Trinity Colonizers Pvt Ltd vs Dda
2011 Latest Caselaw 5573 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                  Decided on : 18.11.2011

+             W.P.(C) 8034/2011 & C.M. No.18098/2011

IN THE MATTER OF
TRINITY COLONIZERS PVT LTD                                  ..... Petitioner
                    Through:         Mr. Jitender Vohra, Advocate

                    versus

DDA                                                       ..... Respondent
                         Through:    Mr. Ajay Verma with Mr. Mukesh
                                     Kumar, Advocates



CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may                Yes
        be allowed to see the Judgment?

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

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


HIMA KOHLI, J. (ORAL)

1. This order is in continuation of the order dated 16.11.2011,

whereunder in view of the submission made on behalf of the petitioner

that it was being discriminated against a similarly placed party who had

also defaulted in making good the balance 75% of the bid amount for a

plot adjoining the petitioner‟s and yet its plot had not been put up for re-

auctioning by the DDA, counsel for the respondent/DDA was directed to

obtain instructions as to the fate of the representation made by the

aforesaid party pursuant to liberty granted to it by the Court while

disposing of a petition filed by it registered as WP(C)No.477/2010

entitled „M/s. Ideas Plus Ink Constructions (P) Ltd. vs. DDA & Ors.‟

2. Counsel for the respondent/DDA states today, on instructions from

his client, that DDA has decided to reject the representation of M/s Ideas

Plus Ink Constructions (P) Ltd. and it proposes to re-auction the said plot,

for which purpose, the file of the case has been put up before the

competent authority for appropriate orders. Now that the respondent/DDA

has clarified its position with regard to the adjoining plot, the plea of the

petitioner that it is being treated by DDA on a different footing, does not

hold true.

3. In so far as the merits of the present case are concerned, it is

undisputed that the petitioner had participated in a bid for auction of

residential plots by the DDA in the year 2008 and was declared as the

successful bidder in respect of the subject plot No.131 Pocket-II, Jasola,

Delhi, deposited 25% (`1,25,00,000/-) of the total bid amount, i.e.,

`4,96,50,000/-, as earnest money. As per the terms and conditions for

sale by auction, the petitioner was required to deposit the balance 75% of

the bid amount, i.e., `3,71,000/-, by 21.7.2008, but it grossly defaulted

in doing so. The explanation offered by the learned counsel for the

petitioner for the default in payment is that there was a recession in the

market, as a result of which the petitioner was facing a financial crunch

and hence requests were made by it to the respondent/DDA for extension

of time to arrange funds to make good the balance payment. Pertinently,

requests made by the petitioner for extension of time starting from June,

2008 continued to be repeated from time to time, without a single penny

being paid by it to the respondent/DDA in the meantime towards the

balance 75 % of the bid amount.

4. Today, it is submitted by the counsel for the petitioner that the

respondent/DDA repeatedly sent cancellation letters to the petitioner

without specifying a cancellation date, thus creating a confusion in the

mind of the petitioner as to whether its bid had been cancelled or not. It

is submitted that for the said reason, the petitioner had not been

depositing any money towards the balance 75% of bid amount as it

remained uncertain about cancellation of the bid.

5. The aforesaid plea raised by the petitioner is rejected as being

devoid of merits. Merely because vide letter dated 08.12.2008, the

respondent/DDA extended the time by 180 days to enable the petitioner

to deposit the balance 75% of the bid amount which it failed to do, and

further, the petitioner was extended the courtesy of being sent a letter

dated 30.10.2009 by the respondent/DDA (Annexure P-15) intimating it

that its earnest money would be forfeited on account of default in the

payment of balance amount in respect of the subject plot, cannot now

come to the aid of the petitioner, to explain the gross default on its part

to pay the said amount. Similarly, vide the letter dated 1.8.2011

(Annexure P-21), the respondent/DDA once again informed the petitioner

about the forfeiture of the balance bid amount due to default in payment

while also reiterating the terms and conditions for sale by auction,

particularly, clause 10 thereof, which reads as follows:-

"10. In case, the highest bidder fails to make the balance 75% amount within the stipulated period, as mentioned in the demand letter or within such extended period, if any granted by the Competent Authority on his written application, the bid shall automatically stand cancelled and the Earnest Money shall stand forfeited. In that eventuality, the competent authority shall be competent to re-auction the residential plot."

6. Both the aforesaid letters establish that sufficient notice had been

given by the respondent/DDA to the petitioner to make good the default

and pay the balance bid amount and only thereafter was its allotment

cancelled. Thus, the contention of the petitioner of being treated

arbitrarily, also does not hold good. Rather, facts reveal that the

petitioner was given a long rope by the respondent/DDA, but it failed to

take advantage of the same by depositing the balance amount.

7. As regards the reliance placed by the learned counsel for petitioner

on a judgment of a Single Judge in the case of „Kailash Nath & Associates

(M/S) vs. DDA & Anr.‟, reported as 2007 IX AD (DELHI) 137, the said

judgment would not be of any assistance to the petitioner for the reason

that though it dealt with a bid for sale of land, it was a decision rendered

in respect of a civil suit for specific performance of an agreement to sell

filed against the respondent/DDA and in the alternative, for recovery of

damages with interest, where pleadings were completed, documents filed,

issues framed and evidence led and only after examining the facts of the

case, the Court came to the conclusion in the said case that having

extended the time for making the payment, it would be deemed that the

defendant/DDA had treated the contract as subsisting which is why it was

at least required to issue a notice to the plaintiff therein to perform the

agreement before terminating it. In the present case, vide letter dated

30.10.2009, the respondent/DDA duly put the petitioner to notice that

failure to deposit the balance payment would result in forfeiture of the

earnest money in terms of the conditions of auction. Despite the same,

the petitioner failed to deposit the balance payment. Nothing has been

placed on record by the petitioner to indicate that the respondent/DDA

had given an impression to it that it was treating the contract as

subsisting. Thus the findings in the aforesaid judgment would not have

any application to the present case. Furthermore, in the aforesaid case,

the Court had pronounced the judgment in the context of the issues

framed which were with regard to the entitlement of the plaintiff therein

to the plot, for relief of specific performance and in the alternative, for

recovery of damages. In the present case, the petitioner has not even

bothered to take the aforesaid ground of there being a subsisting contract

in its writ petition, which has been argued at length on two running dates

and has culminated in the passing of the present order. The arguments

urged today are quite apparently an afterthought and an attempt to

improve upon the petitioner‟s case, which cannot be permitted.

8. The terms and conditions of the sale by auction, are a matter of

contract between the parties, and the petitioner, who was well aware of

those terms, cannot seek alteration/variation thereof at a later date, as

per its own whims and fancies. Pertinently, the petitioner has woken up

from its deep slumber and chosen to approach the Court only on the eve

of the re-auction of the subject plot, which is fixed for today and in

respect of which, the advertisements were issued in the press by the

respondent/DDA more than a month ago, on 15.10.2011. Having regard

to the clear and categorical stand of the respondent/DDA that the earnest

money deposited by the petitioner stands forfeited on account of non-

payment of balance 75% bid amount, despite extensions granted to it,

this Court is of the opinion that the petitioner is not entitled to grant of

any relief in the present proceedings.

9. For all the aforesaid reasons, the present writ petition is dismissed

in limine, along with the pending application, being devoid of merits.

                                                       (HIMA KOHLI)
NOVEMBER 18, 2011                                          JUDGE
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