Delhi High Court
Shri Dinesh Kalra And Anr. vs Delhi Development Authority And ... on 15 September, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No.285/2014
Reserved on: 7th September, 2016
% Pronounced on: 15th September, 2016
SHRI DINESH KALRA AND ANR. ..... Appellants
Through: Mr. Udyan Srivastava, Advocate.
Versus
DELHI DEVELOPMENT AUTHORITY AND ORS. ..... Respondents
Through: Mr. Sanjeev Rajpal, Advocate for
DDA.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? YES
VALMIKI J. MEHTA, J
1. This Regular Second Appeal under Section 100 of the Code of
Civil Procedure, 1908 (CPC) is filed by the appellants/plaintiffs impugning
the concurrent Judgments of the courts below; Trial Court dated 29.8.2011
and the First Appellate Court dated 8.7.2014; by which the suit for injunction
filed by the appellants/plaintiffs seeking injunction against the respondent
no.1/defendant from cancelling the allotment of the allotted plot no.BA-20,
Mangolpuri Industrial Area, Phase-II, Delhi and for not forfeiting the earnest
money amount paid with respect to the allotted plot. Further and
consequential relief was claimed for the defendant to execute the lease deed
of the allotted plot in favour of the appellants/plaintiffs and to hand over
vacant physical possession of the plot to the appellants/plaintiffs.
2. The facts of the case are that appellants/plaintiffs were
successful bidders in the auction conducted by respondent no.1/defendant on
19.2.1988 with respect to the suit plot bearing no.BA-20, Mangolpuri
Industrial Area, Phase-II, Delhi admeasuring 120 sq. mtrs.
Appellants/plaintiffs gave the highest bid of Rs. 4,09,000/-.
Appellants/plaintiffs paid a sum of Rs.1,10,000/- on the date of the bid.
Confirmation of the bid was given to the appellants/plaintiffs by the
respondent no.1/defendant vide Letter dated 10.3.1988. The balance amount
payable by the appellants/plaintiffs was Rs.2,99,011/- which included Rs.11/-
as documentation charges and which amount was deposited by the
appellants/plaintiffs on 8.4.1988 i.e within thirty days of confirmation of the
bid. Respondent no.1/defendant vide its Letter dated 16.6.1988 asked the
appellants/plaintiffs to receive the possession of the plot on 28.6.1988 as the
respondent no.1/defendant had decided to hand over possession of the plot in
anticipation of the execution of the lease deed. Appellants/plaintiffs by the
Reply dated 23.6.1988 informed the respondent no.1/defendant that execution
of the lease deed be done simultaneously with the handing over of possessing
as liability regarding property tax and ground rent would start from the
receipt of the possession of the plot by the appellants/plaintiffs but
appellants/plaintiffs in the absence of the lease deed would have no title in
their favour. Thereafter, there are communications of the respondent
no.1/defendant dated 29.9.1988 and 31.10.1988, without the respondent
no.1/defendant replying to appellants/plaintiffs Letter dated 23.6.1988 which
was received by the respondent no.1/defendant on 27.6.1988, and the
respondent no.1/defendant threatened to cancel the allotment in case of
possession not being taken by the appellants/plaintiffs by 4.11.1988.
3. The subject suit therefore came to be filed against the impugned
action of the respondent no.1/defendant in threatening to cancel the allotment
of the plot and forfeit the earnest money amount.
4. Respondent no.1/defendant contested the suit and pleaded that
appellants/plaintiffs have committed illegality because they failed to take
over possession of the plot. Because possession of the plot was not taken by
the appellants/plaintiffs, hence the case of the appellants/plaintiffs could not
be processed for execution of lease deed. Respondent no.1/defendant relied
upon Clause 5 of the terms and conditions of auction, Ex.DW1/11, and which
according to respondent no.1/defendant provided that possession of the plot
has to be taken by the successful bidder prior to execution of the lease deed.
Accordingly, it was prayed that the suit be dismissed as the
appellants/plaintiffs failed to take over possession of the plot.
