PRASHANT KUMAR SHAHI Vs. GHAZIABAD DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) -

(2.) THE appellant applied for the allotment of a plot measuring 350 sq. metros. under the Scheme of 'Indrapuram" and paid registration amount of Rs.42,000.00 on 28/7/1989. A further sum of Rs.63,000.00 being the reservation amount was paid and plot allotted to him vide letter of the respondent-authority dated 5/11/1989. THE First installment of Rs.76,125.00 was paid by him on 16/8/1990. 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 28/2/1995, the appellant was informed that if the balance amount is not paid by him by 30/11/1995, 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 30/11/1995 and not earlier to it. He had already paid a total sum of Rs.5,74,993.00 but the respondents were allegedly wrongly insisting for the payment of an additional amount of Rs.2,34,127.00 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 and 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.

(3.) LEARNED counsel appearing for the appellant relying upon a judgment of this Court in Bihar State Housing Board and Ors. vs. Lalit Ram 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 30/5/1995. 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.4,29,000.00 and registration amount of Rs.42,000.00 was to be paid in the following instalments: <FRM>JUDGEMENT_31_SCALE3_2000Html1.htm</FRM> It further transpires that after paying the initial amount of Rs.42,000.00 the appellant paid the first instalment of Rs.63,000.00 on 3/1/1990 and second instalment of Rs.76,125.00 on 16/8/1990 total being Rs.1,81,125.00. 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 28/2/1995 called upon the appellant to make upto date payments and 10% of premium of his plot as lease rent and Rs.4,800.00 as sewer connection and water connection charges latest by 30/5/1995. It was pointed out that "if the payment is not made within the due date interest shall be charged @ 18% and chokidata fee Rs.5.00 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.72,188.00, 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.1,29,600.00 on 13/1/1997 before filing his complaint in the Commission on 28/2/1997. 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 the plot in his favour. The reliance of the learned counsel on the letter dated 28/2/1995 is also misplaced inasmuch as by that letter he was given further opportunity to make the payment of the balance amount along with 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 30/5/1995 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. LalitRam (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.