Khalsa College of Law

Amritsar
(Moot Court), Civil.

Submitted To: Submitted By:

Prof. Harpreet Kaur Sandeep Kaur

LLB (TYC)-5th sem

Roll no: 17314

 IN THE HON'BLE SUPEREME
COURT OF INDIA

…………Triputi Urban Development Authority………….Appellant

VERSUS

………………………….Decree Holder………………….Respondent

……………………………………………...........

MEMORANDUM ON THE BEHALF OF

APPELLANT
 TABLE OF CONTENTS

List of Abbreviation 1
Index Of Authorities 2

Statement Of Jurisdiction 3

Statement Of Facts 4
Legal issues 7
Summary Of arguments 8
Prayer for Relief 14
Judgments 15
 LIST OF ABBREVIATION

Abbreviation Full forms

& and
Hon’ble Honourable
V/s Versus
No. number
HPA House Plotting Authority
SC Supreme Court
SCC Supreme Court
sec Section

INDEX OF AUTHORITIES
 S.no. Name of the cases

1. Bangalore Development Authority V/s Syndicate Bank

2. Ashok Khanna V/sGhazibad DevelopmentAuthority
3. Kanshi Ram V/s Delhi Development Authority
4. Nathulal V/s Phool Chand
5. Sardar Gavindro Mahadik V/s Devi Sahai
6. Haryana Development authority V/s Darash Kumar

STATEMENT OF JURISDICTION
Appellant has filled appeal before Hon’ble Supreme Court of India
against the order passed by the high court of Andhra Pradesh
restrictive trade practice commission or consumer dispute redressel
forum commission

STATEMENT OF FACTS
 i. That TUDA (Triputi Urban Development Authority) has
Constituted under Andhra Pradesh urban Areas (Development
Act1975).
ii. That this authority has time to time promoted and advertised
schemes for allotment and development of plots, apartments and
flats.
iii. That served person approached authority (Housing plot authority)
for subscription amount of authority.
iv. That due to the failure of the authority to perform the contract
they made unreasonable delay & makes excuses regarding the
contract
v. That the respondent further submitted that in response to the
newspaper advertisement dated on 22-09-2000 they all paid
amount, but at the time of the notification there were some news
experts in different newspaper as this site is already finalized for
some scale industrial area same other published as this land is
decided for “ Indra Awass Yojana” some other published as this
land is going to come up with national standard cricket ground .In
all the cases appeal the court or commission or form concerned
has found the authority guilty of having unreasonably delay the
accomplished of the announced scheme or guilty of failure to
perform the promise.
 vi. That some has filled complaint before monopolies and trade
restrictive practices commission some brought complaint before
the competition commission and other raised complaint before
the consumer dispute redressed authority, against TUDA.
vii. That in all these cases the authority found guilty having
unreasonable delay in accomplishment of the announced scheme
and failure to perform the promise or contract.
viii. That due to this failure the Authority (HPA), the authority had
been ordered to pay the amount deposit by the claimants with
interest.
ix. That is the reserved right according to the term and condition of
No.8. The matters brought before the high court for violation of
article 14 of the constitution. The High Court directed the
authority to pay with 12% per annual after one year from the date
of deposit till the date in refund case.
x. That authority further submitted that in response to the
newspaper advertisement dated
22/09/2000, they paid the entire amount but in fact their did not
paid the amount.
xi. That in all cases under appeal the court, commission or forum
concerned has founded authority guilty of having unreasonable
 delayed for accomplished of the announced scheme and guilty of
failure to perform the promise.
xii. That high court also directed to pay 50000 to 1,00000 as
compensation. One of the climates who were awarded 2 lacs got
shocked and hospitalized and gone through surgery for her head.
xiii. That court also awarded compensation for mental agony due to
non performance of contract.
xiv. That form this one case of 2, 00000/- twenty cases were awarded
Rs.200000/- and appeal preferred for this.
 LEGAL ISSUES
1. Whether House Plotting Authority (HPA) is guilty of failure to
perform the promise?
2. Whether House Plotting Authority (HPA) has misrepresented the
subscriber and commits fraud under Indian contract Act 1872?
3. Whether House Plotting Authority (HPA) is under liability to
perform part performance?
4. Whether claimants are entitled for compensation with interest on
the failure of authority to not perform contract?
 SUMMARY OF THE ARGUMENTS

1. Whether House Plotting Authority (HPA) is guilty of failure to

perform the promise?

No, house plotting authority is not guilty of failure to perform the

promise.

1. That no agreement was entered into between the parties

stipulating any time for the performance or delivery of flats.
2. That time is not essence of agreement involving construction. In
the absence of any agreement making time to be the essence of
the contract or agreement or promise held, Triputi Urban
Development Authority cannot be held guilty of failure to perform
the promise.
3. That the Supreme court of India held in the Bangalore
Development Authority v/s Syndicate Bank that if there is no
time fixed for performance of contract & buyer has no issue
regarding the reasonable time of performance during the making
 of contract & accept all the terms and condition of the contract
then there should no question on failure to perform promise.
4. That in the Ashok Khanna v/s Ghaziabad Development Authority
the brochure relating Ghaziabad development authority scheme
did not mention any specific time and date for delivery of
possession of the flats. In the absence of any agreement making
time to be essence of contract the Ghaziabad development
Authority cannot held guilty for the failure of perform the
promise.
2. Whether house plotting authority has misrepresent the
subscriber and commit fraud under contract act, 1872?
Misrepresentation means a false representation of facts made by
a party in relation to an essential or incidental term to a
contract. 'Law of Contract' by Cheshire, Fifoot and Furmston
(XIIIth Edition) and 'Law of Contract' by Anson (XXVIth Edition).
The Burden of proof of proving the misrepresentation is upon the
person who alleges the same.
The high court of Delhi in Kanshi Ram vs Delhi Development
Authority that the said false representation allegedly amounts to
'misrepresentation of facts' it was essential for DDA to first
establish that there were restrictions on the members of the
Society, their spouses and dependents from owning any
residential property in Delhi apart from plots allotted to them by
the society. It is only refers to cases where there is a total dearth
 of evidence, taken as a whole, is not reasonably capable of
supporting the finding.

3. Whether House Plotting Authority is liable under the part

performance?
To making such claim, relying upon doctrine of part performance
in 53A sec. of Transfer of property act, there is nothing in s70 (8)
of Madhya Bharat Land Revenue and Tenancy Act, 66 of 1980
which may operates as bar.
To claim part performance the conditions are necessary:
1. That the transfer has contracted to transfer for consideration
any immoveable property by writing signed by him or on his
behalf from which necessary to constitute the transfer can be
ascertained with reasonable certainty.
2. That the transferee has in part performance of the contract,
take possession of the proper or any part.
3. The transferee has done some act in the further of the
contract.
The agreement of HPA did not satisfy any one of the
condition .HPA is not liable for the part performance of the
contract.

In the High Court case Nathulal Vs Phool Chand the court held
that did not dispute the proposition that a proposed vendee
couldn’t protect possession on an immoveable property on the
basis of oral agreement .The written agreement was sine qua
non for the application for the equitable doctrine of part
performance enshrined in sec 53A of the act. In Sardar
Gavindro Mahadik Vs.Devi sahai 1982(1) SCC 237, it was
reiterated that qualify for the protection of the doctrine of part
performance it must be show that there is an agreement to
transfer of immoveable property for consideration and the
contract is evidence by a writing signed by the person sought
to be bound by its and from which terms necessary to
constitute the transfer can ascertained with reasonable
certainty.
4. Whether claimants are contract for compensation with
interest on fails of authority to make availability?

There was no contract between the parties for compensation with

interest on fail of authority to make, availability, where
development authority having received the full piece does not
delivered possession of allotted plots or house within reasonable
time only when allotter is entitled to refund of amount paid with
reasonable time only when allotter is entitled for refund amount
 paid with reasonable interest but in this case no time period or
time is fixed for the delivery of possession of house. So that’s why
allotted is not entitled to any compensation with interest.
That in the case of Haryana development authority v/s Darash
Kumar the supreme court laid down general principal the granting
of relief. . The court held that there cannot be uniform awarded
of interest at 18% per annum in all the cases and that in cases and
complaint of deficiency in service by a development authority
relating to allotment of plots/ flats, the principle of Balbir Singh
should be applied. The decision of the Commission under appeal,
based on its earlier decision in Darsh Kumar, cannot be sustained.

PRAYER FOR RELIEF

It is humble prayed before the hon’ble court that keeping in view the
fact of the cases and conduct of the respondent the decree of claim or
compensation may be passed in the favors of the plaintiff or nay other
relief to which the plaintiff prayer.
 Judgments
Bangalore Development Authority vs Syndicate Bank on 17 May, 2007
Author: R V Raveendran
Bench: P. K. Balasubramanyan, R. V. Raveendra
CASE NO. Appeal (civil) 5462 of 2002
PETITIONER:
Bangalore Development Authority
RESPONDENT:
Syndicate Bank
DATE OF JUDGMENT: 17/05/2007
BENCH:
P. K. Balasubramanyan & R. V. Raveendran
JUDGMENT:
J U D G M E N T R. V. RAVEENDRAN J.
This appeal by Special Leave is filed against the order dated 11.04.2002, passed by the National
Consumer Dispute Redressal Commission ('Commission' for short) in O.P.No. 21 of 1995.

The Facts

2. The Banglore Development Authority (Appellant herein, 'BDA' for short) introduced a "Self
Financing Housing Scheme" for construction of flats/houses in Banglore in the year 1982. The
said Scheme contemplated construction of three types of flats/houses categorized as Higher
Income Group, Middle Income Group, and Low Income Group ('HIG', 'MIG', and 'LIG' for short).
Under the said scheme an applicant for allotment was required to make an initial deposit of
15% of the cost of the unit and pay the balance in eight quarterly instalments of 10% and the
last instalment of 5%.

3. Syndicate Bank ('Respondent' herein) made an application dated 17.7.1982 for allotment of
250 flats/houses under the said scheme, that is, 15 'HIG' Houses, 110 'MIG' units and 125 'LIG'
units. BDA registered the request for allotment of 15 HIG Houses, vide confirmation letter dated
20.8.1984. This appeal relates to delay in delivery of 11 HIG houses at R.M.V. Extension,
Bangalore.

