Smt. Arun Gupta vs Delhi Development Authority
2008 Latest Caselaw 1305 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P.(C) No.8311/2005

%                       Date of Decision: 11.08.2008


       SMT. ARUN GUPTA                               ..... Petitioner
                      Through:           Mr. R.K. Saini, Advocate

                       versus

       DELHI DEVELOPMENT AUTHORITY       ..... Respondent
                     Through: Ms. Sangeeta Chandra, Advocate


CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI

1. Whether the Reporters of local papers may
   be allowed to see the judgment?

2. To be referred to Reporter or not?                       Yes

3. Whether the judgment should be reported                  Yes
   in the Digest?

VIPIN SANGHI, J.

1. The petitioner was registered under the New Pattern

Registration Scheme, 1979 for allotment of an MIG flat. She had given

her residential address as N-21, North Avenue, Delhi where she was

residing at that point of time. In the year 1990, she shifted her

residence to Flat No.A-355, Moti Bagh-I, New Delhi and submitted a

letter to the DDA informing the DDA of the change of her address. On

5.9.1998, the respondent held a draw of lots wherein Flat No.405(FST),

Pocket-A, Sector-13, Dwarka was allotted to the petitioner on hire

purchase basis and an amount of Rs.3,76,796.17 was demanded as

an initial deposit which could be paid with interest upto 1.11.1999.

The remaining amount had to be paid in 120 monthly instalments of

Rs.5906.01, commencing from 10.10.1999. The petitioner states that

she did not receive the demand-cum-allotment letter from the

respondent and learnt of the allotment in her favour through a public

advertisement. She personally contacted the DDA for issuance of a

demand-cum-allotment letter at the correct address. Since the time

initially granted for making the initial deposit was about to get over on

30.10.1999, the petitioner requested for further time to deposit the

amount and this request was acceded to by the respondent by

granting her time upto 30.11.1999 with usual charges. The petitioner

admittedly made payment of the amount as per the demand letter.

She was required to pay an amount of Rs.3,76,796.17 whereas she

deposited an amount of Rs. 3,87,000/- before 30.11.1999.

2. The case of the petitioner is that on 1.2.2000, she deposited

the desired documents with the respondent. The forwarding letter

placed on record states that the petitioner is enclosing three copies of

possession letter duly attested, copies of bank challan, registration

certificate, affidavit on non-judicial stamp paper, undertaking on non-

judicial stamp paper, photograph and specimen signatures duly

attested. In the forwarding letter, the documents attached with it

were also serialised as 1 to 7 wherein serial no.6 pertained to

photograph and signature attested. The case of the petitioner is

that at the time of receipt of the said forwarding letter and the

documents, the documents were checked and tick marked on the copy

of the letter dated 1.2.2000 with the petitioner.

3. The next step was for the DDA to deliver possession of the flat

to the petitioner. However, there was no word from the DDA in this

regard. The petitioner states that she visited the office of the

respondent on 3.8.2001 to pursue her case since the respondent was

incommunicado and again sent a communication on 16.10.2002. In

this communication, the petitioner complained that in spite of her

having deposited the required amount and also submitting the

required documents, possession of the flat had not been handed over

to her so far, although a period of 2-1/2 years had since elapsed. She

further stated that she had been visiting the office of the respondent

and every time she was told that the flats were under the stage of

completion, or a blank assurance was given to her that she would get

the possession soon. In this communication she also demanded

interest on the amount which she had deposited towards the initial

deposit, since the respondent had failed to deliver possession of the

flat.