5. After pleadings were complete trial court on 4.11.1996 framed
the following issues:-
"1. Whether the suit of the plaintiff is bad for want of notice under
section 53-B, DD Act? OPD
2. Whether the plaintiff is entitled to the relief as prayed for? OPP.
3. Relief."
6. The main issue was issue no. 2 and in this regard both the courts
below have held that in view of Clause 5 of the terms and conditions of
auction since the appellants/plaintiffs did not take possession of the plot
hence the action of the appellants/plaintiffs was in violation of Clause 5 and
therefore appellants/plaintiffs are not entitled to the reliefs as prayed for in
the suit.
7. For the disposal of this Regular Second Appeal the following
substantial questions of law are framed:-
(i) Whether the courts below have committed a complete and gross
illegality and perversity in completely misinterpreting Clause 5 of the terms
and conditions of auction because the said clause does not require taking
over of possession before execution of the lease deed by the respondent
no.1/defendant?
(ii) Whether even assuming Clause 5 of the terms and conditions of
auction provides for taking over of possession before execution of the lease
deed, even then whether the respondent no.1/defendant was not justified in
not executing the lease deed although there was no undue benefit to the
appellants/plaintiffs on simultaneous execution of the lease deed along with
taking possession and that correspondingly there was no undue loss to the
respondent no.1/defendant for respondent no.1/defendant not
simultaneously executing the lease deed along with handing over
possession of the plot?
8. In my opinion, both the above substantial questions of law have
to be answered in favour of the appellants/plaintiffs and against the
respondent no.1/defendant. The reasons for the same are given hereinafter.
9. At the outset, let me reproduce Clause 5 of the terms and
conditions of auction, and which clause is required to be interpreted as to
whether the same requires the successful bidder to take possession prior to
execution of the lease deed. This Clause 5 of the terms and conditions of
auction reads as under:
"After the acceptance of the bid and payment of full amount of
premium offered by the bidder, the possession of the plot will be
handed over and lease deed executed."
10. I do not find anything whatsoever in Cause 5 of the terms and
conditions of auction which requires that possession of the plot has to be handed
over before execution of the lease deed. All that this clause requires is that on
payment of the full amount the possession of the plot will be handed over and
lease deed executed, i.e, in fact possession of the plot and execution of the lease
deed has to be simultaneously done as per this Clause 5.
11. A reading of this Clause 5 of the terms and conditions of auction
in any other manner would be not only a gross perversity but really
supporting the harassment by a public body of the common man of this
country. I fail to understand as to how the respondent no.1/defendant can
read Clause 5 of the terms and conditions of auction that the said Clause in
any manner provides that taking over of possession of the plot by successful
bidder is to be prior to execution of the lease deed.
12. I, therefore, hold that the respondent no.1/defendant acted
completely illegally and perversely in insisting on handing over possession of
the plot prior to execution of the lease deed and that the appellants/plaintiffs
were justified in seeking simultaneous execution of the lease deed and taking
over possession of the plot for which appellants/plaintiffs had bid
successfully and had paid the entire price on time.
13. Another relevant clause which is required to be discussed is
Clause 3(ii) of the terms and conditions of auction as to whether this clause
supports the stand of the respondent no.1/defendant of the successful bidder
first having to take possession and that there is to be no simultaneous
execution of the lease deed along with taking possession of the plot. This
Clause 3(ii) of the terms and conditions of auction reads as under:-
"Clause 3 (ii) provides that allottee (plaintiff herein) shall execute a
lease deed on the prescribed form within six months from the date of
offer of possession of the plot to him or within six months from the
date the allottee, demands possession after payment of the requisite
premium payable by him whichever is earlier."
