Kerala High Court
Case BriefsHigh Courts

Kerala High Court: Shaji P. Chaly, J. allowed the writ petition for the payment of the balance outstanding amount on the ground of unforeseen circumstances.

Easwaran and M.A. Augustine, counsels for the petitioner submitted that there was an agreement between the petitioner and respondent for the collection of the toll of the over bridge. The petitioner, as per the terms was making the monthly installments in the terms of the contract. It was further submitted that the petitioner was a contractor in the respect of the other bridge named as Koyilandi Rail over bridge. The petitioner reiterated that he was making monthly installments in accordance with the terms of the contract but due to unforeseen circumstances, there was no collection of a toll as was expected and thus was not able to pay the amount on time. Thus, prayed for paying the amount in installment rather than a lump sum.

Vijaya Kumar, counsel for the respondent admitted affirmatively regarding the delay in payments which were not made according to terms and condition of the contract.

The court opined that as the petitioner was ready to pay the amount in both the contract and therefore no action can be brought against the parties. The court also took into the account the adverse economic situations prevailing in the community and directed the petitioner to the pay the amount in the installment, and made the condition that “if the petitioner violated the direction the respondent will be at liberty to recover the amount in lump sum accordance with the law”.[C.H Pavithran v. Roads and Bridges Development Corporation of Kerala, 2019 SCC OnLine Ker 1662, decided on 29-05-2019]

Case BriefsHigh Courts

Bombay High Court: In an interesting case, M.G. Giratkar, J., maintained conviction of a journalist for the offence of extorting money from the complainant — an old man, around 72 years of age.

Sonba Bhaisare (complainant) sold certain land after getting it converted from agricultural to non-agricultural. It was alleged that the accused, a journalist by profession, met Sonba Bhaisare time and again and threatened him to publish reports against as the subject land was a bhoodan land and therefore the conversion was illegal. He also threatened to file a PIL and further threatened to make complaint to the Collector and get the houses built on the subject land demolished it. It was further alleged that the accused demanded Rs 50,000 to refrain from his activities which was agreed to by Sonba after initial reluctance. However, Sonba made a complaint to the Police who laid a trap and caught the accused taking an installment of Rs 10,000 from Sonba in a temple as agreed between them. Consequently, the accused was convicted under Sections 384 and 385 IPC by the trial court which was upheld by the first appellate court. Aggrieved thereby, the accused filed the present revision petition.

Noting all the facts of the case, the High Court was of the view that the trial court’s judgment needs to be upheld. Reflecting on the conduct of the accused, the Court stated, “intention of the accused is very clear to extract the money from the complainant and others. He was threatening them. Not only threatening but also filed PIL. Therefore, activities of the accused clearly show that he is a person who might have earned money by such tactics from various persons.” Observing that “all the illustrations to Section 384 show that even a threatening by journalists who are reporters to publish news in a newspaper to defame a person amounts to extortion”, the Court went to hold that the prosecution was able to prove the case against the accused beyond reasonable doubt and hence his conviction was maintained.

Lastly, regarding leniency in sentencing, the Court observed, “This type of crimes are increasing day by day, by threatening the officers or innocent persons. They are extracting money in the name of journalists. The accused has misused his position and threatened the complainant and purchasers, therefore, he is not entitled to any kind of leniency”. [Sharad Balkrushna Deotale v. State of Maharashtra, 2019 SCC OnLine Bom 305, dated 21-02-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Competition Commission of India (CCI): The 3-Member Bench comprising of Sudhir Mital (Chairperson), Augustine Peter and U.C. Nahta (Members), while pronouncing an order under Section 26(2) of the Competition Act, 2002, dismissed the case in light of no contravention being found as alleged of the provisions of Sections 3 and 4 of the Competition Act, 2002.

The facts of the case are that the Informant had filed the present information under Section 19(1) (a) against OP-1, i.e. Vatika Ltd. and OP-2, i.e. Confederation of Real Estate Developers’ Associations of India (CREDAI) for contravention of Sections 3 and 4 of Competition Act, 2002. The informant had purchased a plot in a township being developed by OP-1 in Gurugram, Haryana. Informant had opted for a “construction linked payment plan” in which he had to pay the total amount within a span of 3 years. Once the initial payment was duly paid a plot was allotted to the informant and further, the agent asked the Informant to sign the buyer’s agreement which was jointly signed by the Informant and his son.