4. BDA had initially fixed the tentative price of a HIG house as Rs.2,85,000/-. The price was
revised to Rs.4.75 lakhs per unit (Rs.5.5 lakhs in respect of corner units). By letter dated
22.08.1985, BDA informed the respondent about the revision of price of HIG Houses from
Rs.2.85 lakhs to 4.75 lakhs per unit. BDA also indicated the total amount due in respect of 15
HIG Houses and required the Respondent to pay the said amount in installments as shown in
the Annexure thereto. BDA also informed the Respondent that the units would be ready for
occupation in December, 1986. As respondent did not pay the instalments, BDA sent a letter
dated 20.10.1986 demanding payment. By letter dated 27.5.1987, BDA informed Respondent
that 15 Houses (including three corner houses) had been allotted to Respondent on 16.1.1987
and furnished the numbers of the houses allotted.

5. A sum of Rs.98,85,210/- paid by the Respondent towards the cost of LIG units became
refundable to respondent, on account of surrender of allotment of the 125 LIG units. The cost
of 15 HIG houses was Rs.73.5 lakhs (that is, three corner units at the rate of Rs.5.5 lakhs each
and 12 other units at the rate of Rs.4.75 lakhs each). The respondent had paid a sum of
Rs.19,33,925/- in advance towards the cost of the 15 H.I.G. houses and the balance due was
Rs.54,16,075/-. By letter dated 15.5.1989, BDA adjusted and appropriated the said sum of
Rs.54,16,075/- (due in respect of 15 HIG Houses) and a sum of Rs.21,66,250/- (due in respect of
MIG Units), from out of Rs.98,85,210/- paid towards LIG units, and refunded the balance of
Rs.23,02,885/- to the Respondent. Thus it would be seen that the cost of H.I.G. units was
received by BDA only on 15.05.1989.

6. BDA delivered 4 HIG houses in December, 1989 and May, 1990. The completion of
construction and delivery of remaining 11 H.I.G. houses (in RMV Extension, Bangalore) was
delayed. By letters dated 29.11.1989, 17.01.1990, 9.7.1993 and 11.1.1994, the Respondent
pointed out the delay in delivery of the HIG houses and requested for early delivery of
possession of the houses. Respondent also demanded interest on the price paid, at the bank
rate from 01.01.1986 till date the delivery of the houses apart from reimbursement of the
losses incurred on account of the non-delivery.

Claim, defence and the decision

7. The Respondent sought the following reliefs against BDA, in its complaint :

a) Completion and due delivery of the remaining 11 HIG houses;

b) Payment of Rs.1,98,40,930/73 by way of interest on the sum of Rs.53 lakhs being the price of
the said 11 houses from 01.01.1986 to 31.12.1994 (the interest claimed at the bank rate varying
from 16.5% to 24.25% P.A. compounded quarterly);

c) Payment of Rs. 16.5 lakhs as reimbursement of the rent paid by the Respondent for 11
houses at the rate of Rs.3,000/- per house per month from 01.01.1987 to 31.12.1994 (Note :
Though for 96 months the amount works out Rs.31,68,000/-, claim was restricted to Rs.16.5
lakhs which is the rent for 11 houses for 50 months);

d) Payment of Rs.25,00,000/- as compensation for mental agony and harassment;

e) Payment of future interest at 19.5% P.A. on Rs. 53,00,000/- plus Rs.33,000/- per month by
way of reimbursement of the rent, from 01.01.1995 till delivery of possession

8. BDA resisted the claim both on the question of maintainability, as also merits. In brief, the
contentions were :

a) It was not a service provider nor a seller of goods and the respondent was not a 'consumer'
and therefore the complaint under the Act was not maintainable.
b) The contract did not stipulate any period for completion and delivery. Being a building
contract, time was not the essence of the contract. The project related to construction of 558
HIG Houses. 490 houses were completed during 1989. The contractor - M/s. Khoday
Engineering, raised a dispute and delayed the work relating to the remaining 68 houses
(including 11 houses to be delivered to the respondent). After making all possible efforts to
persuade the contractor to take up and complete the work, it rescinded the contract with the
contractor by Resolution dated 15.2.1995 and took steps to get the work completed through an
alternative agency. The delay was thus for reasons wholly beyond its control and unintentional,
and there was no breach.

c) It would complete and deliver the 11 houses within a short time at the agreed price, though
price of the houses had risen by 10 times.

d) As it was executing the self financing housing scheme on 'no profit no loss' basis, it should
not be burdened with any financial liability for any delay.

e) Even if it was treated as a service provider and the complaint was held to be maintainable, as
there was no negligence or deficiency in service on its part, it was not liable to pay any interest
or compensation.

9. During the pendency of the complaint before the commission, BDA delivered one HIG house
on 21.1.1997 and remaining 10 HIG houses on 12.3.1997. The Respondent thus secured the
main relief sought in the complaint. What remained was the claim for interest and
compensation. Parties led evidence by way of affidavits. Neither party sought leave to cross-
examine the witness (deponent) of the other party. The Commission by order dated 11.04.2002
allowed the complaint. It held :

a) BDA had promised to deliver the houses to the Respondent by December, 1986.

b) In spite of respondent having made full payment and making repeated demands, 11 houses
were not delivered till the complaint was filed in 1995. Thus there was deficiency of service on
the part of BDA.

c) BDA had not placed any material on record to show why the houses could not be completed
and delivered between 1985 to 1991. The complainant was in no way concerned with the
dispute between BDA and its contractor and the consequential delay. Even though the 11
houses were delivered in 1997 after the complaint, BDA was guilty of deficiency in rendering
service.
In view of the said findings, following its decision in HUDA Vs. Darsh Kumar [Revision Petition
No. 1197/1998 dated 31.8.2001], it directed the appellant to pay interest at 18% per annum on
Rs.53,00,000/- (the approximate price of 11 HIG Houses) commencing from the expiry of two
years after the deposit of last instalment of Rs.53 lakhs up to date of handing over the
possession. The said order is challenged in this appeal.

The principles

10. Where a Development Authority forms layouts and allots plots/flats (or houses) by inviting
applications, the following general principles regulate the granting of relief to a consumer
(applicant for allotment) who complains of delay in delivery or non-delivery and seeks redressal
under the 

(a) Where the development authority having received the full price, does not deliver possession
of the allotted plot/flat/house within the time stipulated or within a reasonable time, or where
the allotment is cancelled or possession is refused without any justifiable cause, the allottee is
entitled for refund of the amount paid, with reasonable interest thereon from the date of
payment to date of refund. In addition, the allottee may also be entitled to compensation, as
may be decided with reference to the facts of each case.

(b) Where no time is stipulated for performance of the contract (that is for delivery), or where
time is not the essence of the contract and the buyer does not issue a notice making time the
essence by fixing a reasonable time for performance, if the buyer, instead of rescinding the
contract on the ground of non-performance, accepts the belated performance in terms of the
contract, there is no question of any breach or payment of damages under the general law
governing contracts.

(c) Where an alternative site is offered or delivered (at the agreed price) in view of its inability
to deliver the earlier allotted plot/flat/house, or where the delay in delivering possession of the
allotted plot/flat/house is for justifiable reasons, ordinarily the allottee will not be entitled to
any interest or compensation. This is because the buyer has the benefit of appreciation in
value.

(d) Though the relationship between Development Authority and an applicant for allotment is
that of a seller and buyer, and therefore governed by law of contracts, (which does not
recognise mental agony and suffering as a head of damages for breach), compensation can be
awarded to the consumer under the head of mental agony and suffering, by applying the
principle of Administrative Law, where the seller being a statutory authority acts negligently,
arbitrarily or capriciously.
(e) Where an alternative plot/flat/house is allotted and delivered, not at the original agreed
price, but by charging current market rate which is much higher, the allottee will be entitled to
interest at a reasonable rate on the amount paid towards the earlier allotment, from the date
of deposit to date of delivery of the alternative plot/flat/house. In addition, he may be entitled
to compensation also, determined with reference to the facts of the case, if there are no
justifiable reasons for non-delivery of the first allotted plot/flat/house.

(f) Where the plot/flat/house has been allotted at a tentative or provisional price, subject to
final determination of price on completion of the project (that is acquisition proceedings and
development activities), the Development Authority will be entitled to revise or increase the
price. But where the allotment is at a fixed price, and a higher price or extra payments are
illegally or unjustifiably demanded and collected, the allottee will be entitled to refund of such
excess with such interest, as may be determined with reference to the facts of the case.

(g) Where full payment is made and possession is delivered, but title deed is not executed
without any justifiable cause, the allottee may be awarded compensation, for harassment and
mental agony, in addition to appropriate direction for execution and delivery of title deed.

Whether Respondent is entitled to interest?

11. At the outset, we may notice that there is some vagueness in the order of the Commission,
in regard to the period for which interest is awarded. The Commission has awarded interest at
the rate of 18% per annum commencing from the expiry of two years after the deposit of 'last
installment' of Rs.53 lakhs. The sum of Rs.53 lakhs was not paid in installments as assumed by
the Commission. BDA recovered Rs.54,16,075/- due towards the cost of 15 HIG Houses by
adjustment and appropriation from the amount which had became refundable to the
Respondent on account of surrender of allotment in regard to LIG units.

12. The Commission has neither referred to the relevant facts nor drawn proper inferences.
There is no basis for the finding that BDA had agreed to deliver the houses by December, 1986
or the finding that no reason was shown for the delay in delivery. The allotment of 15 HIG
Houses identified by House numbers was only by resolution dated 16.1.1987 and
communicated to Respondent on 27.5.1987. The payment was only on 15.5.1989. Delivery
could not, therefore, obviously be by the end of December, 1986. If reasonable period for
construction is to be reckoned as two years (as assumed by the Commission), then the question
of delay would arise only after 15.5.1991.

13. As already noticed, where the grievance is one of delay in delivery of possession, and the
Development Authority delivers the house during the pendency of the complaint at the agreed
price, and such delivery is accepted by the allottee-complainant, the question of awarding any
interest on the price paid by him from the date of deposit to date of delivery of possession,
does not arise. The allottee who had the benefit of appreciation of price of the house, is not
entitled to interest on the price paid. In this case, the 11 houses were delivered in 1997 at the
agreed prices (Rs. 5.5 lacs per corner HIG House and Rs.4.75 lacs per other HIG Houses). In view
of it, the order of the Commission awarding interest at 18% per annum on the price of the
houses is unsustainable and liable to be set aside.

Whether respondent is entitled to any compensation?