4. The respondent issued a communication, apparently dated

22.10.2002 requiring the petitioner to submit three specimen

signatures with photographs duly attested by a Gazetted Officer/First

Class Magistrate so that the possession letter could be issued. The

petitioner responded to this communication on 20.12.2002 stating that

she had received the aforesaid communication only on 11.12.2002,

since it had been despatched belatedly by the respondent. The

petitioner has placed on record the envelope in which the said

communication was sent. It shows that the letter was dispatched

only on 11.12.2002. She further stated that this was also an incidence

of harassment which was first caused by changing her name from Arun

Gupta to Arun Chopra and then by not giving possession of the flat so

far in spite of more than 2-1/2 years having elapsed. She enclosed

three specimen signatures with photographs duly attested. She

further reiterated her demand for interest on the amount deposited 2-

1/2 years ago and also demanded damages and compensation for

harassment caused to her for such a long time. On 23.1.2003, the

petitioner once again represented to the Vice Chairman, DDA. She

again stated that due to the possession not being delivered, she has

been put to a lot of financial constraint and had been deprived from

getting rent to meet her liabilities. She sought the intervention of the

Vice Chairman, DDA to ensure that possession of the flat is handed

over to her at the earliest.

5. On 17.3.2003, the respondent issued a communication

directing the petitioner to deposit the due monthly instalments w.e.f.

May 2001 so that possession letter could be issued to her. The

petitioner however held her forte by insisting that she could not be

required to deposit the monthly instalments for the past period when

the possession had in fact not been delivered by the respondent. The

respondent then issued a communication dated 10.7.2003 requiring

the petitioner to deposit 50% of the due monthly instalments w.e.f.

June 2001 till date along with an undertaking to deposit the balance

due monthly instalments within six months so that possession letter

could be issued. The petitioner again protested against the said

demand of the respondent. The said dead lock has continued and the

petitioner has approached this Court by filing the present writ petition.

6. The submission of Mr. R.K.Saini, learned counsel for the

petitioner is that the respondent, rather than paying interest to the

petitioner on the amount initially deposited by her on account of its

failure to deliver possession of the flat to the petitioner, is requiring the

petitioner to pay the hire charges even when the possession of the flat

has not been delivered to the petitioner. It is argued that in a hire

purchase scheme the allottee is obliged to pay the instalments only

after the possession has been delivered to the allottee. The purpose of

such a scheme is to enable the allottee to occupy, use and exploit the

allotted flat so as to be able to conserve or harness the resources to

make payment of the monthly instalments. The obligation to pay the

hire charges cannot arise unless and until the respondent DDA delivers

possession of the flat to the allottee. Mr. Saini has further pointed out

that even according to the respondent, the basic amenities like

electricity and water were not available in the locality when the

respondent demanded and realized the initial deposit of Rs.3,87,000/-

from the petitioner. He further submits that the petitioner had

complied with all the requirements by making payment of the

demanded amount and submitting all the documents on 1.2.2000. The

respondent raised the question of the photographs and the attested

signatures of the petitioner not being submitted, only when the

petitioner demanded interest from the respondent on the deposit

made by her, after a passage of about 3 years. He submits that at the

time of submission of the documents on 1.2.2000, the respondent's

representative had examined the documents as submitted along with

the forwarding letter and had himself tick marked the same on the

forwarding letter. The further submission of Mr. Saini is that the

purpose of submission of photographs and attested signatures is to

ensure the identity of the allottee at the time of delivery of possession.

He submits that even the specimen possession letters submitted by

the petitioner in the form provided by the respondent had her

photographs, as well as her duly attested signatures. The same

tantamounted to compliance of the requirement to submit attested

photographs and signatures of the petitioner. Therefore, merely

because the respondent had desired the submission of the attested

photographs and signatures in a separate form, even if one were to

assume that they were not initially submitted by the petitioner, it was

not enough to prevent the respondent from delivering possession of

the flat to the petitioner. Mr. Saini further submits that there is

absolutely no explanation given by the respondent for the long delay in

raising the said aspect for nearly three years. Had the respondent

pointed out, that according to them the petitioner had not submitted

the attested photographs and signatures earlier, the same could easily

have been submitted, as was eventually done by the petitioner on

20.12.2002.

