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CASE NO.: Appeal (civil) 5875  of  1999

PETITIONER: PRASHANT KUMAR SHAHI

       Vs.

RESPONDENT: GHAZIABAD DEVELOPMENT AUTHORITY

DATE OF JUDGMENT:       03/04/2000

BENCH: S. Saghir Ahmad, & R.P. Sethi.

JUDGMENT:

SETHI,J. L...I...T.......T.......T.......T.......T.......T.......T..J

   The  appellant  applied  for  the allotment  of  a  plot measuring 350 sq.mtrs.  under the Scheme of "Indrapuram" and paid  registration amount of Rs.42,000/- on 28th July, 1989. A  further  sum of Rs.63,000/- being the reservation  amount was  paid  and  plot  allotted to him  vide  letter  of  the respondent-authority  dated  5th November, 1989.  The  first instalment  of  Rs.76,125/- was paid by him on 16th  August, 1990.   Further  instalments  during 1990-95 were  not  paid allegedly  on  the ground that the respondent-authority  had not made any development at the site.  The appellant further stated  that  he was made to believe that the possession  of the plot would be handed over to him by the year 1991.  Vide letter dated 28th February, 1995, the appellant was informed that  if  the  balance  amount is not paid by  him  by  30th November,  1995,  interest would be charged on  the  balance amount  due.  The appellant’s contention is that in terms of the  aforesaid  letter the interest, if any, can be  charged for  the period commencing from 30th November, 1995 and  not earlier  to  it.   He  had  already  paid  a  total  sum  of Rs.5,74,993/-  but  the respondents were  allegedly  wrongly insisting  for  the  payment  of  an  additional  amount  of Rs.2,34,127/- before delivery of possession of the plot.  As the  plot  was not delivered to him, the appellant  filed  a complaint  under  Sections  36A,  36B(a)   and  36D  of  the Monopolies  &  Restrictive Trade Practices Act  (hereinafter referred  to  as "the MRTP Act") before the  Monopolies  and Restrictive Trade Practices Commission (hereinafter referred to as "the Commission") which was registered as Unfair Trade Practice  Enquiry  No.92/97.   Notice of enquiry  under  the provisions  of the MRTP Act was issued to the respondent who appeared  before  the  Commission  and  contended  that  the appellant  himself  through his letter dated 13th  December, 1996  admitted  the  delay  in payments  and  indicated  his willingness to pay the entire amount outstanding against him with  the request not to cancel the allotment due to delayed payments.  The amount liable to be paid by the appellant was stated  to have been calculated strictly in accordance  with the  terms  and conditions of the brochure circulated.   The

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respondents  could have cancelled the allotment in terms  of the  regulations  contained in the brochure but it  was  not done  to facilitate the appellant to make the payment of the balance  amount.   It  was   contended  that  the  necessary facilities   of  sewerage,  drainage,   water   supply   and electricity   connections  were  made   available   to   the plot-holders  including the appellant in Indrapuram  Scheme. Regarding delivery of possession, it was contended on behalf of  the  respondent-authority,  that in  the  brochure  only estimated  time  of completion of scheme was  indicated  and delay  in  completion  had occurred due to  various  factors including  the constraints of funds.  It was further pleaded that  the paucity of financial resources had been caused due to  delay  or default in payment by the allottees  like  the appellant.   On  the basis of the pleadings of the  parties, the  Commission  framed the following issues:  "1.   Whether the  respondent has been indulging in unfair trade practices as alleged in the NOE?

   2.  Whether these unfair trade practices are prejudicial to  the  interest of the complainant/ other members  of  the public?

   3.   Whether  he  is   entitled  to  relief/compensation claimed made by him in the compensation application?

   4.  Relief, if any?"

   After  referring  to  the  pleadings  and  the  evidence produced, the Commission concluded:

   "It transpires that the applicant/complainant has of his own  accord,  approached  the respondent and  indicated  his willingness to pay the amount due from him.  Not only has he shown his desire to clear the dues, he has also acknowledged that there has been delay on his part in making the payment. Perusal  of  the  allotment letter reveals that there  is  a stipulation  with  regard to payment of interest  and  penal interest  if  the payment is not made within the  prescribed time  limit.   As both the applicant/complainant as well  as the  respondent  are  relying on the  allotment  letter,  it stands  to  reason  that the  outstanding  amount  including interest should be calculated in the light of this letter of 5.11.1989.   It appears from the affidavit of evidence filed on  behalf of the respondent that the calculations have been made  on  the  basis of that letter and the  respondent  has accordingly,     indicated    the       amount    to     the applicant/complainant.   In  that  view of the  matter,  the applicant/complainant’s  contention that interest should  be charged  after  30th May, 1995 is not tenable.  It  is  also quite  apparent that there has been delay in the  completion of  the  project  but  delay seems to have  been  caused  by circumstances  beyond the control of the respondent.  It  is also  common  knowledge that there has been cost  escalation and  cost  etimates  of 1989 need revision and  the  revised estimate  is  bound  to  be much higher  than  the  original estimate.  It appears that development of infrastructure and provision  of  utilities like water supply  and  electricity connection  have  also  contributed  to   the  hike  in  the estimated  cost  and  demand   for  additional  charges  for sewerage,   lease  rent,  etc.,   cannot  be  construed   or considered to be an unfair trade practice on the part of the respondent.   It  also  transpires that  the  respondent  is charged  with  the  responsibility of  developing  land  for plots/flats  and making the same available to the  allottees

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like  the  applicant/complainant on actual cost value  basis and  the  total  cost  incurred  by it  is  required  to  be recovered  from the allottees.  In that view of the  matter, there  is  no  escape from the conclusion that  no  case  of unfair  trade  practices by and on behalf of the  respondent has been made out and no prejudice seems to have been caused to the applicant/complainant as a consequence thereof."

