Balber Prashad Jain vs Dda And Ors.
2002 Latest Caselaw 1868 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. Rule.

With the consent of learned counsel for the parties the petition is taken up for final disposal.

2. The petitioner registered himself under the Vth SFS Scheme for allotment of category III flat in 1981. In 1990 the petitioner submitted an application for allotment of a flat in pursuance to the invitation extended by an on 30.11.1990 the petitioner was declared successful for allocation of first floor category III flat in Mukherjee Nagar under SFS scheme and that the estimated cost was to be Rs.5,17,500/-. The payment had to be made in terms of said allotment being the first four Installments.

3. The petitioner paid 1st Installment in time but the second Installment was delayed by the three months. The 3rd Installment was again stated to have been paid in time and the 4th Installment was not paid by the due date of 10.2.1992 and an request for an extension to pay the amount by three months was made by the letter dated 6.2.1992. However, the payment was not even made during this period of time. On 3.4.1995 the petitioner received a letter from the respondents asking the petitioner to give proof of the payment of the 4th Installment. The petitioner had not made payment by then and made the payment of 4th Installment on 9.5.1995 i.e. about three years and three months after the due date. The name of the petitioner was not included in the draw of lots and the petitioner was issued a letter dated 29.11.1995 intimating that the registration of the petitioner had been cancelled because the scheme has been closed and that the amount of registration deposited would be refunded in due course. The petitioner made a representation against the same on 17.1.1996 on the ground that the scheme had been closed after the request made by the petitioner for extension of time for making the payment of the 4th Installment. On 12.9.1996 the petitioner received a letter along with a cheque dated 9.9.1996 for Rs.4,57,659/- towards the refund of the amount. On 3.10.1996 the petitioner addressed a letter to the respondents stating that he is encashing the said cheque without prejudice to this rights and contentions and requested that his representation dated 17.1.1996 be considered. On 21.4.1997 the petitioner received a letter from the respondents stating that no action was required from there end since the cheque for the refund amount had already been sent to the petitioner.

4. The petitioner filed the writ petition only on 2.4.1998 seeking to challenge the letter dated 29.11.1995 cancelling the registration of the petitioner as also the letter dated.21.4.1997 rejecting the representation of the petitioner. The petitioner prayed for allotment of category III SFS flats in Mukherjee Nagar, Vasant Kunj or Kalkaji at the rates prevalent in the year 1995.

5. In the counter affidavit the respondents have stated that the petitioner failed to make the payment of Installments within time which position is not disputed in the writ petition. It is stated that the petitioner was asked to submit proof of payment of 4th Installment vide letter dated 3.4.1995 and since the said Installment was paid after the due date resulting in delay of three years and three months, there was automatic cancellation of the allocation in favor of the petitioner in terms of the allotment letter as per Clause 4 of the terms and conditions of the allotment. It is not disputed that the said application could be restored subject to payment of restoration and interest charges. It is stated that a flat could not be restored at that stage because the 5th scheme came to an end and that the refund was made in accordance with law.

6. Learned counsel for the petitioner contends that since the representation of the petitioner dated 6.2.1992 had never been answered, the flat of the petitioner could not have been cancelled. It is further contended that 4th Installment was ultimately paid and the allotment of the petitioner could have been restored subject to payment of restoration charges and payment of interest which was never demanded by the respondent. Learned counsel for the petitioner also submits that the cheque for the refund amount was encashed since holding the amount would serve no purpose and vide letter dated 3.10.1996 the petitioner intimated that the encashment was without prejudice to the rights and contentions of the petitioner.

7. Learned counsel for the petitioner also relies upon the judgment of the Division Bench of this Court in CW No.3821/1992 and other connected matters Smt. Sheela Bisht and Ors. vs. DDA decided on 2.9.1994 where the clause 4 of automatic cancellation was considered. The Division Bench observed that though clause 4 provide for automatic cancellation, the same could be restored on payment of dues with interest and restoration charges subject to availability of the allocated flat. In that case also the petitioner had defaulted in making the payment and in some cases registration was restored.

8. Learned counsel for the petitioner has also referred to certain documents filed with the list of documents dated 18.3.2002 though the said documents have been filed without any affidavit and without the leave of the Court. Learned counsel for the petitioner states that the said documents have been filed only to show that in certain other cases following the judgment of Sheela Bisht case (supra), the allotments have been restored.

9. I have considered the submissions advanced by the learned counsel for the petitioner.

10. There is no dispute about the fact that there has been delay in making the payments on behalf of the petitioner in respect of the Installments. The petitioner asked for extension on 6.2.1992 for three months to make the payment of the 4th Installment. However, payment was not even made within the extended period of time. It is only when the petitioner was called upon to give proof of the payment of 4th Installment vide letter dated 3.4.1995 of the respondent the petitioner deposited the amount on 12.5.1995. There is thus inordinate delay in making the payment of the 4th Installment. This is apart from the delay in making the payment of the 2nd Installment.

11. The petitioner who was informed the letter dated 29.11.1995 about the cancellation of the flat, though the letter mentions that the flat has been cancelled since the scheme is closed. It is apparent that the initial cancellation took place on account of non payment of Installment within time in terms of clause 4 of the terms of allotment and the allotment could not be restored in view of the closure of the scheme in the meantime. The said clause has in fact been upheld in the case of Sheela Bisht case (supra) but the Division observed that subject to availability of flats for allotment, the allocation could be restored on payment of requisite charges relating to restoration, interest etc.

12. The petitioner's representation dated 17.1.1996 was followed up by the refund of the amount on 12.9.1996. There is another aspect of the matter which arises from the petitioner enchasing this cheque on 3.10.1996, albeit without prejudice to his rights and contentions. The petitioner did not approach the Court even at that stage and the subsequent letter dated 21.4.1997 of the respondent was issued to the petitioner stating that the matter stood closed. The petitioner even thereafter filed the writ petition after a lapse of almost one year. The time period between encashment of the cheque and filing of the writ petition is almost one a half years. There is delay on the part of the petitioner in approaching this Court specially taking into consideration the nature of the dispute between the parties.

13. In my considered view, it was not open to the petitioner to enchase the cheque unilaterally and appropriate the same by only mentioning in the letter that the same was without prejudice to the rights and contentions of the petitioner. This is also coupled with the failure of the petitioner to approach the Court immediately thereafter or at any immediate subsequent date. The respondent cannot be faulted for the conduct of the petitioner in failing to make payment of Installments within time and delaying the payment of 4th Installment for more than three years and three months till the petitioner was called upon to submit the proof of the 4th Installment. The representation of the petitioner dated 6.2.1992 only sought an extension for a period of three months which period expired long back and it cannot be said that the said representation is pending since the petitioner failed to deposit the payment even within the extended time.

14. In view of the aforesaid facts and circumstances of the case, I am of the considered view that the petitioner is nt entitled to any relief in the present writ petition.

15. Dismissed.

C.M.No.2955/1998

16. Dismissed.

17. Interim order dated 16.4.1998 stands vacated.