Full Judgment Text
I-14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 01.06.2011
+ R.S.A.No. 80/2003 & CM Nos. 3148/2009 ( U O 41 R-27
CPC) & 253/2003 (for stay)
LAMBA PRESS AND SHEARA PVT. LTD.
………..Appellant
Through: Mr. Sumit Bansal along with
Mr. Vaibhav Arora, Advocates.
Versus
UNION OF INDIA & ORS.
…….Respondents
Through: Ms. Anusuya Salwan along
with Ms. Neha Mittal,
Advocates.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
1. This appeal has impugned the judgment and decree dated
14.02.2003 which had endorsed the finding of the trial judge
dated 08.03.2001 whereby the suit filed by the plaintiff seeking
relief for permanent and mandatory injunction to the effect that
RSA No. 80/2003 Page 1 of 10
the defendant be restrained from transferring/parting with the
possession of the disputed plot (i.e. plot no 209/3, Block-C,
Mayapuri Industrial Area, Phase-II, New Delhi measuring 525.93
sq. mts) had been dismissed.
2. The case of the plaintiff is that it was a company having
successfully bid at the auction of the defendant/Delhi
Development Authority (DDA) held on 23.12.1988. The plaintiff
being the successful bidder; 25% of the bid amount i.e. Rs.
6,70,000/- had been paid on the date of the auction and the
balance 75% had to be paid within next 30 days, i.e. by
23.01.1989. Contention of the plaintiff is that the land was
encroached upon by jhuggis; he made several communications to
the department including his letters dated 05.01.1989 as also
09.01.1989 requesting them to remove the said encroachment in
order that he could make the payment of the balance amount;
DDA had, however, failed to adhere to this request; the proposed
action of the DDA seeking to cancel his plot was illegal and
arbitrary; present suit was accordingly filed.
3. In the written statement, defense was that the plaintiff had
paid 25% of the bid amount; auction was on and as is where is
basis; the site was inspected by the plaintiff prior to making his
bid; it was denied that the plaintiff learnt about this encroachment
RSA No. 80/2003 Page 2 of 10
after he had effected the bid; it was stated that the plaintiff had
bid after due inspection of the site; letter dated 05.01.1989 was
not disputed but its contents were denied; it was denied that the
plaintiff was ready and willing to make the payment of the balance
amount of 75% within time.
4. On pleadings of the parties, following issues were framed:-
1. Whether the suit of the plaintiff is liable to be
dismissed in the absence of notice U/s 53 B of DD Act? OPD
2. Whether the suit is not maintainable in the present
form? OPD
3. Whether the plaintiff is liable to pay the court fees on
the market value of the land? OPD.
4. Whether the plaintiff is entitled to the relief claimed?
OPP
5. Relief.
5. Oral and documentary evidence was led.
6. Suit of the plaintiff was dismissed. Trial judge was of the
view that the plaintiff had failed to deposit 75% balance amount
within the stipulated time. This period could not have enlarged;
he was not entitled to any relief.
7. This finding was endorsed in the first appellate court.
8. This is a second appeal. It is yet at the stage of admission.
RSA No. 80/2003 Page 3 of 10
Substantial question of law had been embodied at page 7 of the
body of the appeal.
9. On behalf of the appellant, it has been urged that the
impugned judgment suffers from an illegality as it has failed to
consider the law laid down by this court in the Judgment reported
in 2003 VIII AD (Delhi) 461 Jakson Engineers Pvt. Ltd. Vs. Delhi
Development Authority and Ors. as also the Judgment of the
Division Bench reported in 1996 (39) DRJ DDA Vs. Jackson
Engineers Pvt. Ltd (page 1). It is pointed out that both these
judgments had on similar facts; held that where there is an
encroachment and the land is not vacant, it was the obligation of
the DDA to remove the encroachment; in the absence of this
obligation having been performed by the public department; the
plaintiff had rightly not paid the balance amount within the
stipulated period; on the ratio of the aforenoted pattern, the
plaintiff is entitled to relief.
10. Arguments have been countered. Learned counsel for the
respondent has pointed out that the period of payment of the
balance could not be extended on any count, reliance has been
placed upon the Judgment reported in 56 (1994) DLT 37 M/S.