7. Mr. Saini has relied upon various decisions of this Court in

support of his submission that the respondent could not have required

the petitioner to pay the hire charges since the possession had not

been delivered, and that the respondents should also pay interest on

the amount deposited by the petitioner for the period when the

petitioner has not been placed in possession of the flat.

8. On the other hand, learned counsel for the respondent, Ms.

Sangeeta Chandra has produced the original record to show that even

in the original record, the attested photographs and specimen

signatures stated to have been submitted by the petitioners along with

forwarding letter dated 1.2.2000 are not to be found. She submits that

when the attested photographs and specimen signatures were not

given, the possession could not have been delivered to the petitioner.

This deficiency was made up by the petitioner only on 20.12.2002,

therefore, there was no delay in offering the possession to the

petitioner from the side of the respondent. She submits that the terms

and conditions contained in the demand-cum-allotment letter clearly

enlist the documents that the allottee is required to submit, and the

attested photograph and specimen signatures are also essential

documents required to be submitted by the allottee. Merely because

the specimen possession letter has the attested photographs and

signatures of the allottee, the same could not be treated as a

substitute for the specific requirement laid down in the demand-cum-

allotment letter. She also points out that the petitioner, while issuing

the letter dated 20.12.2002 did not even state that the deficient

documents had been submitted earlier, and that she was again

submitting them for the second time. This shows that the petitioner

had not submitted the attested photographs and specimen signatures

on 01.02.2002 and that the same were submitted for the first time only

on 20.12.2002.

9. So far as the demand for the payment of arrears of

instalments is concerned, learned counsel for the respondent submits

that since the services in the concerned locality were made available in

May 2001, the respondent had itself postponed the date of start of the

monthly instalments from October 1999 to May 2001 and as such the

petitioner was required to make payment of the arrears of instalments

from June 2001 onwards. She relies on an office order dated 27.6.2002

issued by the DDA which had been framed to lay down the guidelines

and policy applicable to such like cases. Clause 4 of the said policy

decision states that the allottee should be required to pay 50% of the

amount due on account of monthly instalments apart from penal

interest as per applicable terms on overdue instalments. Ms. Chandra

has also relied on a decision of this Court in WP(C) 4545/1998 titled

"Sheel Kumar Sethi vs. DDA" decided on 12.11.2002 to submit that

since the delay in non-submission of all the documents was that of the

petitioner, the petitioner could not avoid the payment of the overdue

instalments before possession could be delivered to her.

10. Admittedly, the petitioner deposited the amount of

Rs.3,87,000/- on or before 30.11.1999 i.e. within the time granted to

the petitioner. The said amount was more than what she was required

to deposit at that stage. It is also the admitted position that on

01.02.2000 the petitioner deposited various documents with the DDA

and the DDA in receipt of those documents endorsed its

acknowledgment on the forwarding letter dated 01.02.2000. One of

the controversies raised is whether the petitioner submitted the

attested photographs and specimen signatures or not. A perusal of the

original record of the respondent DDA shows that the original

forwarding letter dated 01.02.2000 alongwith various documents

submitted by the petitioner are found on the record. Amongst the

documents stated to have been enclosed alongwith the forwarding

letter dated 01.02.2000, at serial No.6 "photographs and signature

attested" is also mentioned. However, apart from the photographs

and specimen signatures, which are affixed and attested on the form

provided by the DDA, there are no separate documents to be found on

the record produced, containing the photographs and the attested

specimen signature of the petitioner. But the forwarding letter shows

that each of the entries in respect of the documents attached with it

has been tick marked, presumably by the person who has received the

same. The possibility of the photographs and attested specimen

signatures of the petitioner stated to have been submitted alongwith

the said forwarding letter dated 01.02.2000 having got misplaced after

their submission, but before they were placed in the file pertaining to

the petitioner cannot, therefore, be ruled out. On the other hand the

possibility of the said documents not being filed by the petitioner,

though disclosed in the forwarding letter appears to be remote for

various reasons. Firstly, from the forwarding letter itself it is evident

that the petitioner was conscious of the necessity of submitting the

said documents. There is no reason for the petitioner not to have

submitted the photographs and attested specimen signatures when

she was aware that these documents were required to be submitted.

