Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4
CASE NO.:
Appeal (civil) 5875 of 1999
PETITIONER:
PRASHANT KUMAR SHAHI
Vs.
RESPONDENT:
GHAZIABAD DEVELOPMENT AUTHORITY
DATE OF JUDGMENT: 03/04/2000
BENCH:
S. Saghir Ahmad, & R.P. Sethi.
JUDGMENT:
SETHI,J.
L...I...T.......T.......T.......T.......T.......T.......T..J
The appellant applied for the allotment of a plot
measuring 350 sq.mtrs. under the Scheme of "Indrapuram" and
paid registration amount of Rs.42,000/- on 28th July, 1989.
A further sum of Rs.63,000/- being the reservation amount
was paid and plot allotted to him vide letter of the
respondent-authority dated 5th November, 1989. The first
instalment of Rs.76,125/- was paid by him on 16th August,
1990. Further instalments during 1990-95 were not paid
allegedly on the ground that the respondent-authority had
not made any development at the site. The appellant further
stated that he was made to believe that the possession of
the plot would be handed over to him by the year 1991. Vide
letter dated 28th February, 1995, the appellant was informed
that if the balance amount is not paid by him by 30th
November, 1995, interest would be charged on the balance
amount due. The appellant’s contention is that in terms of
the aforesaid letter the interest, if any, can be charged
for the period commencing from 30th November, 1995 and not
earlier to it. He had already paid a total sum of
Rs.5,74,993/- but the respondents were allegedly wrongly
insisting for the payment of an additional amount of
Rs.2,34,127/- before delivery of possession of the plot. As
the plot was not delivered to him, the appellant filed a
complaint under Sections 36A, 36B(a) and 36D of the
Monopolies & Restrictive Trade Practices Act (hereinafter
referred to as "the MRTP Act") before the Monopolies and
Restrictive Trade Practices Commission (hereinafter referred
to as "the Commission") which was registered as Unfair Trade
Practice Enquiry No.92/97. Notice of enquiry under the
provisions of the MRTP Act was issued to the respondent who
appeared before the Commission and contended that the
appellant himself through his letter dated 13th December,
1996 admitted the delay in payments and indicated his
willingness to pay the entire amount outstanding against him
with the request not to cancel the allotment due to delayed
payments. The amount liable to be paid by the appellant was
stated to have been calculated strictly in accordance with
the terms and conditions of the brochure circulated. The
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4
respondents could have cancelled the allotment in terms of
the regulations contained in the brochure but it was not
done to facilitate the appellant to make the payment of the
balance amount. It was contended that the necessary
facilities of sewerage, drainage, water supply and
electricity connections were made available to the
plot-holders including the appellant in Indrapuram Scheme.
Regarding delivery of possession, it was contended on behalf
of the respondent-authority, that in the brochure only
estimated time of completion of scheme was indicated and
delay in completion had occurred due to various factors
including the constraints of funds. It was further pleaded
that the paucity of financial resources had been caused due
to delay or default in payment by the allottees like the
appellant. On the basis of the pleadings of the parties,
the Commission framed the following issues: "1. Whether
the respondent has been indulging in unfair trade practices
as alleged in the NOE?
2. Whether these unfair trade practices are prejudicial
to the interest of the complainant/ other members of the
public?
3. Whether he is entitled to relief/compensation
claimed made by him in the compensation application?
4. Relief, if any?"
After referring to the pleadings and the evidence
produced, the Commission concluded:
"It transpires that the applicant/complainant has of his
own accord, approached the respondent and indicated his
willingness to pay the amount due from him. Not only has he
shown his desire to clear the dues, he has also acknowledged
that there has been delay on his part in making the payment.
Perusal of the allotment letter reveals that there is a
stipulation with regard to payment of interest and penal
interest if the payment is not made within the prescribed
time limit. As both the applicant/complainant as well as
the respondent are relying on the allotment letter, it
stands to reason that the outstanding amount including
interest should be calculated in the light of this letter of
5.11.1989. It appears from the affidavit of evidence filed
on behalf of the respondent that the calculations have been
made on the basis of that letter and the respondent has
accordingly, indicated the amount to the
applicant/complainant. In that view of the matter, the
applicant/complainant’s contention that interest should be
charged after 30th May, 1995 is not tenable. It is also
quite apparent that there has been delay in the completion
of the project but delay seems to have been caused by
circumstances beyond the control of the respondent. It is
also common knowledge that there has been cost escalation
and cost etimates of 1989 need revision and the revised
estimate is bound to be much higher than the original
estimate. It appears that development of infrastructure and
provision of utilities like water supply and electricity
connection have also contributed to the hike in the
estimated cost and demand for additional charges for
sewerage, lease rent, etc., cannot be construed or
considered to be an unfair trade practice on the part of the
respondent. It also transpires that the respondent is
charged with the responsibility of developing land for
plots/flats and making the same available to the allottees
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4
like the applicant/complainant on actual cost value basis
and the total cost incurred by it is required to be
recovered from the allottees. In that view of the matter,
there is no escape from the conclusion that no case of
unfair trade practices by and on behalf of the respondent
has been made out and no prejudice seems to have been caused
to the applicant/complainant as a consequence thereof."
