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PETITIONER: DELHI DEVELOPMENT AUTHORITY

       Vs.

RESPONDENT: SHILPA CO-OPERATIVE GROUP HOUSINGSOCIETY LIMITED, ETC.

DATE OF JUDGMENT:       27/02/1996

BENCH: HANSARIA B.L. (J) BENCH: HANSARIA B.L. (J) RAY, G.N. (J)

CITATION:  JT 1996 (6)    97        1996 SCALE  (2)601

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T HANSARIA,J.      Leave granted. 2.   The short  point which  needs  determination  in  these appeals is  : How much of the earnest money deposited by the respondents  should  be  allowed  to  be  forfeited  by  the appellant? The  deposit had connection with the allotment of land made  in favour  of the  respondents by  the appellant, which proposal did not ultimately ame through because of the escalation of  premium,  for  which  reasons  the  allottees refused to  accept the  allotment, resulting in cancellation of the same. 3.    This  Court had occasion to examine this very question in Delhi Development Authority vs. Grihsthapana Co-operative Group Housing  Society Ltd.,  JT 1995  (2) SC  530. It is by referring to  this decision  that the  High  Court,  in  the impugned judgments,  has held  that the appellant could have forfeited a  sum of  Rs.5 lacs only. The appellant’s case is that the  facts in  Grihsthapana’s case  were different; and so,  what   was  decided  therein  is  not  applicable.  The respondent’s stand on the other hand is that their cases are covered by the aforesaid decision. 4.   Shri  Jaitley,   appearing  for   the  appellant,   has contended that  the distinction  lies in  the fact  that  in Grihsthapana’s case,  the co-operative  society had not made any deposit  after 10.5.1993 which is the date on which this Court had  disposed of  the Special Leave Petitions filed by Green Valley  Co-operative Group  Housing Society  making  a grievance about  escalation of  the rate of premium. By that order  this   Court  had  only  extended  the  time  to  pay instalments at  the  escalated  rate  upto  31st  May,  1993 without  interest,   and  thereafter   with  interest   upto 31.7.1993. It  is an  admitted position that the respondents in the  present appeals  had paid further sum of money after the order  of this  Court dated  10.5.1993, which  fact  was missing in the earlier case.

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5.   Shri Bhattacharjee,  appearing for  the respondents  in appeals arising  out of  SLP(C) Nos.  24713 & 24721 of 1995, has urged  that the  fact of deposit after 10.5.1993 can not make the  ratio in  Grihsthapana’s case inapplicable. We are afraid, we  cannot agree  because the  decision in that case was based  on the  fact that  there was no acceptance of the offer given  by the  appellant on  3.11.1992 at the enhanced premium, whereas  the deposits  made in  cases at hand after the order  of 10.5.1993  clearly shows  that  the  offer  of 3.11.1992 was  accepted. The  submission on  behalf  of  the respondent in  appeal relatable to SLP(C) No.415/94 that the membership of the co-operative society was reduced to 76, as against 135,  and so,  the deposit made subsequent 10.5.1993 should not  he taken  to be  a deposit  on behalf of all the members, cannot  be accepted  to have  made  any  difference because when  the deposit  was made  on 31.5.1993  it was on behalf of 135 members. 6.   Shri Bhattacharjee  was at  pains  in  submitting  that though the  facts of  Grihsthapana’s case  were not  on  all fours  with  the  cases  at  hand.  Civil  Appeal  No.930/95 relatable to  Ahluwalia Co-operative  Group Housing  Society Limited, which  was one of the appeals in the batch disposed of by  the aforesaid judgment, was one in which some deposit had been  made after  10.5.1993; and so, what was decided in Ahluwalia’s appeal  would, in any case, be applicable. As to this, Shri Jaitley has contended that when the earlier civil appeals were  taken up in batch, the facts of Ahluwalia were not specifically  brought to the notice of the Court; and it is because  of this  that benefit of what was decided in the facts of  Grihsthapana was  made available  to Ahluwalia. As the  decision  in  that  case  is  based  on  the  facts  of Grihsthapana’s case,  we find  no difficulty in stating that the benefit which had come to be made available to Ahluwalia was inadvertent  and cannot  be extended  to the respondents herein. 7.   The aforesaid shows that the ratio in Grihsthapana case cannot apply  and it  would have  been permissible  for  the appellant to  forfeit the  entire earnest money due from the respondents in  view of  the law  laid down  in Grihsthapana case. If  we were  to allow  the appellant to do so, we find that the  amount becoming liable to be forfeited would be on very high  side inasmuch  as  in  the  case  of  Shilpa  Co- operative -  respondent in  appeal  arising  out  of  SLP(C) No.24713/95 this  amount would be in a neighborhood of Rs.22 lacs, even  if we were to reckon the amount of earnest money which had been actually deposited, and not what was required to be  deposited. We  would think  that keeping  in view the many rounds  of litigation  and the  hardship which would be caused to  the respondents,  Justice demands that we may not burden the  respondents with  huge sums in this regard. Shri Jaitley has  urged that  the appellant  is at  no fault  and indeed it  had suffered because of lapse of the respondents, being required  to pay  interest on the amount taken on loan by it;  and so,  if we  were to  give  some  relief  to  the respondents, the hardship of the appellant may also be borne in mind. 8.   Having considered  the cases  of both the sides and the facts and  circumstances of  the appeals  at hand, we are of the view  that 50 per cent of the amount which had otherwise become  due  to  the  appellant  should  be  allowed  to  be forfeited. We  make it  clear that  50  per  cent  would  be calculated, not  on the total amount which these respondents were required  to deposit pursuant to the allotment order of 3.11.1992, but  on the component of the earnest money out of actual  total   deposit.  The  appellant  would  refund  the

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remaining amount  to the  respondents within a period of six weeks from  today, failing  which the  respondents would  be entitled to  interest  @  18%  par  annum  from  today  till payment. 9.   The appeals  are allowed  accordingly. No  order as  to costs.