Delhi High Court
Paras Co-Operative Group Housing ... vs Delhi Development Authority And ... on 20 September, 2002
Author: S K Kaul
Bench: S K Kaul
JUDGMENT
Sanjay Kishan Kaul, J.
1. Rule.
2. With the consent of learned counsel for the
parties the matter is taken up for final disposal.
3. Respondent DDA has issued a letter dated
1.10.1990 to various co-operative societies including
the petitioner society intimating about the proposal to
allot lands in Dwarka (Pappan Kalan), Phase I and in
Narela. The estimated cost of the land was Rs. 975/-
per square meter in Dwarka and Rs. 950/- per square per
in Narela. The petitioner society was asked to deposit
a sum of Rs. 5 lakhs as earnest money. the petitioner
deposited the earnest money on 17.10.1990. In terms of
the letter dated 18.11.1993, it was proposed to allot
to the petitioner land measuring approx. 10,500 square
meters in Dwarka, Phase I at the cost of Rs. 1861.61
square meters. The schedule for payment of the premium
was specified therein. Clause IV provided for terms
and conditions for accepting the proposal of allotment
on the conditions specified therein and relevant Clause
4 (II) is as under:
"II. In case you fail to deposit
the part premium and earnest money as
demanded above and/or the balance premium
as and when demanded as para 2 above, the
earnest money deposited by you shall
stand forfeited."
4. The petitioner initially protested against the
price vide letter dated 8.12.1993 and sought some
extension to make payments but were unable to make
arrangements for the same and no money was deposited.
Further extensions were also granted. The petitioner
thereafter made a request in terms of the letter dated
8.8.1994 for refund of the earnest money since it was
stated that the petitioner had been unable to arrange
for the cost of the land from its members which was at
much higher rate than was originally proposed in the
letter dated 17.10.1990. Various reminders were also
sent.
5. In view thereof respondents addressed letter
dated 17.10.1994 intimating to the petitioner that
offer of allotment of land stands withdrawn/cancelled
in view of the failure of the petitioner to pay the
premium for the land. The respondents further issued a
letter dated 18.10.1995 stating that the amount of Rs. 5
lakh deposited had been forfeited as per Clause 4 (II)
of the offer cum demand letter dated 18.11.1993. It
may be stated that the petitioner claims not to have
received this letter which was filed along with counter
affidavit.
6. The petitioner filed the writ petition to allot
land to the petitioner in furtherance of the invitation
letter dated 1.10.1990 or in the alternative for refund
of the registration money of Rs. 5 lakhs with interest.
The petition was subsequently amended to incorporate
the relief of quashing of the said letter dated
18.10.1995 which had been filed along with counter
affidavit.
7. On the last date of hearing on 26.4.2002 it was
recorded that the learned counsel for the petitioner
states that the petitioner will be satisfied if the
amount deposited by the petitioner was returned to it
with interest. Learned counsel for the respondents was
directed to take instructions in the matter. Learned
counsel for the respondents states that respondents are
not willing to refund the amount.
8. I have considered the submission advanced by
learned counsel for the parties.
9. It is apparent from the letter dated 1.10.1991
that the cost of the land indicated therein was
Rs. 975/- per square meter in Dwarka. It was on this
basis that the petitioner deposited the earnest money
on 17.10.1990. The proposal made to allot the land on
18.11.1993 was however almost at double the amount of
Rs. 1861.65 per square meter. The petitioner society
made every endeavor to collect the funds but could not
deposit it and thus after seeking extension of time,
sought refund of the amount vide letter dated 8.8.1994.
10. In terms of the letter dated 17.10.1994 the
respondents itself stated that the offer of allotment
stood withdrawn/cancelled in view of the failure of the
petitioner to deposit the amount. It is also relevant
to note that what was communicated to the petitioner
vide letter dated 18.11.1993 was a proposal to allot
the land of plot and subject to the petitioner
complying with the terms and conditions therein.
Clause 4 clearly provided that the proposed allotment
was subject to the petitioner accepting the conditions
stated there under. However, the occasion for the
petitioner to comply with the conditions did not arise
as the petitioner was unable to deposit the amount and
thus accept the offer. Clause 4 (II) would have come
into operation if the petitioner had accepted the
allotment, paid some amount but failed to adhered to
schedule of payment. Thus in my considered view the
clause would have no application in respect of the
petitioner.
11. There is another relevant aspect to the matter.
As noticed above though the petitioner deposited the
earnest money in 1990. No proposal for allotment to
the petitioner was made till three years thereafter in
1993. When the proposal was so made, it was almost at
double the price. In such a situation the petitioner
society cannot be compelled to accept the allotment.
Assuming that the cost of land has gone up and the
respondents are unable to offer plot of land at the
original price, an opportunity must be given to the
petitioners society to withdraw from the allotment in
case it is unable to accept the same and deposit even
the initial amount.
12. It is also relevant to note that letter dated
18.11.1993 contends Clause 6 in the following terms:
"6. If the application form,
complete in all respects and accompanied
by the bank challan is not received
within 45 days from the date of issue of
this letter, it shall be presumed that
you are not interested in obtaining the
allotment of land from DDA and it shall
be competent for the Authoirty to allot
the land to any other person including a
Co-operative Society."
13. In the aforesaid it had to be presumed that the
petitioner was not interested in obtaining the
allotment of land since neither the application form
was completed in all respects nor the bank challan was
received within 45 days from the date of issue of
letter or within the extended period of time.
14. In view of the aforesaid, I am of the considered
view that the respondents were bound to refund the
amount to the petitioner within reasonable period of
time when the request was so made on 8.8.1994 and a
decision to forfeit the earnest money in terms of the
letter dated 18.10.1995 is hereby quashed. A
reasonable period could not have been more than about
two months and thus the refund should have been made at
least before the end of September, 1994.
15. Since the respondents have forfeited the amount
of the petitioner and have retained the money, they are
also liable to pay interest on the same. I am unable
to accept the contention of learned counsel for the
petitioner that interest has to be paid from the date
of deposit since allotment were made in favor of the
petitioner and even extended time was granted to make
payment. The occasion to refund the amount only arise
in pursuance to the letter dated 8.8.1994. The
respondents would thus be liable to pay interest from
1.10.1994. There has also been some delay on the part
of the petitioner in approaching this Court thereafter.
Taking all the aforesaid facts into consideration, I am
of the considered view that the respondents should pay
to the petitioner interest @ 12% p.a. from 1.10.1994
till the date of payment.
16. A writ of mandamus is thus issued directing the
respondent authoirty DDA to refund the amount of Rs. 5
lakhs along with interest @ 12% p.a. from 1.10.1994
till the date of payment within a period of four weeks
from today. In case the respondents do not pay the
interest within the said period of time, the interest
payable thereafter shall be 18% p.a.
17. The writ petition is allowed in the aforesaid
terms with cots of Rs. 5000/- to the Advocates Welfare
Fund - Trustee Committee to be deposited within four
weeks and receipt to be filed in Court.
18. dusty.
C.M.No. 13390/1999
19. No further orders are called for in this
application in view of the disposal of the writ
petition. Application stands disposed of.
dusty.
