Lamba Press And Sheara Pvt. Ltd. vs Union Of India & Ors.
2011 Latest Caselaw 2954 Del

I-14

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 01.06.2011

+ R.S.A.No. 80/2003 & CM Nos. 3148/2009 ( U O 41 R-27
CPC) & 253/2003 (for stay)

LAMBA PRESS AND SHEARA PVT. LTD.
                                 ...........Appellant
                 Through: Mr. Sumit Bansal along with
                          Mr. Vaibhav Arora, Advocates.

                         Versus

UNION OF INDIA & ORS.
                                                .......Respondents
                         Through:    Ms. Anusuya Salwan along
                                     with   Ms.   Neha   Mittal,
                                     Advocates.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

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

     2. To be referred to the Reporter or not?             Yes

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

INDERMEET KAUR, J. (Oral)

1. This appeal has impugned the judgment and decree dated

14.02.2003 which had endorsed the finding of the trial judge

dated 08.03.2001 whereby the suit filed by the plaintiff seeking

relief for permanent and mandatory injunction to the effect that

the defendant be restrained from transferring/parting with the

possession of the disputed plot (i.e. plot no 209/3, Block-C,

Mayapuri Industrial Area, Phase-II, New Delhi measuring 525.93

sq. mts) had been dismissed.

2. The case of the plaintiff is that it was a company having

successfully bid at the auction of the defendant/Delhi

Development Authority (DDA) held on 23.12.1988. The plaintiff

being the successful bidder; 25% of the bid amount i.e. Rs.

6,70,000/- had been paid on the date of the auction and the

balance 75% had to be paid within next 30 days, i.e. by

23.01.1989. Contention of the plaintiff is that the land was

encroached upon by jhuggis; he made several communications to

the department including his letters dated 05.01.1989 as also

09.01.1989 requesting them to remove the said encroachment in

order that he could make the payment of the balance amount;

DDA had, however, failed to adhere to this request; the proposed

action of the DDA seeking to cancel his plot was illegal and

arbitrary; present suit was accordingly filed.

3. In the written statement, defense was that the plaintiff had

paid 25% of the bid amount; auction was on and as is where is

basis; the site was inspected by the plaintiff prior to making his

bid; it was denied that the plaintiff learnt about this encroachment

after he had effected the bid; it was stated that the plaintiff had

bid after due inspection of the site; letter dated 05.01.1989 was

not disputed but its contents were denied; it was denied that the

plaintiff was ready and willing to make the payment of the balance

amount of 75% within time.

4. On pleadings of the parties, following issues were framed:-

1. Whether the suit of the plaintiff is liable to be

dismissed in the absence of notice U/s 53 B of DD Act? OPD

2. Whether the suit is not maintainable in the present

form? OPD

3. Whether the plaintiff is liable to pay the court fees on

the market value of the land? OPD.

4. Whether the plaintiff is entitled to the relief claimed?

OPP

5. Relief.

5. Oral and documentary evidence was led.

6. Suit of the plaintiff was dismissed. Trial judge was of the

view that the plaintiff had failed to deposit 75% balance amount

within the stipulated time. This period could not have enlarged;

he was not entitled to any relief.

7. This finding was endorsed in the first appellate court.

8. This is a second appeal. It is yet at the stage of admission.

Substantial question of law had been embodied at page 7 of the

body of the appeal.

9. On behalf of the appellant, it has been urged that the

impugned judgment suffers from an illegality as it has failed to

consider the law laid down by this court in the Judgment reported

in 2003 VIII AD (Delhi) 461 Jakson Engineers Pvt. Ltd. Vs. Delhi

Development Authority and Ors. as also the Judgment of the

Division Bench reported in 1996 (39) DRJ DDA Vs. Jackson

Engineers Pvt. Ltd (page 1). It is pointed out that both these

judgments had on similar facts; held that where there is an

encroachment and the land is not vacant, it was the obligation of

the DDA to remove the encroachment; in the absence of this

obligation having been performed by the public department; the

plaintiff had rightly not paid the balance amount within the

stipulated period; on the ratio of the aforenoted pattern, the

plaintiff is entitled to relief.

10. Arguments have been countered. Learned counsel for the

respondent has pointed out that the period of payment of the

balance could not be extended on any count, reliance has been

placed upon the Judgment reported in 56 (1994) DLT 37 M/S.

Behere Brother Vs. Delhi Development Authority and Another as

also another Judgment of this Court reported in 71 (1998) DLT

642 V.K. Khosla Vs. Union of India & Ors. It is pointed out that

both these judgments had examined the Delhi Development

Authority (Disposal of Developed Nazul Land), Rules, 1981 and in

this context, it noted that prior to 25.02.1989, there was no

discretion even for a sufficient reason to extend the last date of

payment in an auction bid; it is pointed out that the instant case

clearly relates to the period prior to 25.02.1989; appellant is not

entitled to any relief. It is further submitted that the department

had rightfully forfeited the amount and for this proposition

reliance has been placed upon the Judgment reported in 69 (1997)

DLT 716 Aggarwal Associates (Promoters) Ltd. Vs. Delhi

Development Authority & Anr.

