Pratap Singh vs D.D.A. And Anr.
2002 Latest Caselaw 2015 Del

JUDGMENT

Usha Mehra, J.

1. Delhi Development Authority (in short the DDA) floated a scheme for the allotment/sale of MIG flats under its lighter-purchase scheme for the general public. Usha Rani, respondent No.2 herein got her name registered under the said scheme in September, 1979. She deposited a sum of Rs. 4,500/- on 29th September, 1979. DDA vide its letter dated 23rd April, 1990 intimated the respondent No.2 that she had been allotted a Flat No. 100-B Block A(D), 1st Floor, Pitam Pura, Delhi. She was to pay total consideration of Rs. 1,84,200/-. This amount was to be paid in Installments after giving adjustment to the amounts already paid. Simultaneously, she was asked to deposit a sum of Rs. 31,859/- which amount was deposited on 25th November, 1993, and another sum of Rs. 12,000/- was deposited on 20th December, 1993. She also submitted the requisite documents demanded by the DDA. On deposit of the amount and the requisite documents, DDA issued letter dated 21st December, 1993 asking respondent No.2 to appear before Junior Engineer for taking possession of the flat mentioned above. Pursuance to possession letter dated 4th January, 1994 and after obtaining "No Objection Certificate" possession was taken by respondent No.2 of the flat in question. She also obtained electricity and water connection in her name. Since respondent No.2 was in need of money, she entered into an agreement of sale with the plaintiff appellant and thus executed General Power of Attorney in his favor. Plaintiff/appellant agreed to pay a sum of Rs. 55,000/- as consideration against all the payments made by respondent No.2 and also agreed to pay the balance Installments to the DDA towards the price of the flat in question. After having received the amount, the respondent No.2 in part performance of the agreement handed over vacant and peaceful possession of the flat in question to the plaintiff/appellant. Plaintiff/appellant paid the subsequent Installment to DDA on various dates. After having paid the price, plaintiff/appellant wanted the flat to be transferred in his name as per the scheme of the DDA. Instead DDA officials threatened to dis-possess the plaintiff, therefore, he filed the suit for specific performance, declaration and injuctment. Notice on this was issued to the DDA as well as respondent No.2, Usha Rani. Their counsel appeared but did not file the written statements nor appeared subsequently, they were, therefore, proceeded ex-parte. Plaintiff led evidence. However, the trial court came to the conclusion that there was no privity of contract between the plaintiff and the DDA, hence there was no question of granting specific performance nor declaration. The suit was according dismissed. Hence this appeal.

2. We have heard Mr. M.R. Chawla, Advocate for the appellant and Mr. Deepak Khadaria, Advocate for the respondent/DDA. No-one on behalf of respondent No.2 appeared. The fact of the matter is that the plaintiff/appellant had sought transfer of the flat in his favor basing his relief on the strength of power of attorney executed by Smt. Usha Rani, respondent No.2 in his favor. Admittedly the DDA has scheme which permits transfer of properties in favor of the person in whose favor the power of attorney has been executed by the original allottee. In this case, Smt. Usha Rani, respondent No.2 the original allottee had executed the General Power of Attorney exhibit PW-1/10 by virtue of which the rights had accrued in favor of the plaintiff to seek transfer of the flat in question in his favor, of course subject to payment of usual charges. The physical possession of the flat in question is with the plaintiff/appellant. We, therefore, asked the counsel for the DDA that pursuance to the scheme of the DDA why can't the flat in question be transferred in favor of the plaintiff who is the power of attorney holder of Smt. Usha Rani, respondent No.2 in whose favor the flat No.100-B, Block A(D), 1st floor, Pitam Pura, Delhi was allotted and the possession of which was handed over to her.

3. Counsel for the DDA informed from instruction that in order to accede to the request of the plaintiff the plaintiff shall have to deposit a sum of Rs.6,04,046.96. Beside this amount the plaintiff has also to pay restoration charges as the flat stood cancelled in the name of the respondent. Counsel for the appellant says that the cancellation of the flat was neither justified nor required because at no stage any breach was committed by the allottee i.e. respondent No.2 nor by the plaintiff (sic) making payment. Rather the plaintiff/appellant has always been prepared to deposit the amount and had been repeatedly asking the DDA intimate the amount to be deposited. For no fault of his, flat could not be cancelled nor he is liable to pay restoration charges.

4. After considering the relevant contentions of the counsel for the parties and perusing the record, we direct that on deposit of the amount of Rs. 6,04,046.96 by the plaintiff/appellant (sic) worked out by the DDA, the DDA is directed to transfer the flat as per its scheme in favor of the plaintiff. So far as the question of restoration charges, we do not find it to be justified. Accordingly in the facts of this case, the impugned judgment and decree are set aside and directions are given to the DDA that on appellant's depositing a sum of Rs. 6,04,046.96 within four weeks, the flat be transferred in his favor. With these observations, the appeal stands disposed.