PRASHANT KUMAR SHARIversusGHAZIABAD DEVELOPMENT AUTHORITY

A                        PRASHANT KUMAR SHARI
                                   v.
                   GHAZIABAD DEVELOPMENT AUTHORITY

                                    APRIL 3, 2000

B                    [S. SAGHIRAHMAD AND R.P. SETHI, JJ.]

          Monopolies and Restrictive Trade Practices Act, 1969:

           Section 36-A-Unfair Trade Practice-Plot of land-Allotment of-
    Allottee failed to pay timely instalments in respect ofa plot ofland-Allottee did
c   not deny his liability to pay balance amount with interest-Development Au-
    thority therefore, demanded amount with penal interest handing over posses-
    sion ofplot-Validity of-Held: Development Authority's demandjustified-
    No case of unfair trade practice made out against Development Authority-
    Allottee 's complaint rightly dismissed-Urban Development.
D
          Allotment of plot of land-Delay in delivery of possession-Balance
    amount-Interest on-Held: If the Development Autliority is responsible for
    the delay, the allottee cannot be burdened with the interest on the balance
    amount.

E         The. respondent-Authority allotted a plot of land to the appellant
    after he had paid the registration and reservation amounts. Subsequently,
    the appellant paid the first and second instalments. Five instalments be-
    came due thereafter. The respondent-Authority, by a letter dated 28.2.1995,
    called upon the appellant to pay the balance amount together with other
    charges latest by 30.5.1885. It was also stated in the said latter that if
F
    payment was not made within the due date penal interest would be charged.

          The appellant himself, through his letter, admitted the delay in pay-
    ments and requested not to cancel the allotment and also indicated his
    willingness to pay the entire amount outstanding against him. However,
G   the appellant paid only a part of the balance amount due. The respondent-
    Authority, therefore, did not not hand over possession of the plot and
    demanded penal interest as per its letter dated 28.2.1995.

           Being aggrieved the appellant filed a complaint of unfair trade prac-
    tice before the MRTP Commission under Sections 36-A, 36-B(a) and 36-D
H   of the. Monopolies and Restrictive Trade Practices Act, 1969. The MRTP
                                        896
                       P.K. SHAHI v. G.D.A. [SETHI, J.]                    897
Commission dismissed the complaint. Hence this appeal.                             A
      On behalf of the appellant it was contended that the respondent-
Authority was responsible for the delay in delivery of possession of the
plot and, therefore, the appellant was not liable to pay penal interest for
the period prior to 30.5.1995.
                                                                                   B
      Dismissing the appeal, this Court

      HELD : 1.1. It is true that if the Authority is found to be responsible
for the delay in delivery of 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             c
him. However, it has to be found on facts as to whether the Authority or
the allottee was responsible for the alleged delay. [900-F-G]

       2. 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            D
had failed to deliver possession as per the terms of the brochure. The
Authority was not expected to deliver possession in the absence of pay-
ment 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           E
accepting the allotment of the plot in his favour. By the letter dated
28.2.1995 the appellant was given further opportunity to make the pay-
ment of the balance amount along with other charges mentioned therein
by a specified date, failing which interest was to be charged from him. The
letter did not envisage that such interest was to be charged from a date
                                                                                   F
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 liab!e to pay the
interest as agreed upon. [901-F-H; 902-A-BJ

      Bihar State Housing Board v. La/it Ram, [1997] 10 SCC 339, held              G
inapplicable.

      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5875 of 1999.

      From the Judgment and Order dated 29.6.99 of the M.R.T.P. Commis-
sioner, New Delhi in U.T.P.E. No. 92 of 1997.                                      H
    898                      SUPREME COURT REPORTS                 [2000) 2 S.C.R.
A        Vikas Singh, Yunus Malik, Reetesh Singh, Ms. Richa Kachhwaha and
    Lakshmi Raman Singh for the Appellant.

         Raju Ramachandran and Rakesh Uttamchandra Upadhyay for the Re-
    spondent.

B         The Judgment of the Court was delivered by

          SETHI, 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
c
    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
D   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
E   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 addi-
    tional amowit 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 360 of the Monopolies & Restrictive Trade
F   Practices Act (hereinafter referred to as "the MRTP Act") before the
    Monopolies and Restrictive Trade Practices Commission (herein3.fter referred
    to as "the Commission") which was registered as Unfair Trade Practice
    Enquiry No.92197.

           Notice of enquiry under the provisions of the MRTP Act was issued
G   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
H   to have been calculated strictly in accordance with the terms and conditions
                       P.K. SHAHI v. G.D.A. [SETHI, J.]                     899
of the brochure circulated. The respondents could have cancelled the                A
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 pos-            B
session, 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.
                                                                                    c
      On the basis of the pleadings of the parties, the Commission framed the
following issues:

        "I. Whether .the respondent has been indulging in unfair trade
        practices as afleged in the NOE?                                            D

         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?                                           E

         4. Relief, if any?"

After referring to the pleadings and the evidence produced, the Commission
concluded:
                                                                                    F
        "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
                                                                                    G
        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 ~ppears from the affidavit of evidence filed on     H
    900                      SUPREME COURT REPORTS                   [2000] 2 S.C.R.
A            behalf of the respondent that the calculations have been made on the
             basis of fu,at 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
B
             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
c            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
D            land for plots/flats and making the same available to the allottees like
             the applicant/complainant on actual cost value basis and the total cost
             incurred by it is required to be recovered from the allottees. Iii 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/
E            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. v. Lalit Ram, [1997] 10
     sec 339 submitted that as the respondent-authority has been proved to be
F    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.
G    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:
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                         P.K. SHAID v. G.D.A. [SETHI, J.J                   901

          "S.No.      Instalment Description           Due date of payment           A
          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                      B
          5.          Instalment No.4                  4.11.1991
          6.          Instlament No.5                  4.5.1992
          7.          Instalment No.6                  4.11.1992"

  It further transpires that after paying the initial amount of Rs. 42,000 the       C
  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      D·
  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               E
  4.11.1990 was actually paid. The appellant thereafter paid a sum ofRs.2 lakhs
  on 7.1.1997 and Rs),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-         F
  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    G ,
  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       H
    902                      SUPREME COURT REPORTS                   [2000] 2 S.C.R.
A   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. v. 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 againfor completion of the
B   construction of the plot but despite his request the same was not completed
    and it was held that without completion of the construction, tlie :.foresaid
    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.
c
          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.
D
    v.s.s.                                                        Appeal dismissed.