14. In my opinion, all that this clause provides is that lease deed has
to be executed within six months from the date of offer of possession and not
that lease deed cannot be executed simultaneously with the actual handing
over of possession of the plot. The second part of Clause 3(ii) of the terms
and conditions of auction also only provides of execution of the lease deed
within six months of the allottee demanding the possession. The two parts of
Clause 3 (ii) operate in the manner that whichever event is earlier will be
complied with, however, even this clause does not in any manner provide that
taking over of possession by the allottee is a pre-condition and a prior event
to execution of the lease deed, and this clause does not provide that there
cannot be simultaneous execution of the lease deed and taking over of
possession by the allottee.
15. In my opinion, besides the interpretation of Clauses 5 and 3(ii)
of the terms and conditions of auction being in favour of the
appellants/plaintiffs that these clauses do not provide that there cannot be
simultaneous execution of the lease deed and handing over of possession,
appellants/plaintiffs were justified in seeking reasonable interpretation of
such clauses because appellants/plaintiffs rightly pointed that on taking over
of possession they would be liable to pay house tax and ground rent, although
they would not become title-holders unless the lease deed is executed in their
favour.
16. I also fail to understand the action of the respondent
no.1/defendant as to what does it loose by not executing the lease deed
simultaneously along with handing over of possession, and which aspect is
now hereinafter being discussed with respect to second substantial question
of law which has been framed.
17. I may note that insistence of a person on compliance of a
contractual term, can only be if on failure of the same there is undue loss to a
person who seeks compliance of a clause or undue benefit to the other side.
No loss has been pleaded which can be caused to the respondent
no.1/defendant unless the appellants/plaintiffs/successful bidders take
possession first and only thereafter get executed the lease deed. If Clauses 5
and 3(ii) of the terms and conditions of auction are interpreted as sought to be
done on behalf of the respondent no.1/defendant the same would become
arbitrary and in fact violative of public policy. If the clauses are void and
violative of public policy they may have to be struck down as per Section 23
of the Indian Contract Act, 1872, however, I need not do so because there
cannot be under any circumstances interpretation of Clauses 5 and 3(ii) of the
terms and conditions of auction as per which the language of these clauses is
interpreted that taking over of possession by the successful bidder is a pre-
condition and lease deed cannot be executed simultaneously and that the
lease deed can only be executed later on after the successful bidder has taken
over possession. The second substantial question of law is therefore
answered in favour of the appellants/plaintiffs and against the respondent
no.1/defendant.
18. The present is a classic case of much ado about nothing. One is
really left scratching over head as to after all what the respondent
no.1/defendant is seeking to achieve by perverse interpretation of Clauses 5
and 3(ii) of the terms and conditions of auction, and which interpretation is
not being made by the respondent no.1/defendant because any other
interpretation will cause grave loss to the respondent no.1/defendant and
undue benefit to the appellants/plaintiffs. The present is a classic case of
harassment of a common citizen and common man of this country by public
authorities such as the respondent no.1/defendant/Delhi Development
Authority.
19. In view of the above, the substantial questions of law being
answered in favour of the appellants/plaintiffs and against the respondent
no.1/defendant, the present second appeal is allowed with costs of
Rs.50,000/- to be paid by respondent no.1/defendant to the
appellants/plaintiffs and which costs shall be paid within a period of four
weeks from today. This Court is forced to impose costs as the discussion in
the present judgment shows the total unreasonable stand of the respondent
no.1/defendant and the harassment which the appellants/plaintiffs have faced
for having initiate this litigation which has reached the stage of the present
second appeal under Section 100 CPC.
20. The Regular Second Appeal is, accordingly, allowed and
disposed of and respondent no.1/defendant is restrained from cancelling the
allotment of the plot no.BA-20, Mangolpuri Industrial Area, Phase-II, Delhi
and that respondent no.1/defendant should execute the lease deed of the suit
property in favour of the appellants/plaintiffs simultaneously with handing
over possession to the appellants/plaintiffs. Respondent no.1/defendant will
do the needful of execution of the lease deed and simultaneously handing
over of possession of the suit plot to the appellants/plaintiffs within a period
of four weeks from today.
SEPTEMBER 15, 2016 VALMIKI J. MEHTA, J
AK