Secondly, she had got her photographs and specimen signatures

attested on the printed form provided by the DDA for taking over

possession of the flat. There was no difficulty in the petitioner

submitting her attested photograph and specimen signatures

separately as well. Thirdly, had the attested photograph and specimen

signatures not been submitted by the petitioner alongwith the

forwarding letter, there is no reason why the respondent would have

tick marked on the forwarding letter against serial No.6 of the list by

documents submitted with the said letter, both on the original of the

said forwarding letter, as also on the copy of the said letter with the

petitioner. Fourthly, the respondent would have written to the

petitioner, the factum of the documents not being submitted, or would

have informed her about the same when she visited the respondent on

03.08.2001.

11. Pertinently, even according to the "Citizens Charter"

published by the DDA, it has committed itself to provide time bound

and transparent service in all transactions. The DDA has further

undertaken to issue acknowledgment within 15 days and to have time

bound settlement of all correspondence, and in case of any delay to

give an intimation regarding the reasons for the delay, and state when

a reply can be expected. The DDA in the "Citizens Charter" has also

fixed the time schedule of 60 days for completion of formalities for

issuance of possession letter of flats.

12. Admittedly, after the receipt of the documents by it on

01.02.2000, the respondent DDA did not take any steps whatsoever

either to deliver possession of the flat to the petitioner, or to inform her

that, according to them, the documents submitted by her were

incomplete, inasmuch as, the attested photograph and specimen

signatures were not submitted by her.

13. The submission of learned counsel for the respondent that a

perusal of the letter dated 20.12.2002 sent by the petitioner shows

that even according to the petitioner she had not submitted the

attested photographs and specimen signatures earlier does not appear

to be correct. In fact the petitioner stated in her letter dated

20.12.2002 that she was "surprised to see your letter dated 22nd

October 2002 which was sent to me only on 11th December 2002". She

further stated that "This is an instance to confirm what I have stated in

my earlier letters regarding harassment caused to me by first changing

my name from Arun Gupta to Arun Chopra and than by not giving the

possession of the flat so far in spite of more than two and half years

have gone." She further stated "This is a clear case of harassment as

it took 2½ years for you to discover that my three specimen signatures

with photo are required and you dispatched the letter dated 22 nd

October 2002 on 11th December 2002 i.e. after more than one and a

half months". Merely because the petitioner did not make a statement

that she had earlier submitted the attested photographs and specimen

signatures while submitting the other documents on 01.02.2000, it

cannot be inferred that it was only for the first time that the petitioner

submitted the said documents on 20.12.2002. It was not necessary

that she should have made such a statement in view of what all she

stated in her letter dated 20.12.2002, and the forwarding letter dated

01.02.2000. Pertinently, in their counter affidavit the respondent does

not explain as to how on the forwarding letter dated 01.02.2000 all the

documents stated to have been enclosed with it were tick marked, and

by whom. The respondent does not even explain as to why it did not

send a communication to the petitioner earlier and why the said

documents were demanded from the petitioner only vide letter dated

22.10.2002 dispatched on 11.12.2002.

14. The DDA woke up from its slumber and sent its

communication, which though purported to be dated 22.10.2002, was

dispatched to the petitioner on or about 11.12.2002, demanding the

submission of the attested photographs and specimen signatures, only

after the petitioner had sent the communication dated 16.10.2002

wherein she made a grievance of her not being delivered possession of

the flat for more than 2½ years despite her visits to the office of the

respondent and she sought interest on the initial deposit made by her

from the DDA. In view of the aforesaid discussion, I do not accept the

submission of the respondent that the petitioner did not submit the

attested photographs and specimen signatures on 01.02.2000.