Behere Brother Vs. Delhi Development Authority and Another as
also another Judgment of this Court reported in 71 (1998) DLT
RSA No. 80/2003 Page 4 of 10
642 V.K. Khosla Vs. Union of India & Ors. It is pointed out that
both these judgments had examined the Delhi Development
Authority (Disposal of Developed Nazul Land), Rules, 1981 and in
this context, it noted that prior to 25.02.1989, there was no
discretion even for a sufficient reason to extend the last date of
payment in an auction bid; it is pointed out that the instant case
clearly relates to the period prior to 25.02.1989; appellant is not
entitled to any relief. It is further submitted that the department
had rightfully forfeited the amount and for this proposition
reliance has been placed upon the Judgment reported in 69 (1997)
DLT 716 Aggarwal Associates (Promoters) Ltd. Vs. Delhi
Development Authority & Anr.
11. On the last argument urged by the learned counsel for the
respondent, counsel for the appellant has no quarrel; it is not in
dispute that if the allotment of the plot is not granted in favour of
the appellant/plaintiff, there is no dispute that the amount of
earnest money deposited by the appellant can rightfully be
forfeited by the department.
12. There are two concurrent findings against the appellant.
Both fact finding courts below had noted that PW-3 had himself
come into the witness box and admitted in his cross-examination
that two to three days prior to the bid, he had inspected the site;
RSA No. 80/2003 Page 5 of 10
he had bid for the auction with his eyes open and 25% of the bid
amount i.e 6,70,000/-.had been deposited by him; terms and
conditions of the bid document are also not in dispute. It is also
not in dispute that within 30 days from 23.12.1988 i.e. by
23.01.1989, the balance amount of 75% had to be deposited by
the defendant. It is also not disputed that the said amount has not
since been deposited.
13. Learned counsel for the appellant in the course of these
proceedings had filed an application under Order 41 Rule 27 of
the Code wherein he has sought to place on record certain
documents which as per his content would advance his case and
would show that on the date of the auction, there were
encroachments found on the suit land. The documents sought to
be adduced by way of additional evidence have been noted. They
are notings of the department. These notings, in fact, negatived
the case of the appellant. Letter of 25.03.2004 reveals that the
plot seemed to be free from encroachment; noting of 29.03.2006
also states that on inspection of the site, plot was lying vacant.
On a specific query put to the learned counsel for the appellant,
there is a little answer; it is stated that this encroachment had
been removed only in 2004; even if this is correct, the documents
sought to be adduced by way of an additional evidence do not
RSA No. 80/2003 Page 6 of 10
support the contention that at the time when the auction was
conducted, there was an encroachment on the site. There is also
no sufficient reason or explanation as to why these documents did
not see the light in the two fact finding courts below. The
discretion of the second appellate court to admit additional
evidence under Order 41 Rule 27 of the Code is undisputed. It,
however, has to be exercised to meet the ends of justice and if the
said evidence is required for the just decision of the case, such an
application must also satisfy the court that in spite of due
diligence, appellant could not have adduced the said evidence in
the two courts below.
14. None of the aforenoted requirements have been met with.
The merits of the documents have also been adverted to; they do
not advance the submissions of the appellant. Application under
Order 41 Rule 27 had no merit. It is dismissed.
15. The case of the appellant is now hinged upon the judgments
relied upon by him and as noted supra. In the Judgment of the
Division Bench, the writ of mandamus which had been sought by
the petitioner had been declined. The Judgment of the Division
Bench was against an order passed in a petition under Section 20
of the Arbitration Act where there was a plea for the appointment
of the arbitrator; this plea has not been acceded to; the hardship
RSA No. 80/2003 Page 7 of 10
suffered by the respondent had been noted but no relief had been
granted to him. The Judgment of the Single Judge reported as
Jackson Engineers Pvt. Ltd (supra) is vehemently relied upon by
the learned counsel for the appellant. This Judgment is
distinguishable. In this case, site has not been inspected at the
time when the petitioner has made his bid on the auction. This is
clear from para 2 and 3; in this case, the petitioner had also
showed his bona fides by appending the balance amount of 75%
for which he had obtained a loan and the pay order in the said
amount had been affixed along with his petition; these
circumstances had been singled out to grant him the relief of an
allotment. Both these conditions are missing in the instant case.