14. This leads us to the next question as to whether the Respondent is entitled to any
compensation, to make good the loss caused to him on account of the delay in delivery. The
loss is the rental income which the houses would have fetched if they had been delivered
earlier from the agreed due date to date of actual delivery of possession. Alternatively, it is the
rent paid by the Respondent for the houses taken on lease due to non-availability of the
allotted houses. The Respondent contends that it is entitled to reimbursement of the rents paid
by it in respect of 11 houses, on account of the delay on the part of BDA in delivering the
houses.

15. The Respondent did not produce any document to show that it paid Rs.3,000/- per month
per house for similar houses between 1991 and 1997. Nor did it produce any evidence to show
that Rs.3000/- was the prevailing rent for similar houses. It is not the case of the Respondent
that documentary evidence for payment of rent was not available. Where documentary
evidence was available, but not produced, obviously a mere statement in the affidavit cannot
be the basis for award of damages.

16. The more serious issue is whether the facts and circumstances warrant a finding of
negligence and deficiency in service on the part of BDA necessitating award of compensation.
The brochure relating to the BDA scheme did not mention any specific date for delivery of
possession of the houses.

17. We find that both parties - BDA as also the Respondent proceeded on the basis that time
was not the essence of the contract. In a contract involving construction, time is not the
essence of the contract unless specified. Even when the respondent wrote the letters dated
29.11.1989, 17.1.1990, 9.7.1993 and 11.1.1994, it did not make time for performance the
essence of contract, nor fix any reasonable time for performance. The Respondent did not also
choose to terminate the contract, obviously in view of the manifold increase in the value of the
Houses. For the first time, by notice dated 11.7.1994, it purported to make the time the
essence, but demanded delivery within an unreasonable period of one month and filed the
complaint on 4.2.1995. Thus, it cannot be said that the Respondent made time the essence of
contract, in a manner recognized in law.

18. We may also note that the respondent had also written letters dated 27.12.2005 and
25.1.2006 during the pendency of these appeals stating that if the sale deeds were executed in
respect of these 11 houses, it will withdraw its claim against BDA. The sale deeds were not
executed and the matter is kept pending in view of the pendency of the dispute.

Conclusion

Before concluding, it is necessary to refer to one more contention urged by BDA. It contended
that when a person enters into a contract for purchasing a house (land with building), from a
Development Authority, the allottee does not 'hire or avail of a service' and is not a 'consumer'
under the Act. It appears that this contention was not pressed before the Commission nor
raised as a specific ground in the special leave petition, in view of the decision of this Cour. In
that case, a two-Judge Bench of this Court held that where a development authority undertakes
to construct buildings or allot houses or building sites either as amenity or as benefit, it
amounts to rendering of a service and will be covered by the expression 'service made available
to potential users' .

In view of the above, we allow this appeal and set aside the order dated
11.4.2002 of the National Consumer Disputes Redressal Commission. As the main prayer for
completion and delivery of the houses was complied with during the pendency of the
complaint, and as we have held that respondent is not entitled to interest or compensation, the
complaint is disposed of with a direction to BDA to complete the process of execution and
registration of sale deed/s in respect of the houses without claiming any extra cost, within three
months from today. The cost of stamp duty and registration in respect of such sale deeds will
be borne by the respondent. Parties to bear their respective costs.

Ashok Khanna vs Ghaziabad Development Authority on 18 August, 2009

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
NATIONAL
CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2002 OF 2005
(From the Order dated 25.04.2005 in Appeal No. 171 of 1997 of State
Consumer Disputes Redressal Commission, Lucknow, Uttar Pradesh)
ASHOK
KHANNA PETITIONER
VERSUS
GHAZIABAD DEVELOPMENT AUTHORITY RESPONDENT
BEFORE: -
HONBLE
MR. JUSTICE
ASHOK BHAN, PRESIDENT
HONBLE MR. B.K. TAIMNI, MEMBER
FOR THE PETITIONER : MR. ARVIND KUMAR GARG, ADVOCATE.
FOR
THE RESPON DENT
: MS. REEMA SINGH, ADVOCATE.
PRONOUNCED ON :
18.08.2009
ORDER
ASHOK BHAN J., PRESIDENT   Petitioner, who was the complainant before the District Consumer
Disputes Redressal Forum, Ghaziabad, Uttar Pradesh (herein referred to as
the District Forum for short), has filed the present Revision Petition.
 
Briefly stated, the facts of the case are:-
 Petitioner/complainant applied for a flat on 27.02.1988 under Kaushambi Apartment Scheme
1988 of the respondent-Ghaziabad Development Authority (hereinafter referred to as GDA for
short) and deposited Registration Fee of Rs.60,000/-. GDA sent Reservation Letter in favour of
the petitioner along with payment schedule. Petitioner paid the balance amount of
Rs.5,40,000/- as per the payment schedule sent by the GDA. It was alleged in the Complaint
that as per the Brochure, GDA had to deliver possession of the flat upto 31.07.1990. On
06.11.1993, GDA informed the petitioner that the cost of the flat has been increased by
Rs.57,000/- and asked the petitioner to deposit additional amount of Rs.57,000/- along with Rs.
6,470/- towards lease rent and Rs.3,600/- as service charges on or before 30.11.1993. The
possession was to be given upto 15.12.1993. Petitioner, after depositing the sum of Rs.57,000/-,
took delivery of possession on 20.12.1993. Alleging deficiency on the part of the GDA in not
delivering the possession within the stipulated time, the Complaint was filed seeking interest @
18% p.a. on the deposited amount for the delayed period. Rs.5,000/- were demanded by way of
rent in addition to compensation and litigation expenses, etc.   GDA, in its Written Statement,
admitted that the petitioner had applied for a flat in Kaushambi Appartment Scheme 1988. The
deposit of sum of Rs.6,00,000/- was also admitted. Stand taken by the GDA was that the period
of 2 years promised for the delivery of possession was on estimate basis. Similarly, cost of
Rs.6,00,000/- was also fixed on estimate basis. Due to escalation of cost of construction, the
petitioner was asked to deposit an additional sum of Rs.57,000/-. It was stated that the
petitioner was not entitled to any relief as he had taken the possession of the flat after being
satisfied.
 

District Forum came to the conclusion that possession was to be handed over to the petitioner
within 2 years and, since, the possession of the flat was handed over after a delay of more than
3 years, there was deficiency in providing the service and, accordingly, directed the GDA to pay
interest @ 18% p.a. for the period from 01.08.1990 to 20.12.1993 on the deposited amount
within two months. GDA was also directed to pay a sum of Rs.2,000/- towards compensation
for mental agony and expenses of case.

 Being aggrieved, GDA filed an Appeal before the State Consumer Disputes Redressal
Commission, Lucknow, Uttar Pradesh (hereinafter referred to as the State Commission for
short). State Commission, by the impugned Order, set aside the Order passed by the District
Forum and held that since the petitioner had taken possession of the flat without raising any
objection, he is not entitled to any relief. Accordingly, the Appeal was allowed and complaint
was ordered to be dismissed.
 Being aggrieved by the Order passed by the State Commission, petitioner has filed the present
Revision Petition.
 Counsel for the parties have been heard at length.

Learned Counsel for the petitioner contends that the State Commission has erred in reversing
the well-considered Order passed by the District Forum. According to him, GDA was deficient in
service in not delivering the possession within the stipulated period of 2 years. That the
petitioner was entitled to get interest on the deposited amount for delayed delivery of
possession of the flat. As against this, learned Counsel appearing for the respondent/GDA
contends that as per the Brochure, time was not the essence of the contract. Clause 16 of the
Brochure stated that the construction shall be completed within 2 years from the date of
reservation of the flat. No definite period was prescribed for delivery of possession. That the
petitioner was not entitled to any relief on account of the delayed delivery. She has relied upon
a Judgment of Honble the Supreme Court of India in reported in 2007 CTJ 689 (Supreme Court)
(CP) to contend that the petitioner was not entitled to any interest as he has taken the
possession of the flat without taking any objection.

 Honble Supreme Court in Bangalore Development Authority case (supra), after considering the
entire Case Law on the subject, laid down certain principles/guidelines for the Consumer Fora
while awarding relief to a consumer under the , 1986 who complains of delayed delivery of
possession or non-delivery of possession. The same reads as under: -

(a)     Where the development authority having received the full price, does not deliver
possession of the allotted plot/flat/house within the time stipulated or within a reasonable
time, or where the allotment is cancelled or possession is refused without any justifiable cause,
the allottee is entitled for refund of the amount paid, with reasonable interest thereon from the
date of payment to date of refund. In addition, the allottee may also be entitled to
compensation, as may be decided with reference to the facts of each case.

(b)    Where no time is stipulated for performance of the contract (that is for delivery), or where
time is not the essence of the contract and the buyer does not issue a notice making time the
essence by fixing a reasonable time for performance, if the buyer, instead of rescinding the
contract on the ground of non-performance, accepts the belated performance in terms of the
contract, there is no question of any breach or payment of damages under the general law
governing contracts.

(c)     Where an alternative site is offered or delivered (at the agreed price) in view of its inability
to deliver the earlier allotted plot/flat/house, or where the delay in delivering possession of the
allotted plot/flat/house is for justifiable reasons, ordinarily the allottee will not be entitled to
any interest or compensation. This is because the buyer has the benefit of appreciation in
value.

(d)    Though the relationship between Development Authority and an applicant for allotment is
that of a seller and buyer, and therefore governed by law of contracts, (which does not
recognise mental agony and suffering as a head of damages for breach), compensation can be
awarded to the consumer under the head of mental agony and suffering, by applying the
principle of Administrative Law, where the seller being a statutory authority acts negligently,
arbitrarily or capriciously.

(e)     Where an alternative plot/flat/house is allotted and delivered, not at the original agreed
price, but by charging current market rate which is much higher, the allottee will be entitled to
interest at a reasonable rate on the amount paid towards the earlier allotment, from the date
of deposit to date of delivery of the alternative plot/flat/house. In addition, he may be entitled
to compensation also, determined with reference to the facts of the case, if there are no
justifiable reasons for non-delivery of the first allotted plot/flat/house.

(f)       Where the plot/flat/house has been allotted at a tentative or provisional price, subject to
final determination of price on completion of the project (that is acquisition proceedings and
development activities), the Development Authority will be entitled to revise or increase the
price. But where the allotment is at a fixed price, and a higher price or extra payments are
illegally or unjustifiably demanded and collected, the allottee will be entitled to refund of such
excess with such interest, as may be determined with reference to the facts of the case.