15. Even if it were to be assumed that the petitioner had not

submitted the said documents on 01.02.2000 as claimed by the

respondent, the same does not explain the gross negligence on the

part of the respondent DDA in sleeping over the matter for nearly 3

years. Had the respondent communicated the petitioner the so called

deficiency in the documents within a reasonable time of the

documents being submitted by the petitioner on 01.02.2000, the

petitioner could easily have submitted the said documents as was

done by her vide her communication dated 20.12.2002. Pertinently,

the petitioner took less than 9 days after the receipt of the

communication dated 22.10.2002 of the respondent, which she

received after 11.12.2002, to submit the attested photographs and

specimen signatures. Consequently, I reject the argument of the

respondent that there was any delay in submission of the documents

by the petitioner, or that the said delay was responsible for the failure

on the part of the respondent to offer possession of the flat to the

petitioner. The said ground appears to have been raised as an

afterthought, just to cover up the failure of the DDA to process the

case of the petitioner for delivery of possession of the flat to her. I

further hold that the default in this regard was entirely that of the

respondent, even if it were to be assumed that the petitioner had not

submitted the attested photographs and specimen signatures

alongwith forwarding letter dated 01.02.2000, since the respondent

failed to notify the petitioner of the so called omission within a

reasonable time, and for the first time sent a communication to this

effect only in December 2002, which was responded to by the

petitioner immediately on receipt.

16. Coming now to the submission of the petitioner that the

attested photographs and specimen signatures were also contained in

the form supplied by the respondent, and that should have been

treated as sufficient compliance by the respondent, I am of the view

that since the respondent DDA, as per its procedures requires attested

photographs and specimen signatures in a particular format,

independent of those affixed on the printed form, the DDA may be

justified in expecting the allottee to submit the same in the manner

prescribed. Therefore, this submission of the petitioner cannot be

accepted.

17. I now turn to the issue, whether the respondent is justified in

demanding that the petitioner should first deposit 50% of the monthly

instalments w.e.f. June 2001 onwards before possession of the flat is

delivered to her.

18. A perusal of the demand-cum-allotment letter with block

dated 30th July 1999 - 03rd August, 1999 shows that the initial deposit

was required to be made between 04.08.1999 - 02.09.1999 of

Rs.3,56,796.17. Thereafter, enhanced amounts could be paid which

included interest, upto 01.11.1999. The monthly instalments were to

commence from 10.10.1999. It, therefore, appears that the hire

purchase scheme under which the allotment in question was made to

the petitioner was premised on the fact that the allottee would make

initial deposit, and after the date of initial deposit there was a gap of

about one month before monthly instalments were to commence.

During the period of about one month from the date of initial deposit to

the date of commencement of the monthly instalments, the

respondent was expected to process the case for delivery of

possession, provided the documents required of the allottee were

submitted. Therefore, the monthly instalments were timed to

commence around the same time as the possession of the flat was

expected to be delivered plus/minus a couple of months. Considering

the fact that there are 120 instalments to be paid, practically all the

instalments, except a couple of them, were expected to be paid after

delivery of possession, if one keeps in mind the time limits set out by

the respondent in its own "Citizens Charter" for delivery of possession

i.e. 60 days.

19. The Shorter Oxford English Dictionary defines "hire", inter

alia, as "payment under contract for the use of something"

(emphasis suppied). "Hire Purchase System" is defined as "by which

something hired becomes the hirer's after a certain number of

payments". Though the provisions of the Hire Purchase Act 1972 are

not squarely applicable, as I am concerned with a transaction relating

to immovable property and not to that of goods, the same principle

can be borrowed from the said Act to understand and appreciate the

Hire Purchase System applicable in a case like the present. The

expression "hirer" has been defined to mean "the person who obtains

and has obtained the possession of goods from a owner under a hire

purchase agreement..................". "Hire Purchase Agreement" is

defined to include an agreement under which "possession of the goods

is delivered by the owner thereof to a person on condition that such

person pays the agreed amount in periodical instalments..............".