11. On the last argument urged by the learned counsel for the

respondent, counsel for the appellant has no quarrel; it is not in

dispute that if the allotment of the plot is not granted in favour of

the appellant/plaintiff, there is no dispute that the amount of

earnest money deposited by the appellant can rightfully be

forfeited by the department.

12. There are two concurrent findings against the appellant.

Both fact finding courts below had noted that PW-3 had himself

come into the witness box and admitted in his cross-examination

that two to three days prior to the bid, he had inspected the site;

he had bid for the auction with his eyes open and 25% of the bid

amount i.e 6,70,000/-.had been deposited by him; terms and

conditions of the bid document are also not in dispute. It is also

not in dispute that within 30 days from 23.12.1988 i.e. by

23.01.1989, the balance amount of 75% had to be deposited by

the defendant. It is also not disputed that the said amount has not

since been deposited.

13. Learned counsel for the appellant in the course of these

proceedings had filed an application under Order 41 Rule 27 of

the Code wherein he has sought to place on record certain

documents which as per his content would advance his case and

would show that on the date of the auction, there were

encroachments found on the suit land. The documents sought to

be adduced by way of additional evidence have been noted. They

are notings of the department. These notings, in fact, negatived

the case of the appellant. Letter of 25.03.2004 reveals that the

plot seemed to be free from encroachment; noting of 29.03.2006

also states that on inspection of the site, plot was lying vacant.

On a specific query put to the learned counsel for the appellant,

there is a little answer; it is stated that this encroachment had

been removed only in 2004; even if this is correct, the documents

sought to be adduced by way of an additional evidence do not

support the contention that at the time when the auction was

conducted, there was an encroachment on the site. There is also

no sufficient reason or explanation as to why these documents did

not see the light in the two fact finding courts below. The

discretion of the second appellate court to admit additional

evidence under Order 41 Rule 27 of the Code is undisputed. It,

however, has to be exercised to meet the ends of justice and if the

said evidence is required for the just decision of the case, such an

application must also satisfy the court that in spite of due

diligence, appellant could not have adduced the said evidence in

the two courts below.

14. None of the aforenoted requirements have been met with.

The merits of the documents have also been adverted to; they do

not advance the submissions of the appellant. Application under

Order 41 Rule 27 had no merit. It is dismissed.

15. The case of the appellant is now hinged upon the judgments

relied upon by him and as noted supra. In the Judgment of the

Division Bench, the writ of mandamus which had been sought by

the petitioner had been declined. The Judgment of the Division

Bench was against an order passed in a petition under Section 20

of the Arbitration Act where there was a plea for the appointment

of the arbitrator; this plea has not been acceded to; the hardship

suffered by the respondent had been noted but no relief had been

granted to him. The Judgment of the Single Judge reported as

Jackson Engineers Pvt. Ltd (supra) is vehemently relied upon by

the learned counsel for the appellant. This Judgment is

distinguishable. In this case, site has not been inspected at the

time when the petitioner has made his bid on the auction. This is

clear from para 2 and 3; in this case, the petitioner had also

showed his bona fides by appending the balance amount of 75%

for which he had obtained a loan and the pay order in the said

amount had been affixed along with his petition; these

circumstances had been singled out to grant him the relief of an

allotment. Both these conditions are missing in the instant case.

In the case, the testimony of PW-3 shows that the site has been

inspected prior to the bid; plaintiff has bid with his eyes open,

fully aware of the physical status at site. Submission of the

learned counsel for the Department is that encroached plots carry

a lower bid and those which are vacant and free carry a higher bid

and this also has to be kept in mind; prices of the property vary

accordingly.

16 The willingness and readiness on the part of the petitioner

to perform his obligation has also not been satisfied. Letters

dated 05.01.1989 as also 09.01.1989, although are admitted to

have been received by the department but in the written

statement, content of letter dated 05.01.1989 had been

specifically denied; in this contingency it was incumbent upon the

plaintiff to have placed the said letter on record but it had not

done so. The first letter which was proved by the plaintiff is dated

25.01.1989; this was after 30 days from 23.12.1988 i.e.when 75 %

of the bid amount had to be deposited by him i.e. by 23.01.1989.

The first communication of the plaintiff proved on record is dated

25.01.1989 informing the department that there was an

encroachment and that is why he was not willing to pay the

balance amount; this was after the stipulated dated of 23.01.1989.

17 Division Bench of this court (in the judgments relied upon by

the learned counsel for the DDA) while examining the Nazul Rules

had noted that in auction bids for property prior to 25.02.1989,

there was no proviso to Rule 29; there was no scope of extension

of time for payment of the balance amount even if sufficient

reason has been explained; proviso has been inserted

only by the amendment of 25.02.1989; the case of the plaintiff is

prior to 25.02.1989. On this count also, extension of time could

not have been granted in favour of such party.

18 On no count does the impugned judgment suffer from any

infirmity. Substantial question of law is answered in favour of the

respondent and against the appellant. Appeal is without any

merit. Appeal as also the pending applications are dismissed.

INDERMEET KAUR, J.

JUNE 01, 2011 ss