   Learned counsel appearing for the appellant relying upon a  judgment  of this Court in Bihar State Housing Board  and Ors.vs.  Lalit Ram [1997 (10) SCC 339] submitted that as the respondent-authority  has been proved to be responsible  for the  delay  in  delivering  possession   of  the  plot,  the appellant  could  not be burdened to pay the penal  interest for  the period anterior to 30th May, 1995.  It is true that if the authority is found to be responsible for the delay in delivery  of  the  possession of the plot in  terms  of  the agreement  arrived at or according to the assurance given in the  brochure,  the  allottee cannot be  burdened  with  the interest on the balance amount not paid by him.  However, it has  to be found on facts as to whether the authority or the allottee  was responsible for the alleged delay.   According to  the available records and the submissions made on behalf of the appellant it transpires that the schedule for payment of  the total estimated cost of the plot being Rs.4,29,000/- and registration amount of Rs.42,000/- was to be paid in the following  instalments:

   "S.No.   Instalment  Description Due date of payment  1. Reservation Amount 4.12.1989 2.  Instalment No.1 4.5.1990 3. Instalment  No.2  4.11.1990 4.  Instalment No.3 4.5.1991  5. Instalment  No.4  4.11.1991 6.  Instlament No.5 4.5.1992  7. Instalment No.6 4.11.199"

   It  further  transpires  that after paying  the  initial amount   of  Rs.42,000/-  the   appellant  paid  the   first instalment  of Rs.63,000/- on 3.1.1990 and second instalment of   Rs.76,125/-   on   16th   August,  1990   total   being Rs.1,81,125/-.   Amounts  of  instalment due  on  4.11.1990, 4.5.1991,   4.11.1991,   4.5.1992    and   4.11.1992   were, admittedly,    not   paid   on     the   due   dates.    The respondent-authority  vide  its letter dated 28th  February, 1995  called  upon the appellant to make upto date  payments and  10% of premium of his plot as lease rent and  Rs.4800/- as  sewer connection and water connection charges latest  by 30th  May, 1995.  It was pointed out that "if the payment is not made within the due date interest shall be charged @ 18% &  chokidata  fee  Rs.5/-  per day shall  be  charged  after 30.5.95".   Admittedly, till 16.10.1996 no amount was  paid. Even  on  that  date  a sum of Rs.72,188/-,  the  amount  of instalment  payable  on  4.11.1990 was actually  paid.   The appellant  thereafter  paid a sum of Rs.2 lakhs on  7.1.1997 and  Rs.1,29,600/- on 13.1.1997 before filing his  complaint in  the Commission on 28th February, 1997.  Having failed to perform  his  part of the contract, the appellant cannot  be permitted  to urge that he is not liable to pay the  balance amount  along  with  interest  as   according  to  him   the respondent-authority had failed to deliver possession as per terms  of  the brochure.  The authority was not expected  to deliver  possession  in  the absence of the payment  of  the agreed  amount.   Having failed to perform his part  of  the agreement,  the  appellant cannot be permitted to  urge,  at this  stage,  that he was not liable to pay the interest  as agreed  to by him at the time of accepting the allotment  of

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the plot in his favour.  The reliance of the learned counsel on  the  letter dated 28th February, 1995 is also  misplaced inasmuch  as by that letter he was given further opportunity to  make the payment of the balance amount alongwith charges mentioned  therein  by  a   specified  date,  failing  which interest  and  chokidata  was to be charged from  him.   The letter did not envisage that such interest and chokidata was to  be charged from a date subsequent to 30th May, 1995  and not  prior  to  it.   The mention of the date  was  only  to intimate  the  appellant of the concession given to him  and upon  his  failure to avail of the benefit by the  specified date, he was liable to pay the interest as agreed upon.  The judgment  of  this  Court in Bihar State Housing  Board  and Ors.vs.   Lalit  Ram (supra) is also of no help to him.   In that case the allottee was found to have been intimating the Board  time and again for completion of the construction  of the  plot but despite his request the same was not completed and it was held that without completion of the construction, the  aforesaid  allottee could not be asked to  execute  the agreement  and  upon his failure to execute  the  agreement, charged  with  the  liability of paying the  interest.   The facts  of  the  present case are  altogether  different  and distinguishable.   After  going  through  the  whole  record produced  before  us, we find that no ground is made out  to interfere  with the order of the Commission in this  appeal. The  appeal is, therefore, dismissed.  The appellant is held liable  to  pay  the  amount demanded from  him  before  the delivery of the possession of the plot.  No costs.