Nitin Kataria vs Dda
2010 Latest Caselaw 2483 Del

06.
$~
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Judgment dated on: 10.05.2010

+      W.P.(C) 3901/2008

       NITIN KATARIA                                     ..... Petitioner
                  Through :     Mr. N. Kinra, Adv.

                   versus

       D.D.A.                                            ..... Respondent
                   Through :    Mr. Ajay Verma, Adv.

       CORAM:
       HON'BLE MR. JUSTICE G.S.SISTANI

          1. Whether the Reporters of local papers may be allowed to see
             the judgment?
          2. To be referred to Reporter or not?
          3. Whether the judgment should be reported in the Digest?

G.S.SISTANI, J. (ORAL)

1. Rule. With the consent of counsel for the parties, writ petition is set

down for final hearing and disposal.

2. Brief facts of the case, as set out in the present petition, are that the

petitioner had booked a MIG flat in the year 2006. Petitioner was

allotted a flat bearing no.18, Block M-2, Pocket 4, Sector A-9, Narela,

vide letter dated 5.3.2007. As per the demand-cum-allotment letter,

a copy of which has been placed on record, petitioner was to deposit

a sum of Rs.11,68,737/- by 31.3.2007 and thereafter a sum of

Rs.12,11,964/- with interest upto 1.9.2007. On 3.9.2007, petitioner

received a letter from the SBI that the challans had not been cleared

due to shortfall in the amount. The petitioner is stated to have

cleared the shortfall in the sum of Rs. 5500/- on 25.10.2007. The petitioner was, in the meanwhile, asked by the DDA to obtain a

certificate of clearance from the Bank to show that petitioner had

deposited the full payment of Rs.12,12,000/-. Petitioner obtained

the necessary certificate from the bank on 16.11.2007 and

submitted the same to the DDA.

3. The case of the petitioner is that the amounts were deposited by

him from time to time by means of demand drafts, which were

issued by the State Bank of India in favour of the Delhi Development

Authority on the following dates:

        Sl. No.   Challan No.         Date          Amount

        1.        11051               31.8.2007     1,80,000/-

        2.        98823               31.8.2007     35,000/-

        3.        82684               31.8.2007     1,96,000/-

        4.        82683               31.8.2007     1,47,000/-

        5.        82685               31.8.2007     1,96,000/-

        6.        82687               31.8.2007     1,96,000/-

        7.        116203              1.9.2007      2,62,000/-

                                      Total         12,12,000/-

4. The grievance of the petitioner is that DDA has failed to condone

the delay and hand over possession of the flat for which the entire

amount stands paid in the year 2007.

5. Mr.Kinra submits that two bank drafts in the sum of Rs.1,96,000/-,

each, dated 31.8.2007 were, in fact, short by Rs.5,500/-. Counsel

further submits that this error occurred inadvertently, which is evident from the fact that the correct amount was filled up in the

challan, a photocopy of which has been placed on record at pages

17 and 18 of the paper book. The error was not noticed by the State

Bank of India when the amount was deposited and the challans

were duly stamped by the bank. Mr.Kinra submits that while all

other bank drafts were credited to the account of the DDA these two

bank drafts were kept in Suspense Account by the bank. DDA

thereafter addressed a communication to the State Bank of India

seeking a clarification whether all bank drafts were received on

31.8.2007 and, if not, the actual date of deposit of additional bank

drafts and the reasons for abnormal delay in credit. The State Bank

of India issued a clarification to the DDA vide letter dated

27.11.2009, relevant portion of which has been reproduced in the

counter affidavit and, which reads as under:

"challan No.82685 and 82687 for Rs.1,96,000/- each were deposited on 31.8.07 but with less amount of Rs.1500/- and Rs.4000/- respectively. On receipt of challans on the same of advice to deposit writing on 3.9.07 but deposited on 25.10.07 with D. Draft of balance amount. Hence total amount of challan under question were sent to DDA on 27.10.07." (sic)

6. Admittedly, the petitioner made up the deficiency and the bank

credited the amount in the account of the DDA on 25.10.2007. Thus,

according to the DDA, there was a delay of 57 days in receipt of

Rs.3,68,000/- as the Bank had not bothered to credit in the account

of the DDA, although the amount was in their possession, though

short by only Rs.5500/-. While counsel for the petitioner contends

that the shortfall was of only Rs.5500/- and for this bona fide mistake the flat allotted by the DDA to the petitioner cannot be

cancelled.