(g)     Where full payment is made and possession is delivered, but title deed is not executed
without any justifiable cause, the allottee may be awarded compensation, for harassment and
mental agony, in addition to appropriate direction for execution and delivery of title deed.

(h)    Where the allotment relates to a flat/house and construction is incomplete or not in
accordance with the agreed specifications, when it is delivered, the allottee will be entitled to
compensation equivalent to the cost of completing the building or rectifying the defects.

(i)       The quantum of compensation to be awarded, if it is to be awarded, will depend on the

facts of each case, nature of harassment, the period of harassment and the nature of arbitrary
or capricious or negligent action of the authority which led to such harassment.

(j)       While deciding whether the allottee is entitled to any relief and in moulding the relief, the
following among other relevant factors should be considered: (i) whether the layout is
developed on 'no profit no loss' basis, or with commercial or profit motive; (ii) whether there is
any assurance or commitment in regard to date of delivery of possession; (iii) whether there
were any justifiable reasons for the delay or failure to deliver possession; (iv) whether the
complainant has alleged and proved that there has been any negligence, shortcoming or
inadequacy on the part of the developing authority or its officials in the performance of the
functions or obligations in regard to delivery; and (v) whether the allottee has been subjected
to avoidable harassment and mental agony

Coming to the facts of this case, Clause 16 of the Brochure which prescribes the time within
which the construction was to be completed reads as thus:-
 
16.00 Time of Completion of Apartments:
 Land is available for the construction of these apartments. The apartments are expected to be
completed within two years from the date of reservation. With speedy execution of work, GDA
will make best efforts to arrest the burden of escalation in the cost notified. The work is in
progress on the site which can be visited by the applicant.
 
A bare reading of this Clause shows that time was not the essence of the contract. The period
of 2 years for completion of construction was given on estimate basis. The words expected to
be completed denotes that the time was not the essence of the contract. Had the time been
the essence of the contract, then, the word expected would have been used and, instead,
definite period would have been given for delivery of possession.
 Time is not the essence of contract involving construction unless specified as held by the
Honble Supreme Court in paragraph 17 of its Judgment in Bangalore Development Authority
case (supra).
 The point before us is - as to whether the facts and circumstances of this case warrant a finding
of negligence in delivery of possession on the part of GDA necessitating award of compensation
by way of interest? The Brochure relating to GDA Scheme did not mention any specific date for
delivery of possession of the flats. No agreement was entered into between the parties
stipulating any time for performance or delivery of flats. The only document on which reliance
is being placed by both the parties is the Brochure in which the expected date of completion of
construction is mentioned to be 2 years. In the absence of any agreement making time to be
the essence of the contract or agreement or promise held, the GDA cannot be held negligent in
providing the service requiring the GDA to either pay compensation or interest on the
deposited amount to the petitioner.
 
The petitioner did not rescind the contract on the ground of non-performance. He accepted the
delayed performance in terms of the contract. Under the circumstances, the question of any
breach of contract or agreement did not arise which could lead to the payment of damages
under the general law governing the contract. Petitioner is also not entitled to any interest
because he has the benefit of appreciation in value.
 
In a recent Judgment in Ghaziabad Development Authority v. Shakuntala Rohatgi in Civil Appeal
No. 6051 of 2002 decided on 04.03.2009, Honble Supreme Court has reiterated the view taken
by it in Bangalore Development Authority case (supra). Paragraph 7 of the same reads as under:
-
 7. In all these appeals, the National Commission dismissed the Revision Petitions filed by the
Ghaziabad Development Authority merely on the ground that it had upheld the award of
interest @ 18% in its decision in Darsh Kumar (supra). The decision in Darsh Kumar (supra) was
reversed by this Court in This Court has laid down principles regarding the award of interest
.This Court has held that where the plot/flat, which is allotted, is not delivered in time but is
delivered after some delay at the original rate (without charging a revised higher rate which
was prevailing at a later date) the allottees will not be entitled to claim interest. Where the
allotment is at a tentative date.   

At the time of delivery of possession, respondent did not charge any additional price.
Rs.57,000/-, which were taken later, were paid by the petitioner without any protest. Another
fact which requires mention is that the possession was taken on 15.12.1993 whereas the
Complaint was filed in the later months of 1995, i.e., after a lapse of about 2 years which shows
that at the time of delivery of possession, the petitioner was satisfied but later on he changed
his mind and filed the Complaint seeking interest on the deposited amount.

     For the reasons stated above, we do not find any merit in this Revision Petition and dismiss
the same leaving the parties to bear their own costs.
 

................

(ASHOK BHAN J.) PRESIDENT     .

...............

(B.K. TAIMNI) MEMBER   REVISION PETITION NO. 2002 OF 2005 (From the Order dated
25.04.2005 in Appeal No. 171 of 1997 of State Consumer Disputes Redressal Commission,
Lucknow, Uttar Pradesh)   ASHOK KHANNA PETITIONER   VERSUS GHAZIABAD DEVELOPMENT
AUTHORITY RESPONDENT         Draft Order in the above matter is sent herewith for your kind
perusal. If approved, the same may be listed for pronouncement.

 (ASHOK BHAN J.) President 13.08.2009   Honble Mr. B.K. Taimni, Member.
Kanshi Ram (Deceased) Through His ... vs Delhi Development Authority on 18
January, 2008
Equivalent citations: 147 (2008) DLT 472

Author: P Nandrajog
Bench: P Nandrajog

JUDGMENT Pradeep Nandrajog, J.

1. Following substantial question of law is framed for consideration in the present appeal:

Whether on the pleadings of the parties and evidence on record the view taken by the Courts
below is legal and valid?

2. The present appeal is directed against the judgment and decree dated 3.11.2000 passed by
the learned Additional District Judge whereby the judgment and decree dated 22.8.1996 passed
by the learned Civil Judge dismissing the suit filed by the appellant was affirmed.

3. Very briefly, admitted facts as culled out from the impugned judgment as also from the
records before this Court are that on 6.5.1961 appellant Kanshi Ram was admitted as a member
of Panch Shila Cooperative House Building Society (hereinafter referred to as the Society), a
Society registered under the , 1925 as extended to Delhi.

4. The Society acquired land in Village Shahpur Jat and developed the same into a residential
colony 'Panch Shila Park'. A formal lease deed in respect of the said land was executed by the
Delhi Development Authority (respondent herein) in favor of the Society.

5. On 19.7.1964 a draw of lots for the allotment of plots to the members of the Society was
held. The appellant was declared successful for the allotment of the plot bearing municipal No.
N-77, Panch Shila Park, Delhi (hereinafter referred to as the suit property). Intimation in said
regard was sent by the Society to DDA.

6. On 3.12.1966 a perpetual sub-lease deed in respect of the suit property was executed by the
DDA and the Society in favor of the appellant. Pursuant to the execution of said sub-lease
possession of the suit property was handed over to the appellant.

7. After obtaining necessary sanctions from the authorities the appellant raised construction
over the suit property.

8. On 31.1.1981 appellant received a letter, Ex.DW-1/4, dated 21.1.1981 issued by DDA

informing him that the perpetual sub-lease deed dated 3.12.1966 executed in respect of the
suit property has been cancelled. Said notice reads as under:

To, Shri Kanshi Ram, C/o M/s. Jai Bharat Trading Co-Machinery Merchant, 4025, Naya Bazar,
Delhi.

Sub: Cancellation of sub-lease due to mis-statements to get plot No. N-77, Panch Shila C.H.B.
Society.

Sir, I am directed to inform you that the Lt. Governor (Lesser) has cancelled the sub-lease of the
Plot No. N-77 in Panch Shila Coop. House Bldg. Society for breach under Clause III of the
perpetual sub-lease deed. You are therefore requested to hand over the possession of the plot
to our Asstt. Engineer on 30/1/1981 at 10.30 A.M.

Yours faithfully, sd/-

DY.DIRECTOR (CS)

9. That on 31.1.1981, the plaintiff received a notice No. F.2(214)78/CB/DDA dated 21.1.1981
from the Deputy Director (CS) of Delhi Development Authority (Co-operative Societies Cell)
intimating him that the Lt. Governor (Lesser) has cancelled the Sub-Lease of the plot No. N-77
in Panchsheela Co-operative House Building Society for breach under Clause III of the Perpetual
Sub-Lease and further called upon the plaintiff to hand over the possession of the plot to the
Asstt. Engineer on 30.1.1981 at 10.30 a.m.

10. The plaintiff submits that he has not committed any breach of the Perpetual Sub-Lease or of
any Clause thereof and the defendant have no right or title to cancel the Sub-lease or to claim
possession of the said plot from the plaintiff.
11. In any case, the plaintiff submits that according to Clause IV of the said Perpetual Sub-Lease,
no forfeiture or re-entry shall be affected until the Lesser or lessee have served on the Sub-
lessee a notice in writing specifying the particular breach complained of and if the breach is
capable of remedying requiring the sub-lessee to remedy the breach.

13. That no show cause Notice or notice cancelling the sub-lease was over served on the
plaintiff as alleged by the DDA in the notice dated 21.1.1981. The plaintiff had not opportunity
to put all the facts before the Officer concerned and no opportunity of being heard had been
granted to him and no order of cancellation of Sub-Lease or forfeiture and re-entry thereof
could be effected.

14. Case thus projected by the appellant in the plaint was that the cancellation of the perpetual
Sub-Lease Deed dated 3.12.1966 by the DDA is null and void because of the following 2
reasons:

A. Appellant has not committed any breach in terms of Clause-III of the perpetual Sub-Lease
Deed or of any other clause.

B. Clause-IV of the perpetual Sub-Lease Deed mandated that before determination of the Sub-
Lease the Lesser DDA must serve a show cause notice upon the sub-lessee i.e. the appellant.
That no show cause notice as required under Clause-IV of the perpetual Sub-Lease Deed was
served upon the appellant.

15. In response to the case set up by the appellant respondent DDA filed its written statement
relevant averments whereof are being noted herein below.

16. In the written statement filed no particulars of false affidavit allegedly sworn by the
appellant were specified. However, the false affidavit allegedly sworn by the appellant was filed
on record. The said affidavit Ex. PW2/D1 is dated 11.6.1966 and reads as under:

AFFIDAVIT I, KANSHI RAM son of L. Badlu Ram aged 60 years, resident of C/o Jai Bharat Trading
Co., Naya Bazar, Delhi and a member of the Panch Shila Cooperative House Building Society
Ltd., New Delhi-17 do hereby affirm and declare as under:

1. That neither I nor my wife nor any of my dependent relations (including unmarried children)
is a member of any other house building Cooperative Society functioning in Delhi/New
Delhi/Delhi Cantt.