Learned counsel appearing for the appellant relying upon
a judgment of this Court in Bihar State Housing Board and
Ors.vs. Lalit Ram [1997 (10) SCC 339] submitted that as the
respondent-authority has been proved to be responsible for
the delay in delivering possession of the plot, the
appellant could not be burdened to pay the penal interest
for the period anterior to 30th May, 1995. It is true that
if the authority is found to be responsible for the delay in
delivery of the possession of the plot in terms of the
agreement arrived at or according to the assurance given in
the brochure, the allottee cannot be burdened with the
interest on the balance amount not paid by him. However, it
has to be found on facts as to whether the authority or the
allottee was responsible for the alleged delay. According
to the available records and the submissions made on behalf
of the appellant it transpires that the schedule for payment
of the total estimated cost of the plot being Rs.4,29,000/-
and registration amount of Rs.42,000/- was to be paid in the
following instalments:
"S.No. Instalment Description Due date of payment 1.
Reservation Amount 4.12.1989 2. Instalment No.1 4.5.1990 3.
Instalment No.2 4.11.1990 4. Instalment No.3 4.5.1991 5.
Instalment No.4 4.11.1991 6. Instlament No.5 4.5.1992 7.
Instalment No.6 4.11.199"
It further transpires that after paying the initial
amount of Rs.42,000/- the appellant paid the first
instalment of Rs.63,000/- on 3.1.1990 and second instalment
of Rs.76,125/- on 16th August, 1990 total being
Rs.1,81,125/-. Amounts of instalment due on 4.11.1990,
4.5.1991, 4.11.1991, 4.5.1992 and 4.11.1992 were,
admittedly, not paid on the due dates. The
respondent-authority vide its letter dated 28th February,
1995 called upon the appellant to make upto date payments
and 10% of premium of his plot as lease rent and Rs.4800/-
as sewer connection and water connection charges latest by
30th May, 1995. It was pointed out that "if the payment is
not made within the due date interest shall be charged @ 18%
& chokidata fee Rs.5/- per day shall be charged after
30.5.95". Admittedly, till 16.10.1996 no amount was paid.
Even on that date a sum of Rs.72,188/-, the amount of
instalment payable on 4.11.1990 was actually paid. The
appellant thereafter paid a sum of Rs.2 lakhs on 7.1.1997
and Rs.1,29,600/- on 13.1.1997 before filing his complaint
in the Commission on 28th February, 1997. Having failed to
perform his part of the contract, the appellant cannot be
permitted to urge that he is not liable to pay the balance
amount along with interest as according to him the
respondent-authority had failed to deliver possession as per
terms of the brochure. The authority was not expected to
deliver possession in the absence of the payment of the
agreed amount. Having failed to perform his part of the
agreement, the appellant cannot be permitted to urge, at
this stage, that he was not liable to pay the interest as
agreed to by him at the time of accepting the allotment of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4
the plot in his favour. The reliance of the learned counsel
on the letter dated 28th February, 1995 is also misplaced
inasmuch as by that letter he was given further opportunity
to make the payment of the balance amount alongwith charges
mentioned therein by a specified date, failing which
interest and chokidata was to be charged from him. The
letter did not envisage that such interest and chokidata was
to be charged from a date subsequent to 30th May, 1995 and
not prior to it. The mention of the date was only to
intimate the appellant of the concession given to him and
upon his failure to avail of the benefit by the specified
date, he was liable to pay the interest as agreed upon. The
judgment of this Court in Bihar State Housing Board and
Ors.vs. Lalit Ram (supra) is also of no help to him. In
that case the allottee was found to have been intimating the
Board time and again for completion of the construction of
the plot but despite his request the same was not completed
and it was held that without completion of the construction,
the aforesaid allottee could not be asked to execute the
agreement and upon his failure to execute the agreement,
charged with the liability of paying the interest. The
facts of the present case are altogether different and
distinguishable. After going through the whole record
produced before us, we find that no ground is made out to
interfere with the order of the Commission in this appeal.
The appeal is, therefore, dismissed. The appellant is held
liable to pay the amount demanded from him before the
delivery of the possession of the plot. No costs.