Pertinently, since the flat in question was not ready for being offered to

the petitioner at the time when she made the initial deposit by the end

of November, 1999 and the respondent was able to complete the

construction in all respects only by May 2001, admittedly for this

reason the respondent vide its communications dated 17.03.2003 and

10.07.2003 required the petitioner to deposit the monthly instalments

w.e.f. May 2001, and 50% of the monthly instalments w.e.f. June 2001,

respectively. Consequently, the respondent itself acknowledged while

issuing these communications that the obligation to pay the hire

charges by the allottee would arise only after the DDA was in a position

to deliver possession of the flat to the allottee and not before that. On

a consideration of the aforesaid aspects, I conclude that the obligation

to pay the monthly instalments under the Hire-Purchase Scheme would

substantially arise only when the respondent is in a position to deliver

possession of the flat and in fact offers the flat to the allottee.

However, where the allottee has not complied with the pre-requisites

prescribed therefor, and that is the reason for the delay in delivery of

the possession and not for any default of the DDA, the allottee would

be liable to pay the arrears of instalments for the period for which

he/she delayed the process of delivery of possession of the flat to

him/her. This is also the ratio of the decision relied upon by the

respondent in Sheel Kumar Sethi (supra). In that case, since the

delay was attributable to the allottee, the Court held that the allottee

could not take the benefit of the delay caused by him. The relevant

extract from the said judgment reads as follows:

"There is no doubt about the proposition that if the petitioner had paid the amounts within time and submitted the documents in time, respondent was not entitled to cancel the allotment of flat. However, if an allottee delays in submission of documents but simultaneously does not pay the amount due ostensibly because of the reason that the said instalments are liable to be paid only after possession is to be handed over, such an allottee cannot avail the benefit of delaying his payment of instalment by reason of non submission of documents. In the present case the petitioner has been allotted the flat at the old cost. The instalments are also liable to be paid in terms of the original allotment. However, interest is sought to be charged on the instalment which the petitioner is liable to pay and which have been delayed. The late submission of the documents is the fault of the petitioner and that cannot be the reason to delay payment of instalments claiming that the said instalments would be paid only after the possession is handed over. In view thereof, I see no infirmity in the stand of the respondent DDA in charging interest for the delayed instalments."

20. The question is, whether the respondent was right in insisting

that the petitioner deposits the monthly instalments w.e.f. May 2001,

as demanded vide communication dated 17.03.2003 or 50% of the

monthly instalments w.e.f. June 2001, as demanded vide letter dated

10.07.2003 when the respondent had not offered the possession to the

petitioner earlier, for no fault of the petitioner.

21. The respondent has sought to place reliance on its office

order dated 27.06.2002. To my mind, this is of no avail. The office

order dated 27.06.2002 read as follows:

"Various cases have come to notice where the allottees deposited the initial demanded amount in time in hire purchase cases but possession letters could not be issued to them in time and by the time those were ready few

monthly instalments became due on the allottee. DDA asked for payment of those monthly instalments first before giving the possession letter. In the process possession letters got delayed resulting into increasing penal interest on allottees causing resentment among allottees. To over-come this problem, it has been decided that:

1. Penal interest as per applicable terms on over due instalments shall be worked out taking into account two extra months following the month of calculation to allow time to make payment by allottee.

2. Amount due on account of monthly instalments in the manner mentioned above shall also be calculated.

3. Total amount payable for 1 & 2 would be worked out.

4. Once the allottee pays 50% of 1 & 2 above possession letter will be issued.

5. Balance 50% will have to be paid in monthly instalments along with remaining regular monthly instalments. In other words, balance 50% will be treated principal amount and its hire purchase instalments will be worked out on the basis of present rate of interest.

This issues with the approval of FM/VC, DDA in the file No.F.45[26]98/KG/NP."