2. That I do not own, either in full or in part, on leasehold or freehold basis, any plot of land or a
house in Delhi/New Delhi/Delhi Cantt nor does my wife or any of my dependent relations
including unmarried children, own either in full or in part on leasehold or free-hold basis, any
plot of land or a house in Delhi/New Delhi/Delhi Cantt.

3. That I have noted the conditions in the bye laws of the house building Cooperative Society of
which I am a member that I am required to inform the said society as well as the Chief
Commissioner within one month if any plot of land or house is acquired by me or by my wife or
my dependent relations, including unmarried children, during the period of my membership of
the Society.

17. The show cause notice Ex. DW1/2 dated 26.3.1980 allegedly sent to the appellant reads as
under:

SHOW CAUSE NOTICE To, Sh. Kanshi Ram, C/O M/s Jai Bharat Trading Co.

Machinery Merchant, 4025, Naya Bazar, DELHI.

WHEREAS you were allotted plot No. N-77 in Panch Shila Park Cooperative House Building
Society, the sub lease of which was executed on 3.12.1966;

AND whereas you had filed an affidavit to the effect that you did not own, either in full or in
part on lease hold basis any plot of land or a house in Delhi/New Delhi/Delhi Cantt. nor does
your wife or any of your dependent relations including unmarried children own either in full or
part on lease hold/free hold basis any plot of land or a house in Delhi/New Delhi/Delhi Cantt.
which was a pre-requisite condition for the allotment of a plot;

AND whereas it has come to notice that you hold the ? share in another property 25/41,
Punjabi Bagh.

THUS you obtained the allotment of plot No. N-77, Panch Shila Park Cooperative House Building
Society after concealing the facts.

You are hereby required to show cause within 30 days from the date of issue of this notice as to
why the Sub-Lease of the plot in question may not be cancelled and possession be resumed for
mis-statement of facts.

sd/-

Deputy Director (Coop.)

18. From a cumulative reading of the letter Ex. DW1/4 dated 21.1.1981, show cause notice
Ex.DW-1/2 dated 26.3.1980 issued by the DDA and the written statement filed by the DDA
defense set up by DDA can be culled out as under:

A. Appellant has obtained allotment of the suit property and got executed the perpetual Sub-
Lease Deed in respect of the suit property on basis of mis-representation of facts. That by
making mis-representation of facts appellant has committed a breach in terms of Clause-III of
the perpetual Sub- Lease Deed.

B. Mis-representation of facts alleged to be made by the appellant was that the appellant has
sworn a false affidavit by deposing that neither he, his wife or his dependents owned a
residential plot/house/flat in Delhi. While an enquiry conducted by DDA revealed that he was
co-owner of the plot bearing municipal No. 25/41, Punjabi Bagh, Delhi.

C. A show cause notice Ex. DW-1/2 dated 26.3.1980 was duly sent to the appellant and that the
same was returned by the postal authorities with an endorsement 'refused to receive'.

19. In the replication filed to the written statement of the DDA appellant averred as under:

Statements made in para 1 of the preliminary objections are not admitted. It is denied that the
plaintiff made any mis representation of facts to obtain the sub lease as alleged. It is denied
that the defendant can cancel the sub lease as alleged.

20. Perusal of the replication shows that the appellant reiterated the stand taken by him in his
plaint and additionally stated that:

A. In the year 1966, i.e. at the time when the perpetual Sub-Lease was executed there were no
restrictions on the members of the Society from holding any other property in Delhi apart from
the plot allotted to them by the Society.

B. He has never sworn a false affidavit as alleged by the DDA.

C. He was a benami owner of the plot in Punjabi Bagh and in any case in the year 1965 he
transferred the ownership of the said plot in favor of his son Ved Prakash i.e. before the
execution of the perpetual Sub-Lease Deed dated 3.12.1966.

21. On the basis of pleadings of parties under-noted 5 issues were framed by the Trial Court:

1. Whether the action of the defendant in cancelling the lease is illegal and ultra vires? OPP
2. Whether the suit is barred for want of notice?

3. Whether the plaintiff has any right, title or interest in the suit property? OPP

4. Whether the plaintiff is entitled to the relief claimed? OPP

5. Relief.

22. In support of his case appellant examined himself as PW-2 and one Mr. A.B. Gupta, Office
Assistant, Panch Shila Cooperative House Building Society as PW-1.

23. A.B. Gupta in his testimony as PW-1 deposed that on 6.5.1961 appellant was admitted as a
member of the society. That on 19.7.1964 suit property was allotted to the appellant by the
Society. In order to establish the membership of the appellant in the Society PW-1 duly proved
application filed by the appellant for membership in the Society as PW-1/1, members register
of the Society as Ex.PW-1/2, share allotment register of the Society as Ex. PW-1/3 and counter
foil of the share certificates issued to the appellant by the Society as Ex.PW-1/4.

24. Appellant in his testimony as PW-2 deposed on the lines of the pleadings filed by him.

25. As regards affidavit Ex.PW2/D1 dated 11.6.1966 allegedly executed by him appellant
deposed as under:

I do not know English and cannot read and write. I can only sign in English. Several lease deeds
wee presented for registration on that day and the person representing the society asked me to
sign as a witness in the perpetual sub-leases of other members. I signed as a witness in several
perpetual sub-lease. I do not know what was written on the papers which I signed...I have seen
paper mark-X, I cannot say who got the same typed. I cannot read its contents. I never went to
any Oath Commissioner. I do not know if this is the affidavit claimed by DDA to be executed by
me. I never violated any terms and conditions of the bye-laws of Punchsheel Housing Society.

26. As regards ownership of the plot in Punjabi Bagh appellant deposed as under:

My son Shri Ved Parkash is the member of Punjabi Bagh Refugee Housing Society. He purchased
plot No. 25 Punjabi Bagh colony, Rohtak Road from Shri Sarabjit Singh. He got the sale deed
executed in favor of himself, my other son Shri Jagdish Rai Aggarwal and myself. The sale deed
was executed on 22.10.64 and was presented for registration on 23.10.64. The plot in
Punchsheel had already been allotted to me on 19.7.1964.
27. It is relevant to note that in his examination-in-chief appellant has not deposed to the effect
he had transferred ownership of the plot in Punjabi Bagh in favor of his son Ved Prakash before
the execution of the perpetual sub-lease deed Ex.DW1/1 whereas in the replication appellant
has emphatically averred to said effect.

28. As regards show cause notice Ex.DW1/2 dated 26.3.1980 allegedly served upon him
appellant deposed as under:

I cannot say whether I received letter date 26.3.80 from DDA. The address on the notice dated
26.3.80 has been correctly mentioned. (Vol. This firm was closed about 15-16 years ago). I do
not remember the date when it was closed. No letter was received by me at the address of the
shop during the period is lying closed.

29. On behalf of DDA Durga Dass, Superintendent, CS Cell, DDA was examined as DW-1. DW-1
proved the perpetual Sub-Lease Deed dated 3.12.1966 as Ex.DW1/1, show cause notice dated
26.3.1980 allegedly served upon the appellant as Ex. DW1/2, envelope bearing endorsement
'refused to receive' as Ex.DW-1/3 and cancellation letter dated 21.1.1981 as Ex.DW-1/4.

30. After noting the provisions of Clause-III of the perpetual Sub- Lease Deed dated 3.12.1966
learned Trial Court has held that the appellant obtained allotment of the suit property and got
executed perpetual Sub-Lease Deed dated 3.12.1966 in respect of the suit property on the basis
of mis- representation of facts and thus committed a breach in terms of Clause-III of the
perpetual Sub-Lease.

31. As regards the contention of the appellant that consideration for the plot in Punjabi Bagh
was paid by his son Ved Parkash and thus he was only a benami owner of the said plot and that
he transferred the ownership of the said plot in favor of his son Ved Parkash before the
execution of the perpetual sub-lease Ex.DW1/1 dated 3.12.1966 the learned Trial Court .

32. As regards the next contention of the appellant, i.e. he was not given a show cause notice as
required under Clause-IV of the perpetual Sub- Lease Deed the learned Trial Judge has held as
under:

The plaintiff has also challenged the cancellation on the ground that the said cancellation was
done without offering him an opportunity of hearing or of remedying the breach. In my opinion,
the breach was not capable of being remedied. The breach committed by the plaintiff was
receiving the allotment of the plot No. 77 on the basis of a false affidavit.

33. On the basis of the afore-noted discussion vide judgment and decree dated 22.8.1996 the
learned Trial Court has dismissed the suit filed by the appellant.
34. Aggrieved by the judgment and decree dated 22.8.1996 appellant preferred an appeal
before the court of Additional District Judge.

35. Learned Appellate Court agreed with the decision of the Trial Court and vide impugned
judgment and decree dated 3.11.2000 affirmed the judgment and decree dated 22.8.1996
passed by the learned Trial Court dismissing the suit filed by the appellant. Reasoning given by
the Appellate Court reads as under:

First of all, I shall deal with the contention of the appellant that no Show Cause Notice was
served upon him. According to DDA it had sent a Show-Cause Notice dated 26.3.1980 which is
Ex.DW.1/2 to the appellant calling upon him to show cause as to why the sub lease be not
cancelled and possession be not resumed. According to the appellant, the notice was sent to his
shop which was lying closed from many years. However, he admits receipt of final notice of
cancellation dated 21.1.1981, which is Ex.DW.1/4. Appellant had claimed that the initial Show
Cause Notice dated 26.3.1980 was sent at his shop which was lying closed from many years. If
we take a look at the envelope in which the said notice was sent, we find that it was endorsed
by postal authorities that the appellant had refused to accept.

36. In these circumstances, appellant has filed the present appeal directed against the
judgment and decree dated 3.11.2000 passed by the learned Additional District Judge.

37. The core issue on which parties were litigating was whether appellant had obtained
allotment of the suit property by misrepresenting facts. 38. Alleged misrepresentation was the
declaration in the affidavit Ex.PW2/D1 allegedly submitted by the appellant deposing that he
did not own any land in Delhi. Whereas DDA asserted the same to be false, appellant asserted
that he did not submit the affidavit.

39. Misrepresentation means a false representation of facts made by a party in relation to an

essential or incidental term to a contract. (See 1872, 'Law of Contract' by Cheshire, Fifoot and
Furmston (XIIIth Edition) and 'Law of Contract' by Anson (XXVIth Edition).