In the case, the testimony of PW-3 shows that the site has been
inspected prior to the bid; plaintiff has bid with his eyes open,
fully aware of the physical status at site. Submission of the
learned counsel for the Department is that encroached plots carry
a lower bid and those which are vacant and free carry a higher bid
and this also has to be kept in mind; prices of the property vary
accordingly.
16 The willingness and readiness on the part of the petitioner
to perform his obligation has also not been satisfied. Letters
dated 05.01.1989 as also 09.01.1989, although are admitted to
RSA No. 80/2003 Page 8 of 10
have been received by the department but in the written
statement, content of letter dated 05.01.1989 had been
specifically denied; in this contingency it was incumbent upon the
plaintiff to have placed the said letter on record but it had not
done so. The first letter which was proved by the plaintiff is dated
25.01.1989; this was after 30 days from 23.12.1988 i.e.when 75 %
of the bid amount had to be deposited by him i.e. by 23.01.1989.
The first communication of the plaintiff proved on record is dated
25.01.1989 informing the department that there was an
encroachment and that is why he was not willing to pay the
balance amount; this was after the stipulated dated of 23.01.1989.
17 Division Bench of this court (in the judgments relied upon by
the learned counsel for the DDA) while examining the Nazul Rules
had noted that in auction bids for property prior to 25.02.1989,
there was no proviso to Rule 29; there was no scope of extension
of time for payment of the balance amount even if sufficient
reason has been explained; proviso has been inserted
only by the amendment of 25.02.1989; the case of the plaintiff is
prior to 25.02.1989. On this count also, extension of time could
not have been granted in favour of such party.
18 On no count does the impugned judgment suffer from any
infirmity. Substantial question of law is answered in favour of the
RSA No. 80/2003 Page 9 of 10
respondent and against the appellant. Appeal is without any
merit. Appeal as also the pending applications are dismissed.
INDERMEET KAUR, J.
JUNE 01, 2011
ss
RSA No. 80/2003 Page 10 of 10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 01.06.2011
+ R.S.A.No. 80/2003 & CM Nos. 3148/2009 ( U O 41 R-27
CPC) & 253/2003 (for stay)
LAMBA PRESS AND SHEARA PVT. LTD.
………..Appellant
Through: Mr. Sumit Bansal along with
Mr. Vaibhav Arora, Advocates.
Versus
UNION OF INDIA & ORS.
…….Respondents
Through: Ms. Anusuya Salwan along
with Ms. Neha Mittal,
Advocates.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
1. This appeal has impugned the judgment and decree dated
14.02.2003 which had endorsed the finding of the trial judge
dated 08.03.2001 whereby the suit filed by the plaintiff seeking
relief for permanent and mandatory injunction to the effect that
RSA No. 80/2003 Page 1 of 10
the defendant be restrained from transferring/parting with the
possession of the disputed plot (i.e. plot no 209/3, Block-C,
Mayapuri Industrial Area, Phase-II, New Delhi measuring 525.93
sq. mts) had been dismissed.
2. The case of the plaintiff is that it was a company having
successfully bid at the auction of the defendant/Delhi
Development Authority (DDA) held on 23.12.1988. The plaintiff
being the successful bidder; 25% of the bid amount i.e. Rs.
6,70,000/- had been paid on the date of the auction and the
balance 75% had to be paid within next 30 days, i.e. by
23.01.1989. Contention of the plaintiff is that the land was
encroached upon by jhuggis; he made several communications to
the department including his letters dated 05.01.1989 as also
09.01.1989 requesting them to remove the said encroachment in
order that he could make the payment of the balance amount;
DDA had, however, failed to adhere to this request; the proposed
action of the DDA seeking to cancel his plot was illegal and
arbitrary; present suit was accordingly filed.
3. In the written statement, defense was that the plaintiff had
paid 25% of the bid amount; auction was on and as is where is
basis; the site was inspected by the plaintiff prior to making his
bid; it was denied that the plaintiff learnt about this encroachment
RSA No. 80/2003 Page 2 of 10
after he had effected the bid; it was stated that the plaintiff had
bid after due inspection of the site; letter dated 05.01.1989 was
not disputed but its contents were denied; it was denied that the
plaintiff was ready and willing to make the payment of the balance
amount of 75% within time.
