Jitender Yadav vs Dda
2012 Latest Caselaw 1446 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI


+                            W.P.(C) 8434/2010


                                                      Decided on: 01.03.2012
IN THE MATTER OF
JITENDER YADAV                                            ..... Petitioner
                         Through: Mr. Rohit Kumar Yadav, Advocate with
                         Mr. Ankit Sibbal, Advocate


                    versus


DDA                                                        ..... Respondent
                         Through: Mr. Rakesh Mittal, Advocate


CORAM
HON'BLE MS.JUSTICE HIMA KOHLI



HIMA KOHLI, J. (ORAL)

1. The present petition is filed by the petitioner praying inter alia

for directions to the respondent/DDA to refund the entire registration

amount after deducting surcharge as per clause 12 of the Brochure

pertaining to the „DDA Housing Scheme, 2008‟, alongwith interest payable

@ 15% from the date when the petitioner had become entitled for the

refund.

2. Learned counsel for the petitioner states that in the year 2008,

the respondent/DDA had floated the „DDA Housing Scheme, 2008‟. As per

the Brochure, if a successful applicant wanted to surrender or seek

cancellation of the allotted flat, he was required to pay cancellation charges

in terms of Clause 12, which is reproduced hereinbelow:-

"12. SURRENDER/CANCELLATION The successful applicants shall have the option to surrender the flats before the issue of the possession letter. Flat will be automatically cancelled in case payments are not made within the prescribed period. Now show cause notice shall be issued for the purpose. In both the cases , amount deposited is refundable without any interest. However, cancellation charges as prescribed below shall be recovered:

             S.     Surrender/Cancellation within following      Rupees
             No.    days From the date of demand letter
             1      Before issue of demand letter                    nil
             2      1st day               Upto 29th day          1000/-
             3      30th day              59th day               5000/-
             4      60th day              89th day              20000/-
             5      90th day              119th day             40000/-
                         th
             6      120 day               149th day             60000/-
             7      150th day             179th day             80000/-
             8      180th day onwards i.e. date of            100000/-"
                    automatic cancellation

3. In the present case, the petitioner had applied for allotment of a

flat under the aforesaid Scheme by submitting his application form on

10.09.2008 alongwith a cheque of `1,50,000/-. The draw of lots was held

on 16.12.2008, wherein the petitioner was declared a successful allottee in

respect of Flat No.955, Block-D, Type-B, Pocket-3, Bindapur (Dwarka), New

Delhi. On 20.11.2009, a demand-cum-allotment letter was issued to the

petitioner, wherein he was informed that the cost of the flat allotted to him

was `28,39,210.86 paise. After the petitioner visited the locality where the

flat had been allotted to him, he did not find it habitable. As a result, on

16.02.2010, he applied to the respondent/DDA informing that he wanted to

surrender the flat in question and requested it to refund the registration

amount of `1.5 lacs deposited by him alongwith his original documents.

4. It is the case of the petitioner that thereafter, he made a number

of representations to the respondent/DDA and personally visited the office of

the respondent/DDA for refund of the amount, but in July, 2010, the

respondent/DDA refunded only a sum of `50,000/- to the petitioner, while

deducting the balance sum of `1 lac. The aforesaid cheque of `50,000/-

was, however, not encashed and was returned by the petitioner on the

ground that the said amount was far short of the amount liable to be

refunded to him by the respondent/DDA in terms of the conditions stipulated

in Clause 12 of the Brochure. Thereafter, the petitioner repeatedly wrote to

the respondent/DDA and waited patiently for a long time, but to no avail.

Aggrieved by the aforesaid inaction on the part of the respondent/DDA, the

petitioner approached this Court by filing the present petition on

16.12.2010.

5. Learned counsel for the respondent/DDA states that on

24.12.2010, a sum of `1,30,000/- was ultimately refunded by the DDA to

the petitioner after making necessary deductions in accordance with the

terms and conditions laid down in the Brochure and that no further amount

is payable to him. He further states that in terms of Clause 12 of the

Brochure, the petitioner is not entitled to claim any interest on the amount

refunded by the DDA.