40. Burden of proof of proving the misrepresentation is upon the person who alleges the same.

41. To establish that the said false representation allegedly made by the appellant amounts to
'misrepresentation of facts' it was essential for DDA to first establish that there were
restrictions on the members of the Society, their spouses and dependents from owning any
residential property in Delhi apart from plots allotted to them by the Society.

42. It was urged by learned counsel for the appellant that in the written statement filed by DDA
there is no averment to the effect that there were restrictions on the members of the Society,
their spouses and dependents from owning any residential property in Delhi apart from plots
allotted to them by the Society. Thus counsel urged that the very foundation of the defense was
missing.

43. It is well settled that a party can be permitted to adduce evidence on the basis of the case
pleaded by him in his pleadings. As in the decision reported as Abubakar v. Harun the Supreme
Court observed as under:

No amount of proof can substitute pleadings which are the claim of a litigating party.

44. The purpose of this principle is two-fold: (i) to appraise the opposite party, distinctly and
specifically, of the case he is called upon to answer so that he may properly prepare his defense
and is not taken by surprise; (ii) to maintain an accurate record of the cause of action as a
protection against a second or subsequent proceeding founded upon the same allegations. 45.
However each and every variance between the pleading and proof is not fatal. Where parties
are aware of the controversy and go to trial with full knowledge that a particular question is at
issue, absence of specific pleading is a mere irregularity.

46. In the decision reported as Bhagwati Prasad v. Chandramaul the Supreme Court observed as
under:

There can be no doubt that if a party asks for a relief on a clear and specific ground, and in the
issues or at the trial, no other ground is covered either directly or by necessary implication, it
would not be open to the said party to attempt to sustain the same claim on a ground which is
entirely new.

47. In the decision reported as Kali Prasad Agarwalla (Dead) by LR's and . the Supreme Court
observed as under:

It was, however, urged for the appellants that there is no proper pleading or issue for
determination of the aforesaid question and the evidence let in should not be looked into. It is
too late to raise this contention. The parties went to trial knowing fully well what they were
required to prove. They have adduced evidence of their choice in support of the respective
claims. That evidence has been considered by both courts below. They cannot now turn round
and say that the evidence should not be looked into. This is a well accepted principle.

48. In the decision reported as J.B. Mangharam and Co. and Anr. v. ESI Corporation Division
Bench of the Madhya Pradesh High Court observed as under:
So far as the instant case is concerned, the question, therefore, is whether the die of the power
press is a dangerous part of the machinery within the meaning of the aforesaid provision. We
have to look to the substance and not the form of the pleading. Even if a plea is not properly
worded, it would make no difference if the substance is clear and the other side is not likely to
be misled thereby. The whole object of the pleadings is to bring the parties to an issue and if a
pleading fulfills this object no objection can be entertained merely on the ground that it is not
expressed in particular terms. We may here quote the following observations of their Lordships
of the Supreme Court regarding the construction of pleadings in Kedar Lal v. Hari Lal :

The Court would be slow to throw out a claim on a mere technicality of pleading when the
substance of the thing is there and no prejudice is caused to the other side, however clumsily or
inartistically the plaint may be worded.

49. In the decision reported as  Bhagirathibai Madhya Pradesh High Court observed as under:

There was, it will be seen no specific plea that the plaintiff's predecessors had, at some time in
the past, migrated from any State or region where the Bombay School of Hindu Law was in
force or that they had carried with them their personal law. No issue was, therefore, framed on
this particular aspect of the matter. Even so, it may well be regarded as covered by the general
issue whether the parties are governed by the Bombay School of Hindu Law.

50. In the instant case appellant was fully conscious of the fact that whether there were
restrictions on the members of the Society their spouses and dependents from owning any
residential property in Delhi apart from plots allotted to them by the Society or not was a
'question involved in the suit' as evident from the fact that the appellant in his replication
averred to the effect that at the time when the perpetual sub-lease Ex.DW1/1 dated 3.12.66
was executed.

51. In view of the ratio laid down by the Supreme Court in Bhagwati Prasad and Kali Prasad's
cases (supra), the absence of the averment that there were restrictions on the members of the
Society or their dependents from owning any residential property in Delhi apart from plots
allotted to them by the Society in the written statement of DDA is of no effect for the reason
appellant was fully aware that the said question was at issue in the suit.

52. Thus in order to decide whether the appellant obtained the allotment of the suit property
by misrepresenting facts and thus committed a breach in terms of Clause-III of the perpetual
sub-lease deed Ex.DW1/1 dated 3.12.66 the learned Trial Court was required to consider
following 5 questions:
A. Whether there were restrictions on the members of the Society, their spouses and
dependents from owning any residential property in Delhi apart from plots allotted to them by
the Society?

B. Whether the appellant was a benami/ostensible owner of the plot bearing No. 25/41,
Punjabi Bagh, Delhi?

C. Whether the appellant transferred the ownership of the plot in Punjabi Bagh in favor of his
son Ved Prakash before the execution of perpetual sub-lease ex.DW1/1 dated 3.12.66?

D. Whether the appellant has sworn a false affidavit Ex.PW2/D1 dated 11.6.1966 as alleged by
DDA?

E. Whether the show-cause notice Ex.DW-2 dated 26.3.1980 was duly sent to the appellant as
claimed by DDA?

53. As regards question 'A' suffice would it be to note the 'Large Scale Acquisition and
Development and Disposal of Land in Delhi Policy, 1961' (hereinafter referred to as the Policy)
notified by the Government of India on 2.5.1961. Clause 10(a) of the said policy reads as under:

No plot should be allotted to any person, who whose wife/husband or any his/her dependent
relations including unmarried children owns a house or residential plot of land in Delhi, New
Delhi or Delhi Cantonment. The question of making an exception in the case of persons living in
a congested locality or whose family has out-grown should be considered after some
experience has been gained in the working of the scheme.

54. Though said policy was not filed by DDA before the trial court yet this court can take judicial
notice of the said policy in view of of the Indian Evidence Act which provides that the Court can
take judicial notice of the laws in India.

55. The said policy has been noted in number of judicial pronouncements. For instance, in the
decision reported as Rashmi Nagrath v. Sarva Priya Cooperative House Building Society Ltd.
Division Bench of this Court noted Clause 10(a) of the Policy by observing as under:

Apart from that, Ministry of Home Affairs, Government of India vide its circular dated 2.5.1961
regarding allotment of land had directed that no plots should be allotted to any person, whose
wife/husband or any of his/her dependent relation including unmarried children own a house
or residential plot of land in Delhi/New Delhi/Delhi Cantt.

56. At this stage, it is necessary to note following three dates:

a) 6.5.1961 .... Admission of the appellant as a member of the Society

b) 19.7.1964 .... Allotment of the suit property by the Society in favor of the appellant.

c) 3.12.66 .... Execution of perpetual sub-lease deed Ex.DW1/1.

The Policy was notified on 2.5.1961. Thus, on all the afore-noted three dates there were
restrictions on the members of the Society, their spouses and dependents from owning any
residential property in Delhi apart from the plots allotted to them by the Society.

57. Appellant has merely raised a bald averment that at the time of the allotment of the suit
property and execution of perpetual sub-lease deed Ex.DW1/1 there were no restrictions on
the members of the Society, their spouses and dependents from owning any residential
property in Delhi apart from the plots allotted to them by the Society. No material has been
placed on record by the appellant in support of this contention.

58. In view of Clause 10(a) of the Policy I hold that at the time of admission of appellant as a
member of the Society, allotment of the suit property in favor of the appellant and execution of
the perpetual sub-lease deed Ex.DW1/1 there were restrictions on the members of the Society,
their spouses and dependents from owning any residential property in Delhi apart from plots
allotted to them by the Society.

59. Before proceeding to consider questions 'B', 'C', 'D' and 'E' I would like to note following
judicial pronouncements.

60. Keeping in mind the afore-noted law I shall now determine the correctness of the decision
of the courts below on the questions 'B', 'C', 'D' and 'E'.

61. Pertaining to questions 'B' and 'C' the Courts below have noted that no evidence was led by
the appellant to establish that he was a benamidar/ostensible owner of the plot in Punjabi Bagh
and that he had transferred ownership of the said plot in favor of his son before the execution
of the perpetual sub-lease deed Ex.DW1/1. On said reasoning the courts below have answered
in negative on the questions 'B' and 'C'.

62. A perusal of the trial court record shows that the courts below have rightly held that no
evidence was led by the appellant to establish that he was a benamidar/ostensible owner of
the plot in Punjabi Bagh and that he had transferred ownership of the said plot in favor of his
son before the execution of the perpetual sub-lease deed Ex.DW1/1.
63. The version of the appellant receives a further setback in light of the fact that appellant in
his testimony as PW-2 did not depose to the effect that he transferred the ownership of the
plot in Punjabi Bagh in favor of his son Ved Prakash before the execution of the perpetual sub-
lease Ex.DW1/1.

64. Pertaining to question 'D' version of the appellant was that he never executed affidavit
Ex.PW2/D1 dated 11.6.66. That he could not read or write English and could sign in English.
That officials of Society obtained his signatures on certain papers. That he signed the said
papers without reading or understanding the contents of the same.

65. Noting that the date of affidavit Ex.PW2/D1 is antecedent to the execution of the perpetual
sub-lease Ex.DW1/1 the learned Trial Court has held that there is a strong presumption that a
condition precedent of allotment of the plots of the Society was that members of the Society
were required to submit an affidavit declaring that neither they nor their spouses and
dependents own any residential property in Delhi and that in fulfilllment of said condition
appellant submitted affidavit Ex.PW2/D1.

66. The version of the appellant that he could not read or write English was noted and
disbelieved by the appellate court.

67. Last contention advanced by the appellant that he did not receive show cause notice
Ex.DW1/2 dated 26.3.1980 for the reason the shop to which show cause notice was sent was
lying closed since last 15-16 years was rejected by the Trial Court on the reasoning that there
was no occasion for the postman to falsely endorse 'refused to receive' on the envelope
Ex.DW1/3.