As per the payment plan, the Informant had deposited the second installment and was asked to make the third installment within 15 days when initially at the time of making application for the plot it was decided that the third installment would be payable in 8 to 9 months from the date of booking. For the payment of the third installment, demand letter from OP-1 started to flow and on being asked about the same by informant it was reasoned that because of the construction work had been completed upto the 5th installment plan.

The Informant further stated that, on mailing several queries due to being aggrieved by the above stated circumstances and seeking clarifications on the same, but no reply being received in this regard, the Informant had to send out a legal notice to OP-1 reiterating the details of the one-sided communication to which the response was that the Informant had defaulted in payment of installment and as a consequence the amount already paid by the informant had been forfeited, therefore the Informant was not liable to any refund.

Allegations by the Informant:

  • OP-1 abused its dominant position; by refusing to visit the site, unfair terms of the Buyer’s Agreement, unreasonable demand of instalment payments and not responding to queries which ultimately places the OP-1 in the position of abuse of dominance in the relevant market of residential plots by violating Section 4(2)(a)(i) of the Competition Act, 2002
  • Cartelisation: OP-2 and its members including OP-1 have indulged in common practices by incorporating standard clauses in their agreements.

The Commission on perusal of the information and submissions of the parties has stated that it disagrees with the Informant’s submission that the relevant geographic market should be delineated as “Northern Peripheral Road Corridor.” There are various residential projects in Gurugram other than the projects in Northern Peripheral Road Corridor which could have been considered by consumers desirous of purchasing a residential plot. It is noted that the Informant has assessed the dominance of OP-1 as per the relevant geographic market defined by him. “The Commission notes that OP-1 faces sufficient competitive constraints from various other competitors and would not be able to operate independently of the competitive forces prevailing.”

Therefore, in view of the above-stated allegations and Commission’s view in that respect, no case of contravention of the provisions of Section 3 and 4 arise against the OP. [Ranjit Singh Gujral v. Vatika Ltd., 2018 SCC OnLine CCI 84, dated 16-10-2018]

National Consumer Disputes Redressal Commission
Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): A Single Member Bench of V.K. Jain, J., allowed an appeal filed against the order of the State Commission.

The respondent was allotted a flat in a project which was to be developed by the appellant company. The respondent paid more than 50% of the cost of the flat to the appellant on different occasions, however, he defaulted in paying one installment to the appellant. On account of failure to pay the installment after 2 reminders, the appellant cancelled respondent’s allotment and forfeited the money already received.

The main issue that arose before the Commission, in this case, was whether the appellant was justified in canceling the allotment on account of one default.

The Commission observed that the respondent had undoubtedly defaulted in making payment of an installment even though two reminders were sent to him. The respondents had not even cited any reason for their failure to make the payment or that the payment was not made for reasons beyond their control. The Commission further observed that the respondent had raised a false plea about the discount of 5% to be offered by the appellant. The appellant being a private builder required money to complete construction within time limit agreed between the parties.

The Commission held that in the facts and circumstances of the case, the appellant was justified in cancelling the allotment of the respondent and forfeiting the earnest money. However, the Commission also held that the appellant cannot deduct more than the earnest money out of the amount paid to it by the complainants. The tribunal referred to the case of DLF Ltd. v. Bhagwanti Narula, I (2015) CPJ 319(NC) and held that an amount exceeding 10% of the total price cannot be forfeited by the seller, since forfeiture beyond 10% of the sale price would be unreasonable and only the amount, which is paid at the time of concluding the contract can be said to be the earnest money. Hence the Commission allowed the appeal but it also directed the appellant to refund the money above the earnest money forfeited by it. [Prateek Realtors (P) Ltd. v. Vivek Kumar Gupta,2018 SCC OnLine NCDRC 378, order dated 08-10-2018]