4. On pleadings of the parties, following issues were framed:-
1. Whether the suit of the plaintiff is liable to be
dismissed in the absence of notice U/s 53 B of DD Act? OPD
2. Whether the suit is not maintainable in the present
form? OPD
3. Whether the plaintiff is liable to pay the court fees on
the market value of the land? OPD.
4. Whether the plaintiff is entitled to the relief claimed?
OPP
5. Relief.
5. Oral and documentary evidence was led.
6. Suit of the plaintiff was dismissed. Trial judge was of the
view that the plaintiff had failed to deposit 75% balance amount
within the stipulated time. This period could not have enlarged;
he was not entitled to any relief.
7. This finding was endorsed in the first appellate court.
8. This is a second appeal. It is yet at the stage of admission.
RSA No. 80/2003 Page 3 of 10
Substantial question of law had been embodied at page 7 of the
body of the appeal.
9. On behalf of the appellant, it has been urged that the
impugned judgment suffers from an illegality as it has failed to
consider the law laid down by this court in the Judgment reported
in 2003 VIII AD (Delhi) 461 Jakson Engineers Pvt. Ltd. Vs. Delhi
Development Authority and Ors. as also the Judgment of the
Division Bench reported in 1996 (39) DRJ DDA Vs. Jackson
Engineers Pvt. Ltd (page 1). It is pointed out that both these
judgments had on similar facts; held that where there is an
encroachment and the land is not vacant, it was the obligation of
the DDA to remove the encroachment; in the absence of this
obligation having been performed by the public department; the
plaintiff had rightly not paid the balance amount within the
stipulated period; on the ratio of the aforenoted pattern, the
plaintiff is entitled to relief.
10. Arguments have been countered. Learned counsel for the
respondent has pointed out that the period of payment of the
balance could not be extended on any count, reliance has been
placed upon the Judgment reported in 56 (1994) DLT 37 M/S.
Behere Brother Vs. Delhi Development Authority and Another as
also another Judgment of this Court reported in 71 (1998) DLT
RSA No. 80/2003 Page 4 of 10
642 V.K. Khosla Vs. Union of India & Ors. It is pointed out that
both these judgments had examined the Delhi Development
Authority (Disposal of Developed Nazul Land), Rules, 1981 and in
this context, it noted that prior to 25.02.1989, there was no
discretion even for a sufficient reason to extend the last date of
payment in an auction bid; it is pointed out that the instant case
clearly relates to the period prior to 25.02.1989; appellant is not
entitled to any relief. It is further submitted that the department
had rightfully forfeited the amount and for this proposition
reliance has been placed upon the Judgment reported in 69 (1997)
DLT 716 Aggarwal Associates (Promoters) Ltd. Vs. Delhi
Development Authority & Anr.
11. On the last argument urged by the learned counsel for the
respondent, counsel for the appellant has no quarrel; it is not in
dispute that if the allotment of the plot is not granted in favour of
the appellant/plaintiff, there is no dispute that the amount of
earnest money deposited by the appellant can rightfully be
forfeited by the department.
12. There are two concurrent findings against the appellant.
Both fact finding courts below had noted that PW-3 had himself
come into the witness box and admitted in his cross-examination
that two to three days prior to the bid, he had inspected the site;
RSA No. 80/2003 Page 5 of 10
he had bid for the auction with his eyes open and 25% of the bid
amount i.e 6,70,000/-.had been deposited by him; terms and
conditions of the bid document are also not in dispute. It is also
not in dispute that within 30 days from 23.12.1988 i.e. by
23.01.1989, the balance amount of 75% had to be deposited by
the defendant. It is also not disputed that the said amount has not
since been deposited.
13. Learned counsel for the appellant in the course of these
proceedings had filed an application under Order 41 Rule 27 of
the Code wherein he has sought to place on record certain
documents which as per his content would advance his case and
would show that on the date of the auction, there were
encroachments found on the suit land. The documents sought to
be adduced by way of additional evidence have been noted. They
are notings of the department. These notings, in fact, negatived
the case of the appellant. Letter of 25.03.2004 reveals that the
plot seemed to be free from encroachment; noting of 29.03.2006
also states that on inspection of the site, plot was lying vacant.