68. The learned Appellate Court went a step further and had noted that show cause notice
Ex.DW1/2 dated 26.3.1980 and cancellation letter Ex.DW1/4 dated 21.1.1981 were sent to the
same address 'M/s Jai Bharat Trading Co, Machinery Merchant, 4025, Naya Bazaar, Delhi' and
that appellant admitted in his testimony that the cancellation letter dated 21.1.1981 was
received by him at said address. Aft

69. On the basis of their decisions on questions 'B', 'C', 'D' and 'E' both the courts below have
concurrently held that the appellant had obtained allotment of the suit property by
misrepresenting facts and thus committed a breach in terms of Clause III of the perpetual sub-
lease Ex.DW1/1 dated 3.12.66. These are findings of facts.

70. In view of judicial pronouncements noted in para 58 above it can safely be held that this
Court has no power to interfere with the findings of the fact unless there is an error of law
vitiating the findings of the fact. It has no power to reappraise the evidence or to find out what
is the weight attached to a particular evidence.

72. No error of law or perversity has been pointed out by the appellant in the reasoning or in
the appreciation of evidence by the courts below in the arriving at the said findings of facts.

73. Circumstances of the case and evidence on record probablizes the view taken by the Courts
below. Reasoning adopted by the courts below is sound.

74. In view of above discussion I do not find any merits in the present appeal.

75. The same is dismissed.

76. No costs.

Nathulal vs Phoolchand on 16 October, 1969

Equivalent citations: 1970 AIR 546, 1970 SCR (2) 854

Author: S C.
Bench: Shah, J.C.

PETITIONER:
NATHULAL

Vs.

RESPONDENT:
PHOOLCHAND

DATE OF JUDGMENT:
16/10/1969

BENCH:
SHAH, J.C.
BENCH:
SHAH, J.C.
HEGDE, K.S.
CITATION:
1970 AIR 546 1970 SCR (2) 854
1969 SCC (3) 120
CITATOR INFO :
R 1982 SC 989 (10,40)

ACT:
of 1882, and Defence of
part performance underConditions for-When defendant
is deemed to be ready and willing to perform his part of
contract-Effect of on provisions of Indian Contract
Act, 1872-Sequence in which parties to agreement are to
carry out their parts of contract-Effect of4) and
70(8) of Madhya Pradesh Land Revenue and Tenancy Act 66 of
1950-66 of 1950 by Madhya Pradesh Land Revenue
Code 1959 whether retrospective.

HEADNOTE:
The appellant agreed in writing to sell a ginning factory
situated in Madhya Pradesh and the agricultural land on
which,it stood, to the respondent for a sum off Rs. 43,077.
The land in question stood entered in the revenue records in
the name of the appellant's brother. The respondent made
part payment at the time of the execution of the agreement
and promised to pay the balance by a fixed date. On the
ground that the balance was not paid on the due date, the
appellant rescinded the contract and commenced an action in
the Court of the District Judge. The defence of
the
respondent was that he had made arrangements to pay
the
balance of the agreed amount and had offered to pay it
was
the appellant who had failed to fulfill his part of
the
agreement inasmuch as he had not taken steps to get deleted
the name of his brother from the revenue records. The trial
court decreed the suit but the High Court reversed
the
decree. The appellant filed the present appeal
with
certificate. Dismissing the appeal,
HELD, : The respondent was entitled to rely on the doctrine
of part performance in of the Transfer of Property
Act, and s. 70(8) of the Madhya Pradesh Land Revenue
and
Tenancy Act, 1950 was not a bar to that defence. Section
70(8) only requires that not only the conditions prescribed
by but registration of sale deed in accordance with
the land of registration for the time being in force is a
condition required to be complied with before a sale is
deemed valid. There was no sale in the present case and the
respondent was not relying on any sale. He was relying upon
a contract of sale and the equity for
defending his
possession against the claim made by the appellant. [858 B-
D]
There was in the present case a contract to transfer for
consideration immovable property by writing signed by the
appellant from which the terms necessary to constitute the
transfer could be ascertained with reasonable certainty. In
part performance of the contract the respondent had taken
possession of the property and he had in pursuance thereof
paid an amount of Rs. 22,011. The contention raised on
behalf of the appellant that the act done in pursuance of
the contract must be independent of the terms of
the
contract could not be accepted. The first three conditions
for the defence of part performance to be effectively set up
by. the respondent therefore existed. [859 B]
The fourth condition in-that the transferee has
performed or is willing to perform his part of the contract-
was also satisfied in the case because:
855
(i) In considering whether a person is willing to perform
his part of the contract the sequence in which the
obligations under a contract are to be performed must be
taken into account. By virtue ofof the Transfer of
Property Act the chapters and sections of the Transfer of
Property Act which relate to contracts are to be taken as
part of the 1872. If therefore und
the terms of the contract obligations of the parties have to
be performed in a certain sequence, one of the parties to
the contract cannot require compliance with the obligations
by the other party without in the first instance performing
his own part of the contract which in the sequence of
obligation is performable by him earlier.
(ii) The appellant had expressly undertaken to have the
revenue records rectified by securing the deletion of
his
brother's name from the revenue records, and it was further
an implied condition of the contract that the appellant
would secure the sanction of the Collector to the transferor
under s. 70(4) of the Madhya Bharat Land Revenue and Tenancy
Act, 66 of 1950. The first condition was not fulfilled in
due time and the second condition was never fulfilled. The
repeat of Act 66 of 1950 by the Madhya Pradesh Land Revenue
Code, 1959 did not have retrospective operation.
(iii) In view of the arrangement made by the respondent
it was clear that he had at all relevant times made
necessary arrangements for paying the amount due, but so
long as the appellant did not carry out his part of the
contract the respondent could not be called upon to pay the
balance of the price. It must therefore be held that
the
respondent was at all times ready and willing to carry out
his part of th contract. [859 E-H]
Motilal & Ors. v. Nanhelal and Anr. LR. 57 I.A. 333,
Mrs.
Chandhee Widya Vati Madden v. Dr. C. L. Katial & Ors. [1964]
2 S.C.R. 495 and Bank of India Ltd. & Ors. v. Jamsetji A. H.
Chinov and M/s. Chinoy and Co., L.R. 77 I.A. 76, 91,
referred to.

JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2345 of 1966.

Appeal from the judgment and decree dated December 3, 1965 of the Madhya Pradesh High
Court, Indore Bench in First Appeal No. 56 of 1961.
I. N. Shroff and B. L. Joshi, for the appellant. R. Gopalakrishnan, for the respondent.

The Judgment of the Court was delivered by Shah, J. Nathulal-appellant in this appeal-was the
owner of a Ginning Factory constructed on a plot of agricultural 'land bearing Khasra No. 259/1.
The land stood entered in the revenue records in the name of Chittarmal.-brother of Nathulal.
On February 26, 1951, Nathulal agreed to sell to Phoolchand the land and the Ginning Factory
for Rs. 43,01 1,/-. He received in part payment Rs. 22,011 /-, and put Phoolchand in possession
of the property. Phoolchand agreed to pay the balance on or before May 7, 1951. The terms of
the agreement, were reduced to writing in counter-part and were duly signed by the parties.

On the plea that Phoolchand had failed to pay on the due date the balance of price, Nathulal
rescinded the contract on October 8, 1951 and commenced an action in May, 1954 in the Court
of the District Judge, Nimar, for a decree for possession of the land and the factory and for
mesne profits from the date of delivery till possession was restored to him, alleging that
Phoolchand was a trespasser because he had contrary to 'the express terms of the agreement
made default in payment of the balance of the purchase price on or before May 7, 1951.
Phoolchand contended that Nathulal had failed to get the name of Chittarmal "deleted" from
the revenue record according to the terms of the agreement, that he, Phoolchand, was ready
and willing- to pay the balance of Rs. 21,000/'-, that he had sent a telegram on May 7, 1951,
offering to pay the balance against execution of the sale deed, that the agreement had been
unlawful altered by Nathulal after execution by adding a clause by which the possession of
Phoolchand in default of payment of money on or before May 7, 1951, was declared unlawful.
The Trial Court decreed the suit holding that Phoolchand committed breach of contract in that
he failed to pay the balance due by him on or before the due date. In appeal the High Court of
Madhya Pradesh reversed the decree. The High Court declared that Nathulal was entitled to the
balance of the consideration a,-. also 'mesne profits" at the rate of Rs.' 1,500/- per annum
from ,%lay 7, 1951 till the date on which Rs. 21,000,/- were deposited by Phoolchand within
two months of the passing of the decree. Subject to this direction Phoolchand was allowed to
retain. possession of the entire property, i.e., land Khasra No. 259/1 including the Ginning
Factory and structures standing on the land. it was directed that if Phoolchand, committed
default Nathulal may claim possession of the entire property with mesne profits at the rate of
Rs. 3,000/- per annum from the date he was out of possession and till the date on which
possession was delivered. The cross-objections filed by Nathulal relating to mesne profits were
disposed of in the light of the directions given in the decree. With certificate granted by the
High Court this appeal has been preferred by Nathulal.

In the view of the Trial Court Phoolchand was unable to procure the amount of Rs. 21,000/-
which he had agreed to pay on or before May 7, 1951 and on that account he had com- mitted
breach of the contract. The High Court held that Nathulal was not guilty of breach of contract,
for, Phoolchand had arranged with a Bank to borrow upto Rs. 75,000/'-, when needed by him,
and Phoolchand had on that account sufficient resources at his disposal to enable him to pay
the amount due. The Trial Court and the High Court have held that Phoolchand failed to pay the
amount on or before May 7, 1951. The have also held that lie had not made the tender as
pleaded by him. Under the terms of the agreement Nathulal had undertaken to get the name of
his brother Chittarmal removed from the revenue records and to get his own name entered,
but the lands continued to stand recorded in the name of Chittarmal till October 6, 1952, and
before that date Nathulal rescinded the contract. Again by virtue of (4) of the Madhya Bharat
Land Revenue and Tenancy Act 66 of 1950, Phoolchand not being an agriculturist the land could
not be sold to him without the sanction of the State Government. In the absence of any specific
clause dealing with this matter, a condition that Nathulal will secure the sanction under after
paying- the appropriate fee must be implied in the agreement for it is well-settled that
whereby, statute property is not transferable without the permission of the authority, on
agreement to transfer the property must be deemed subject to the implied condition that the
transferor will obtain the sanction of the authority concerned ans Phoolchand could be called
upon to pay the balance of the price only after Nathulal performed.his part of the contract.
Phoolchand had an outstanding arrangement with his Banker to enable him to draw the
amount needed by him for payment to Nathulal. To prove himself ready and willing a purchaser
has not necessarily to produce the money or to vouch a concluded scheme for financing the
transaction : Bank of India Ltd. & Ors. v. Jamsetji A. H. Chinoy and Messrs. Chinoy and
Company(1).

