not registered within 180 days as promised. The matter was taken up with the respondents and after lapse of 11 months, the respondents intimated that they were not in receipt of the copy of the agreement signed by the applicant/complainant. Subsequently, various reminders were given in response to which respondent No. 3 intimated that they were facing a serious cash crunch problem and as such the project could not be fully developed. They also promised that sale deeds would be ready for delivery by December, 1997. However, this was not done and in absence of any further response from the respondents, the applicant/complainant filed both the complaint petition under Section 36B of the Act and the application under Section 12B of the Act.
Notice in respect of both the complaint petition as well the compensation application was issued to the respondents. As neither proceedings were represented to by and on behalf of the respondents nor any reply was filed, the proceedings were set ex-parte against the respondents vide Commission''s order dated 17.11.1999. The applicant filed an affidavit of evidence along with the documents relied upon in support of its case. The ex-parte arguments were also advanced by Shri Vivek Kudesia on behalf of the applicant/complainant.
As the proceedings have not been contested at any stage the unfair trade practices as alleged are deemed to have been established against the respondents. From the perusal of the supporting documents placed on record by and on behalf of the applicant, we find that the applicant vide Customer Code No. NLD 70019 applied for land of one acre under Kakrola (Mango) Project in village Tatarpur. It paid a sum of Rs. 1,22,550/- vide Cheque/Demand Draft No. 1018 dated 10.9.1996. The deposit as made was duly acknowledged by the respondent''s letter dated 31.3.1997. In response to the applicant''s letter dated 8.8.1997 (Annexure ''E'') asking for registration of the Orchard, the respondents in turn asked the applicant for return of the copy of the agreement duly signed by it. On 17.9.1997, the applicant again reminded the respondents that as the signed copy of the maintenance agreement as demanded stood collected by the representative of the respondents'' authority, the needful be done. Subsequently, the applicant/complainant was informed of the cash crunch faced by the respondent because of which the project could not be fully developed. At the same time it assured the applicant that needful would be done and the applicant would be duly compensated for the delay. This was, however, never to be. Documents on record, on the other hand, reveal that till 8.11.1998 the respondents were in touch with the applicant in regard to the progress made in the project. Thereafter, there was no communication on their part in regard to either the completion of the project or the refund of the amount. No contrary evidence to the one brought on record is there. On the other hand we find that tall promises were made to the public in terms of registering the Orchard measuring one acre in any of their projects for the consideration to be paid and ensuring the agricultural yield from the aforesaid project which is to be maintained by the respondent for the maintenance charges to be paid by the investor, were not fulfilled both in regard to time frame and the actual performance of the acts. As this was not sufficient, even the amount paid has not been refunded back so far. Thus, on account of misrepresentation on the part of the respondents regarding the quality and performance of the service, the case clearly falls under the ambit of Section 36A of the Act. In the premises, the respondents are directed to cease from carrying on such practices forthwith and desist from following the same in future.
3. AS a result of unfair trade practices on the part of the respondents, the applicant has suffered monetary loss in terms of deprivation of income/interest on the amount invested for the period it remained with the respondents. Accordingly, it is entitled to its own invested amount with interest @ 18% per annum, as awarded in other similar matters, from the date of deposit till the date of payment. Cost for legal expenses is also awarded at Rs. 3,000/-. The claim for 50,000/- for mental agony is not allowable in view of the judgment of the Hon''ble Supreme Court in case of Ghaziabad Development Authority v. Union of India & Ors., reported in II (2000) CPJ 1 (SC)= IV (2000) SLT 654=JT 2000 (7) SC 256. The respondents shall give effect to this order within six weeks from the date of receipt of the order and file an affidavit of compliance within four weeks thereafter. C.A. disposed of.