On a specific query put to the learned counsel for the appellant,
there is a little answer; it is stated that this encroachment had
been removed only in 2004; even if this is correct, the documents
sought to be adduced by way of an additional evidence do not
RSA No. 80/2003 Page 6 of 10
support the contention that at the time when the auction was
conducted, there was an encroachment on the site. There is also
no sufficient reason or explanation as to why these documents did
not see the light in the two fact finding courts below. The
discretion of the second appellate court to admit additional
evidence under Order 41 Rule 27 of the Code is undisputed. It,
however, has to be exercised to meet the ends of justice and if the
said evidence is required for the just decision of the case, such an
application must also satisfy the court that in spite of due
diligence, appellant could not have adduced the said evidence in
the two courts below.
14. None of the aforenoted requirements have been met with.
The merits of the documents have also been adverted to; they do
not advance the submissions of the appellant. Application under
Order 41 Rule 27 had no merit. It is dismissed.
15. The case of the appellant is now hinged upon the judgments
relied upon by him and as noted supra. In the Judgment of the
Division Bench, the writ of mandamus which had been sought by
the petitioner had been declined. The Judgment of the Division
Bench was against an order passed in a petition under Section 20
of the Arbitration Act where there was a plea for the appointment
of the arbitrator; this plea has not been acceded to; the hardship
RSA No. 80/2003 Page 7 of 10
suffered by the respondent had been noted but no relief had been
granted to him. The Judgment of the Single Judge reported as
Jackson Engineers Pvt. Ltd (supra) is vehemently relied upon by
the learned counsel for the appellant. This Judgment is
distinguishable. In this case, site has not been inspected at the
time when the petitioner has made his bid on the auction. This is
clear from para 2 and 3; in this case, the petitioner had also
showed his bona fides by appending the balance amount of 75%
for which he had obtained a loan and the pay order in the said
amount had been affixed along with his petition; these
circumstances had been singled out to grant him the relief of an
allotment. Both these conditions are missing in the instant case.
In the case, the testimony of PW-3 shows that the site has been
inspected prior to the bid; plaintiff has bid with his eyes open,
fully aware of the physical status at site. Submission of the
learned counsel for the Department is that encroached plots carry
a lower bid and those which are vacant and free carry a higher bid
and this also has to be kept in mind; prices of the property vary
accordingly.
16 The willingness and readiness on the part of the petitioner
to perform his obligation has also not been satisfied. Letters
dated 05.01.1989 as also 09.01.1989, although are admitted to
RSA No. 80/2003 Page 8 of 10
have been received by the department but in the written
statement, content of letter dated 05.01.1989 had been
specifically denied; in this contingency it was incumbent upon the
plaintiff to have placed the said letter on record but it had not
done so. The first letter which was proved by the plaintiff is dated
25.01.1989; this was after 30 days from 23.12.1988 i.e.when 75 %
of the bid amount had to be deposited by him i.e. by 23.01.1989.
The first communication of the plaintiff proved on record is dated
25.01.1989 informing the department that there was an
encroachment and that is why he was not willing to pay the
balance amount; this was after the stipulated dated of 23.01.1989.
17 Division Bench of this court (in the judgments relied upon by
the learned counsel for the DDA) while examining the Nazul Rules
had noted that in auction bids for property prior to 25.02.1989,
there was no proviso to Rule 29; there was no scope of extension
of time for payment of the balance amount even if sufficient
reason has been explained; proviso has been inserted
only by the amendment of 25.02.1989; the case of the plaintiff is
prior to 25.02.1989. On this count also, extension of time could
not have been granted in favour of such party.
18 On no count does the impugned judgment suffer from any
infirmity. Substantial question of law is answered in favour of the
RSA No. 80/2003 Page 9 of 10
respondent and against the appellant. Appeal is without any
merit. Appeal as also the pending applications are dismissed.
INDERMEET KAUR, J.
JUNE 01, 2011
ss
RSA No. 80/2003 Page 10 of 10