7. It is the case of the DDA that there was a shortfall of Rs.3,92,000/-

which was received by the DDA only on 25.10.2007.

8. Counsel for the petitioner submits that taking into consideration the

peculiar facts of this case and the bona fide mistake of the

petitioner as also the bank, it was a fit case for the DDA to have

applied its policy dated 1.6.2000 and should have condoned the

delay in receiving the payment, more particularly, when the

petitioner had deposited the entire payment with the Bank except

Rs.5500/-.

9. Counsel for the respondent submits that the policy dated 1.6.2000

would not be applicable to the facts of this case, firstly, on the

ground that the policy pertains to the year 2000 and the petitioner

had applied in the Scheme of 2006 and, secondly, on the ground

that the policy was formulated to condone delay in cases where

problems were faced by the concerned allottees in making the

payment.

10. I have heard counsel for the parties and also perused the pleadings

and documents filed along with the petitioner. The basic facts are

not in dispute that petitioner made an application to the DDA for

allotment of A MIG flat in the year 2006. As per the demand-cum-

allotment letter issued to the petitioner by the DDA, the last date for

making the entire payment with interest in the sum of

Rs.12,11,964/- was upto 1.9.2007. The petitioner deposited various bank drafts with the State Bank of India, as is evident from the

challans, copies of which have been placed on record. As per the

challans, the petitioner had deposited the entire sum of

Rs.12,11,964/-, however, on close scrutiny after receipt of the

payment and after stamping the challan the Bank noticed that two

bank drafts totaling Rs.1,96,000/-, each were short by Rs.1500/- and

Rs.4000/- respectively. Thus the bank did not credit two bank drafts

in the account of the DDA without any plausible reason. The bank

did not credit two bank drafts in the account of the DDA and kept

this amount in a suspense account with the result that DDA received

the amount after 1.9.2007 and only on 25.10.2007 when the matter

was cleared and the short fall was made up by the petitioner.

Counsel for the petitioner has placed reliance on the certificate

issued by the State Bank of India dated 16.11.2007 wherein the

Bank has given the details, in the form of a chart, as to when the

challan was deposited and when, in fact, the amount was credited in

the account of the DDA. The chart is reproduced below:

      Challan         Challan No.    Credited on       CHIEF          -
      Received                       your     a/c      MANAGER
      on                             Received on       Amount

      31-8-07         82684          6.9.07            19,6000/-
      31-8-07         82683          6.9.07            1,47,000/-
      31-8-07         98823          6.9.07              35,000/-
      1-9-07          116203         6.9.07            2,62,000/-
      31-8-07         11051          6.9.07            1,80,000/-
      31-8-07         82687          27.10.07          1,96,000/-
      31-8-07         82685          27.10.07          1,96,000/-

                                                       12,12,000/-

11. A careful reading of the certificate issued by the Bank would show

that the amount deposited on 31.8.07 was credited to the account

of the DDA on 6.9.2007, however, with regard to two bank drafts the

amount was credited in October, 2007. No doubt there is a delay of

57 days in crediting the amount in the account of the DDA but the

shortfall on the part of the petitioner is only of Rs.5500/- and not of

Rs.3,62,000/-, as stated by the DDA. Petitioner has given instances

in various cases where DDA has condoned the delay in making the

payment. Having regard to the peculiar facts of this case where the

petitioner deposited the entire amount with the bank within the time

allowed except Rs.5500/- by mistake which was neither noticed by

the petitioner not the bank while accepting the money, in fact, the

bank has stamped the challans in acceptance of receipt of the

money, I am of the view that this is a fit case for condonation of

delay in making the payment. Taking into consideration the policy of

the DDA, which has been formulated keeping in view the hardship

being faced by some of the allottees, which shows that in genuine

and deserving cases the DDA has the discretion to condon the delay

Accordingly, delay is condoned. Order of cancellation is quashed.

Petitioner will pay the interest @ 12% on Rs.5500/- for 57 days.

Plot will be handed over to the petitioner within a period of three

months from the date of receipt of copy of this order and upon

completion of all formalities being completed meanwhile.

G.S. SISTANI, J.

May 10, 2010 'msr'