22. What is provided by the aforesaid office order dated

27.06.2002 is that even when the respondent DDA has failed to offer

possession to the allottee under the hire purchase scheme, it would

still insist not only on payment of 50% of the monthly instalments due

according to the allotment letter, but also demand penal interest on

the overdue instalments, which would be worked out taking into

account 2 extra months following the month of calculation to allow

time to make payment by the allottee.

23. In my view, the aforesaid office order of the DDA does not

offer an equitable resolution of the complications arising on account of

the failure of the respondent DDA to offer possession of the flat to the

allottee within time. The allottee takes a flat on hire purchase basis

since he is not in a position to make payment of the full price of the flat

as a lump sum. Normally, an allottee who is possessed of the requisite

funds to pay the entire price of the flat allotted to him, would accept

the allotment on cash down basis or would get the allotment converted

to one under the cash down payment scheme, if permissible. This is so

because under the hire purchase scheme the allottee has to pay the

instalments which have the in-built element of interest. The purpose of

granting the facility to the allottee of taking a flat under the hire

purchase scheme is to provide comfort to the allottee of making

payment in easy instalments, though with interest, since he may not

be possessed of the entire funds to make a lump sum payment. The

allottee may, by obtaining possession of the flat, by making the initial

deposit either use and occupy the flat himself, and thereby save on

rent on other charges that he may be incurring by residing in some

other premises, or may let out the same and derive income from the

flat. In either case he would augment his resources to be able to make

payment of the monthly instalments under the hire purchase scheme.

However, if the DDA itself fails to offer possession of the flat to the

alltottee, thereby depriving the allottee the right to occupy, use and

exploit the allotted flat, and then demands that the allottee makes

payment of 50% of the overdue instalments in a lump sum alongwith

the penal interest before possession is offered, in my view, the DDA

strikes on the fundamental premise of the hire purchase scheme.

Moreover, by requiring payment of 50% of the overdue instalments

and penal interest thereon, the respondent DDA, in fact, seeks to take

advantage of its own wrongs and failure which cannot be permitted,

and is highly unjust. In (2002) V AD Delhi 290 Prabha Arora v. DDA,

the petitioner had duly paid the amount as to when payable under the

allotment-cum-demand letter. The petitioner was required to pay only

the hire purchase instalments. The DDA wrongfully cancelled the

allotment and hence the petitioner could not make payment in respect

of the instalments. The respondent subsequently accepted their error

and made allotment of flat to the petitioner. However, the respondent

claimed interest on the overdue instalments @ 12% p.a. The Court

rejected this claim of the respondent by holding that in the

circumstances of the case the petitioner could not be burdened with

interest as there was no unpaid amount when the allotment was

cancelled. In the present case as well, there is no unpaid amount,

since the respondent had failed to offer possession to the petitioner for

no fault of hers.

24. Therefore, I am of the view that the respondent DDA was not

justified in requiring the petitioner to deposit 50% of the arrears of

instalments from June 2001 onwards as a pre-condition for delivery of

possession of the flat to her.

25. The petitioner claims interest on the initial deposit made by

her of Rs.3,87,000/- on or before 30.11.1999 for the period for which

she has not been placed in possession of the allotted flat. In support of this

claim, learned counsel for the petitioner has relied on various decisions

of this Court. In L.P.A. No.62/2000 decided on 10.01.2002 by a Division

Bench of this Court, despite the fact that the appellant had paid all the

instalments within time, the possession of the flat was offered only

after about 2 years. No explanation was forthcoming as to why the

possession of the flat was not given to the appellant immediately after

he had made payment. In these circumstances, the Court held that

the DDA was obliged to pay interest to the appellant for offering the

possession of the flat almost two years after the payment of last

instalment to the DDA. The Court observed that the appellant had

obtained a housing loan by paying interest @ 13.5%. The court

granted interest to the Appellant @ 12% on the amount deposited by

the appellant for the delay caused in delivery of the possession of the

flat.