6. The limited issue that arises for consideration here is as to

whether the petitioner is entitled to receive any interest on the amount

refunded to him upon his surrendering the flat. Admittedly, initially in July,

2010, the respondent/DDA had refunded a sum of `50,000/- to the

petitioner. The aforesaid figure was arrived at by DDA by miscalculating the

date on which the petitioner had sought refund. Consequently, the refund

amount was calculated by DDA on the assumption that the petitioner had

sought cancellation of the flat after a period of 180 days from the date of

issuance of the demand letter whereas, admittedly in the present case, he

had sent a request for cancellation to the respondent/DDA within a period of

90 days from the date of issuance of the demand letter. As a result, the

amount forwarded by the respondent/DDA in July, 2010 as refund amount

was far short of the actual amount, to which the petitioner was entitled

under Clause 12 of the Brochure, i.e. `1,30,000/-.

7. In view of the aforesaid miscalculation on its part, only a sum of

`50,000/- was sought to be refunded by the respondent/DDA to the

petitioner, vide letter dated 15.07.2010. The petitioner however refused to

accept the said amount and returned the cheque to the respondent/DDA

with a request to re-examine his case. After re-examining his case, the

respondent/DDA rectified its mistake and prepared a cheque dated

03.12.2010 for a sum of `1,30,000/- in favour of the petitioner towards the

refund amount and dispatched the same to him under cover of letter dated

24.12.2010, i.e. about a week after the petitioner had filed the present

petition.

8. The petitioner could have very well encashed the amount of

`50,000/-forwarded to him by the respondent/DDA, in July, 2010 without

prejudice to his rights and contentions to claim additional amounts in terms

of the conditions stipulated in the Brochure alongwith interest for late

payment. Instead, he returned the said cheque to the respondent/DDA by

declining to accept the said amount on the ground that it was short of the

actual refund amount. To the aforesaid extent, the claim of the petitioner

for payment of interest on Rs.50,000/- is turned down.

9. Had the respondent/DDA correctly calculated the amount

payable to the petitioner for refund, in the first instance, then the petitioner

would have been entitled to a sum of `1,30,000/- as on 15.07.2010. If the

sum of `50,000/-, subject matter of the earlier cheque dispatched by the

respondent/DDA to the petitioner in July, 2010, is deducted from the total

refundable amount of `1,30,000/-, the balance amount comes to `80,000/-.

It is not in dispute that the aforesaid amount of `80,000/- ought to have

been refunded by the respondent/DDA to the petitioner within a reasonable

time from the date on which the petitioner had applied to the

respondent/DDA for refund, i.e. on 16.02.2010. Even when the petitioner

returned the cheque for `50,000/-, to respondent/DDA, it had already taken

five months to process the application of the petitioner for refund.

Admittedly, DDA took yet another five months to refund the entire sum of

`1,30,000/- to the petitioner, as per the conditions stipulated in the

Brochure.

10. In these circumstances, it is deemed appropriate to dispose of

the present petition with directions to the respondent/DDA to pay to the

petitioner simple interest on the balance refundable amount of `80,000/- @

12% per annum. The date from which the interest amount is to be

calculated by the respondent/DDA shall be w.e.f. 15.07.2010, the date on

which the earlier cheque of `50,000/- had been prepared and dispatched by

the respondent/DDA, to the petitioner, till the date of dispatch of the second

cheque, i.e. till 24.12.2010. After calculating the amount of interest

payable, a cheque for the said amount shall be prepared in favour of the

petitioner and dispatched alongwith a letter indicating the basis of

calculation, within a period of four weeks from today. In case, the cheque

for the interest amount is not forwarded by the respondent/DDA to the

petitioner within a period of four weeks, the interest payable beyond the

period of four weeks shall be calculated @ 15% per annum till the entire

amount is paid to the petitioner.

                                                    (HIMA KOHLI)
MARCH 01, 2012                                         JUDGE
rkb/sk/rb