WEST BENGAL HOUSING BOARD Vs. SRIMATI SAROJ SHAH

JUDGEMENT

(1.) The Housing Board commenced a project under the name and style of Eastern High, New Town, at Kolkata, which offered allotment of flats on the basis of a lottery. The respondent No. 1 Smt. Saroj Shah applied for allotment of a type C flat at Eastern High at New Town and paid a sum of Rs.2,00,000.00 as application money. A provisional letter of allotment dtd. 23/4/2008 for one HIG-C Type flat was issued in favour of the respondent No. 1 Smt. Saroj Shah on certain conditions. On 24/7/2008 the appellant issued a letter informing the writ petitioner/respondent that there would be a delay in completion of the said project and the same is expected to be completed by December, 2009 instead of December, 2008 as proposed earlier. On 20/10/2009 the appellant issued a letter to the writ petitioner/respondent no. 1 asking her to inform whether she had submitted payment particulars to the office of the appellant. On 6/11/2009 the writ petitioner/respondent submitted a representation before the Appellant Board requesting the Board to allow her to deposit the allotment money with penal interest if any. The appellant Board cancelled the provisional allotment in favour of the writ petitioner for non-payment of allotment money and informed the same to her by sending a letter dtd. 11/12/2009. The writ petitioner made a representation on 23/12/2009 to the Appellant Board for recalling the cancellation letter dtd. 11/12/2009. On 29/3/2010 the Appellant issued a memo refusing to allow the petitioner to deposit the allotment money. On 14/5/2010 the writ petitioner filed Writ Petition no. 672 of 2010 and after hearing the parties the Learned Single Judge allowed the writ petition on 10/6/2022.

(2.) In allowing the writ petition, Learned Single Judge has been pleased to hold, inter alia, that the contention of the Appellant Board regarding issuance of the letter dated July 24, 2008 erroneously in favour of the writ petitioner cannot be sustained in law as the same is clearly an outcome of afterthought. The Learned Single Judge has further held that as by the letter dated July 24, 2008 the Appellant Board extended the time for completion of the construction in the project and waived the payment of penal interest on default of the stage wise payment, the time became no more essence of the contract for making payment of consideration for said flat. The Learned Single Judge was also pleased to hold that as the writ petitioner had the scope of paying the balance amount with penal interest after 120 days from the scheduled date of payment, and as the said communication dated July 24, 2008 in fact altered and/or modified the original terms under the contract entered into by and between the parties, therefore the Housing Board could not take the plea that time was the essence of the contract any further. The Learned Judge has also pointed out that when the writ petitioner by her letter dated November 4, 2009 had agreed to pay penal interest on the allotment money, the cancellation of allotment at the instance of the Appellant Board on 11/12/2009 even before the expiry of the extended period for completion of the project as stipulated in the said communication dated July 24, 2008, was clearly wrongful and arbitrary. According to the Learned Single Judge, the Writ Court sitting in equitable jurisdiction while adjudicating a writ petition should also balance the equity between the parties, in an appropriate case. Had the allotment of the said flat not been cancelled, the petitioner would have had to pay the entire consideration in or about December 2009 for taking possession of her flat. Even though the Housing Board had waived the payment of penal interest, it could have received the entire consideration from the petitioner at least in or about December 2009 or contemporaneously immediately after completion of the housing project. Accordingly, the writ petitioner was directed to pay the balance consideration in terms of allotment letter dated April 23, 2008 for a sum of Rs.46,81,7000.00 after adjusting the application money paid already. The petitioner was further directed to pay a further consolidated sum of Rs.4,00,000.00 in addition to the sum of money referred to above within a certain stipulated period and on receipt of the entire payment, the Appellant Board was directed to execute necessary conveyance in favour of the Writ Petitioner no. 1. Submission from the bar

(3.) Learned Counsel appearing for the appellant, Mr. Soumya Majumder, has argued that although the allotment letter defers payment of penal interest for default but the said clause is applicable only in respect of buyers who were making payments at different stages of the construction. But the present respondent was a buyer of one time payment mode and therefore the said clause is not applicable to her. Learned Counsel has further pointed out that even assuming that the writ petitioner had a right to make payment within 120 days with interest on delayed payment beyond 60 days, the terms of allotment categorically stipulates that in case of failure to pay with penal interest after 120 days from the schedule date of payment, there would be automatic cancellation of allotment, and, therefore, in the case of the present respondent no. 1 the period of 60 days expired on 22/6/2008 and the period of 120 days expired on 22/10/2008. The Hon'ble Single Judge has also recorded that the last date for making payment was 22/10/2008. The Board's letter dtd. 24/7/2008 by which the date of completion of the project was extended from December, 2008 to December, 2009 was applicable in respect of those allottees whose payments fell due then onwards, meaning thereby, from July 24, 2008 onwards. The writ petitioner's payments did not fall due from July 24, 2008 onwards. It had fallen due on 22/6/2008. In any event the extension letter, if it is read as a whole, clearly indicates that the compensation from the Board was done away with and reciprocally the penal interest was waived only for a particular category of buyers who would have a grace period of one year. The altered conditions of the Brochure through correspondence is not an unqualified extension of time to make payment for all categories of buyers. As the writ petitioner was not a stage payment buyer she had no right to claim compensation from the Board. It is therefore clear that the letter dtd. 24/7/2008 was not applicable to the petitioner's case. Mere sending of the letter to the petitioner neither creates any right in favour of the writ petitioner, nor could it be said to have altered the terms of the allotment of the writ petitioner. A correspondence as stated above clearly indicates that time was not the essence of contract between the Board and the writ petitioner. Extension of time, if applicable at all, would also suggest that time was not the essence of the contract as envisaged in Sec. 55 of the Indian Contract Act, 1872.