26. In W.P.(C) No.711/1994 decided on 09.09.2003 by a learned

Single Judge of this Court, the petitioners had deposited the entire

amount towards the cost of the flat. The petitioners had sought

allotment of adjacent flats being related to each other. The said

request was allowed. However, the new allotments made to them

were in respect of flats which had already been allotted to other

persons. Representations were made by the petitioners in the year

1985. Finally, fresh allotment was made in a draw of lots held on

07.04.1992. The petitioners filed the aforesaid writ petition claiming

allotment on the rates prevalent on 04.05.1998 when the petitioners

agreed to change of the flats, and also sought interest on the amounts

already deposited. The Court dealt with the aforesaid aspect in the

following manner: -

"The only question now to be considered in the present writ petition is the claim of interest made by the DDA on the amount deposited belatedly by the petitioners. Learned counsel for the respondent states that the interest has been charged as per policy though it is admitted that in case of petitioner No.3, there has been delay in issuing of the allotment letter itself. Despite this fact, even the said petitioner is sought to be charged penal interest for the amount deposited late.

Taking all the aforesaid facts and circumstances of the case, I am of the considered view that if interest is to be charged in respect of the petitioners taking into consideration the delay in making payments in pursuance to the allotment letter, the petitioners are entitled to interest at the same rate on the amount deposited by them. Thus, while calculating the cost to be paid by the petitioners, interest as per the policy of the DDA can be charged for delay in payment from the date of issuance of the allotment letter till date of payment but simultaneously interest shall also be paid on the amount deposited by the petitioners at the same rate.

In this behalf, learned counsel for the petitioners relied upon a judgment in Civil Writ Petition 4929/1994 Shri Vinod Sehgal v. DSIDC decided on 11.12.1998 where the Division Bench granted interest to both the parties at the same rate."

27. Similarly, in C.W.P. No.3770/2003 "Ratan Chand v. DDA",

decided by a learned single Judge of this Court on 13.10.2003, interest

was granted to the allottee on the amount deposited on account of

delay in delivery of possession of the flat.

28. Since I am of the view that in the present case, the delays and

defaults are attributable to the respondent and not to the petitioner,

the petitioner is entitled to the grant of interest claimed by her on the

initial deposit of Rs.3,87,000/- made on or before 30.11.1999 upto the

date that she is placed in possession of the flat allotted to her.

Keeping in view the long period involved in the present case, it would

equitable to require the respondent to pay interest to the petitioner @

8% p.a. from 01.04.2000 onwards, till the time the possession is

delivered to the petitioner by the respondent. I have fixed the cut off

date as 01.04.2000, keeping in view the fact that the petitioner had

submitted the documents along with the forwarding letter on

01.02.2000, and even according to the respondent's own "Citizens

Charter" the time limit for delivery of possession of the flat is fixed as

60 days.

29. For all the aforesaid reasons, I allow this writ petition and

direct the respondent to deliver the possession of the flat in question

bearing flat No.405 (FST), Pocket-A, Sector-13, Dwarka to the

petitioner within 6 weeks. The obligation of the petitioner to

commence payment of the monthly instalments in terms of the demad-

cum-allotment letter would arise immediately upon delivery of the

possession of the flat to the petitioner. The respondent is also directed

to pay interest @ 8% p.a. to the petitioner on the amount of

Rs.3,87,000/- from 01.04.2000 onwards till the petitioner is placed in

possession of the aforesaid flat. The interest be paid within 8 weeks

from today. In case the respondent does not make payment of the

interest, as ordered, the petitioner shall be entitled to claim

adjustment thereof in the monthly instalments to be paid by her. The

petitioner is also awarded costs of Rs.10,000/- to be paid by the

respondents.

30. Petition stands disposed of.

VIPIN SANGHI, J.

August 11, 2008 aj/rsk