The High Court proceeded to decide the case largely upon the view that Nathulal committed
breach of contract. But the question whether Nathulal had committed the breach is not of
much significance. Nathulal was the owner of the land : he had executed no conveyance in
favour of Phoolchand in the land or the factory. Nathulal had sued for possession relying upon
his and Phoolchand could defeat that claim if lie established his defence of part-performance
under of the Transfer of Property Act. The argument raised by counsel for Nathulal, that by
virtue of s. 70(8) of the Madhya Bharat Land Revenue and Tenancy Act, the plea of part
performance is not available to a person put (1) L.R. 57 I.A.333 (2) [1964] 2 S.C.R. 495. (3) L.R.
77 I.A. 76, 91.

in possession of the property under a contract of sale, has, in our judgment, no force. provides :

"No sale under this section shall be deemed to be valid until the sale deed effecting such a sale
has been registered in accordance with the law of registration in force for the time being".
But this clause only requires that not only the conditions prescribed by , but registration of sale
deed in accordance with the law of registration for the time being in force is a condition
required to be complied with before a sale is deemed valid. There is no sale in the present case,
and Phoolchand is not relying upon any sale. He is relying upon a contract of sale and equity
which he may set up to defend his possession against the claim made by Nathulal. To the
making of such a claim, relying upon the doctrine of part performance in  of the Transfer of
Property Act, there is nothing in s. 70(8) of the Madhya Bharat Land Revenue and Tenancy Act
66 of 1950 which may operate as a bar. The conditions necessary for making out the defence of
part performance to an action in ejectment by the owner are , (1) that the transferor has
contracted to transfer for consideration any immoveable property by writing signed by him or
on his behalf from which the terms necessary to constitute the transfer can be ascertained with
reasonable certainty:
(2) that the transferee has, in part performance of the contract,, taken possession of the.
property or any part thereof, or the transferee, being already in possession continues in
possession in part performance of the contract;
(3) that the transferee has done some act in furtherance of the contract; and (4) that the
transferee has performed or is willing to perform his part of the contract.

If these conditions are fulfilled then notwithstanding that the contract, though required to be
registered, has not been registered, or, where there is an instrument of transfer, that the
transfer has not been completed in the manner prescribed therefore by the law for the time
being in force, the transferor or any person claiming under him is debarred from enforcing
against the transferee any right in respect of the property of which the transferee has taken or
continued in possession, other than a right expressly provided by the terms of the contract.
There is in this case a contract to transfer for consideration immoveable property by writing
signed by Nathulal from which the terms necessary to, constitute 'the transfer can be
ascertained with reasonable. certainty.

Nathulal had expressly undertaken to have the revenue records rectified by securing the
deletion of Chittarmal's name, and it was an implied condition of the contract that Nathulal will
secure the sanction of the Collector to the transfer under (4) of the Madhya Bharat Land
Revenue and Tenancy Act 66 of 1950. The first condition was not fulfilled till October 6, 1952
and the second condition was never fulfilled. We are unable to agree with Mr. Shroff that the
repeal of the 66 of 1950 by the Madhya Pradesh Land Revenue Code, 1959, has retrospective
operation.

In considering whether a person is willing to perform his part of the contract the sequence in
which the obligations under a contract are to be performed must be taken into account. The
argument raised by Mr. Shroff that Nathulal was bound to perform the two conditions only
after the amount of Rs. 21,000/was paid is plainly contrary to the terms of the agreement. By
virtue ofof the Transfer of Property Act the chapters and sections of the which relate to
contracts are to be taken as part of the , 1872. If, therefore. tinder the terms, of the contract
the obligations of the parties have to be performed in a certain sequence, one of the parties to
the contract cannot require compliance with the obligations by the other party without in the
first instance performing his own part of the contract which in the sequence of obligations is
performable by him earlier. In view of the arrangement made by Phoolchand it was clear that
he had at all relevant times made necessary arrangements for paying the amount due, but so
long as Nathulal did not carry out his part of the contract, Phoolchand could not be called upon
to pay the balance of the price. It must, therefore, be held that Phoolchand was at all relevant
times willing to carry out his part. of the contract.

The appeal fails and is dismissed with cost. Appeal dismissed.

Huda vs Darshan Kumar on 16 July, 2010

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA

STATE CONSUMER
DISPUTES REDRESSAL
COMMISSION HARYANA
PANCHKULA

First
Appeal No.674 of 2006

Date
of Institution: 09.03.2008

Date
of Decision: 16.07.2010

1. The Haryana Urban Development Authority,

through its Chief Administrator, Sector- 6, Panchkula, Haryana.

2. The Estate Officer, HUDA, Sirsa.

..Appellants/Opp. Parties Versus

1. Darshan Kumar son of Shri Jethu Ram,

2. Madan Lal son of Shri Tulsi Ram,
3. Darshana Devi wife of Darshan Kumar,

All residents of C/o Madan Lal Patwari,

Bhagat Singh Colony, Barnala Road,
Sirsa.
.....Respondents/Complainants

BEFORE:
Honble
Mr.Justice R.S.Madan, President.
Sh.Diwan
Singh Chauhan, Member.

For the Parties: Mr.Sikender Bakshi Advocate for the

appellants.

None
for the respondents.

ORDER

JUSTICE R.S.MADAN PRESIDENT:

 Challenge in this appeal is to the order dated 03.02.2006 passed by District Consumer Disputes
Redressal Forum, Sirsa whereby while accepting the complaint of the respondents-
complainants, following relief was granted:-

Hence, we direct the respondents to pay interest on the total sale price deposited by the
complainants i.e. Rs.4,84,000/- w.e.f. 15.7.1996 to 15.7.2003 i.e. the date of issuance of fresh
offer of possession after removing the electric wires passing over the plot in question @ 9% per
annum. We further direct the respondents to get the sale deed executed in favour of the
complainants within a period of 6 weeks from the date of present order. We further direct the
respondents to implement the present order within a period of six weeks failing which the
complainant shall be entitled to recover the aforesaid amount of interest with the amount of
compensation of Rs.10,000/- on account of physical and mental harassment etc. with costs of
proceedings to the tune of Rs.2500/- We order accordingly. No order as to costs at this stage.

 It is admitted case of the parties that respondents-complainants have allotted booth site
No.18-P measuring 46.32 sq. meters situated at Old Bus Stand Sirsa vide memo No.961 dated
2.4.1990 for a total price of Rs.484000/-. The complainants paid the entire instalments to the
opposite parties. The offer of possession was issued by the opposite parties vide memo No.283
dated 3.2.1992. The grievance of the complainants before the District Forum was that the offer
of possession issued by the opposite parties was meaningless as electric wire were passing over
the plot due to which the complainants could not raise construction over the plot in question.
Thus, attributing deficiency in service and unfair trade practice to the opposite parties, the
complainant invoked the jurisdiction of the District Forum.

Upon notice, the opposite parties appeared and contested the complaint. While denying the
version of the complainant, it was stated that possession of the shop site in question was
delivered to the complainant on 03.02.1992. The existence of electric pole and wire over the
plot is admitted but the same was removed on 29.4.2003. After removing the electric pole and
wire fresh offer of possession was issued to the complainants vide letter No.5794 dated
15.7.2003. It is further submitted that the complainants have not deposit the outstanding
arrears to the opposite parties and thus a memo bearing No.10030 dated 12.11.2003 was
issued to the complainants for the deposit of outstanding arrears, It was further stated that as
the complainants had purchased the booth site in an open auction on as and where basis, they
could not be termed as a Consumer. It was prayed that complaint be dismissed.

On appraisal of the pleadings of the parties and evidence adduced on record the District Forum
accepted the complaint and granted relief as noticed above. Hence this appeal.

Heard.

At the very outset the question for consideration before us is as to whether the complainants
fall under the definition of Consumer or not?

The Honble Supreme Court in U.T. Chandigarh Administration & anr. Versus Amarjeet Singh &
Ors, (2009) 4 SCC 660 has held that:-

Where there is a public auction without assuring any specific or particular amenities and the
prospective purchaser/lessee participates in the auction after having an opportunity of
examining the site, the bid in the auction is made keeping in view the existing situation position
and condition of the site. If all amenities are available, he would offer a higher amount. If there
are no amenities, of if the site suffers from any disadvantages, he would offer a lesser amount
or may not participate in the auction. Once with open eyes a person participates in an auction,
he cannot therefore be heard to say that he would not pay the balance of the price/premium or
the stipulated interest on the delayed payment or the ground rent, on the ground that the site
suffers from certain disadvantages or on the ground that amenities are not provided with
reference to a public auction of existing sites (as constructed from sites to be formed), the
purchaser/lessee is not a consumer, the owner is not a trader or service provider and the
grievance does not relate to any matter in regard which a complaint can be filed. Therefore, any
grievance by the purchaser/lessee will not give rise to a complaint or consumer dispute and the
fora under the Act will not have jurisdiction to entertain or decide any complaint by the auction
purchaser/lessee against the owner holding the auction of sites.

Undisputedly, the complainants have purchased the booth site in question in an open auction,
therefore, the present case is fully covered by Amarjeet Singhs case (Supra) wherein it has been
made clear that any grievance of the purchaser/lessee who purchases the site in an open
auction cannot be termed as a Consumer dispute and the Consumer Fora have no jurisdiction
to entertain and decide any complaint. Thus, the impugned order under challenge is not
sustainable in the eyes of law and therefore, we do not think it appropriate to go into merits of
the case as the jurisdiction of the Consumer Fora is barred in view of the decision of the Honble
Supreme Court in Amarjeet Singhs case (Supra).

Accordingly this appeal is accepted, the impugned order is set aside and the complaint is
dismissed with liberty to the complainants to approach the Court of competent jurisdiction to
get their grievance redressed in this case on the same cause of action.

However, the complainants would be entitled to the benefit of the provision of  of the
Limitation Act for the period during which proceedings remained pending under the before the
District Forum as well as the State Commission, provided the complainants approaches the
Court of competent jurisdiction/authority within 60 days from the date of passing of this order.

Copy of this order be sent to the parties under postal certificate without any delay.

The statutory amount of Rs.25,000/- deposited by the appellants at the time of filing of the
appeal is ordered to be refunded to the appellants on expiry of period of limitation for filing
revision/appeal, if any, filed in this case.

16th July, 2010 Justice R.S.Madan

President

Diwan Singh Chauhan,

Member