2008 (9) TMI 548 - SC - Companies Law

Whether alleged cancellation of the appellant s original allotment could on revival be said to be a fresh allotment which entailed payment of fresh allotment charges? Whether the restoration of such allotment on a representation made by the appellant would amount to a fresh or new allotment? Held that - Appeal allowed. MRTP Commission erred in law in shifting the onus of proof of service of the demand notice on the appellant and in discharging the notice of inquiry and vacating the interim order issued under section 12A of the M.R.T.P. Act. The allegation of unfair trade practice on the part of the respondent authority stands established. The decision of the Commission is, therefore, liable to be set aside. The judgment of the MRTP Commission impugned in this Appeal is set aside. The respondents are directed to accept the sum of Rs. 1,63,512, which had been deposited by the appellant prior to receipt of the demand notice, together with interest, if any, accrued thereupon, in full and final settlement of their dues in respect of the flat allotted to the appellant and to hand over possession thereof to the appellant within a month from the date of receipt of a copy of this order.

Issues Involved:
1. Payment schedule and compliance with the fifth and final installment.
2. Alleged non-receipt of the demand letter for the fifth installment.
3. Automatic cancellation of allotment and the concept of fresh allotment.
4. Allegations of unfair trade practices under the MRTP Act.
5. Onus of proof regarding the service of the demand notice.

Issue-wise Detailed Analysis:

1. Payment Schedule and Compliance with the Fifth and Final Installment:
The appellant applied for a Category-II flat under the DDA's 1985 Sixth Self-Financing Housing Registration Scheme. The payment schedule required 25% as an initial deposit, followed by 20%, 25%, 20%, and 10% payments at specified intervals. The appellant made the first four payments without issue. However, the problem arose with the fifth and final installment, which was to be demanded separately and could include cost escalation.

2. Alleged Non-receipt of the Demand Letter for the Fifth Installment:
The appellant claimed non-receipt of the demand letter for the fifth installment. Despite paying the first four installments, the appellant did not pay the fifth installment within 15 days of the allotment letter, leading to a show-cause notice from the DDA. The appellant responded, stating he had not received the demand letter, and requested a fresh demand letter. The DDA later informed the appellant that a demand letter had been issued on 11-9-1996, which the appellant claimed never reached him.

3. Automatic Cancellation of Allotment and the Concept of Fresh Allotment:
The appellant argued that the cancellation of the initial allotment and the subsequent restoration did not amount to a fresh allotment, which would entail additional charges. The appellant paid the amount mentioned in the show-cause notice before receiving the new demand letter. The DDA, however, considered the restoration a fresh allotment, demanding a higher amount of Rs. 4,43,336 instead of Rs. 1,63,512.

4. Allegations of Unfair Trade Practices under the MRTP Act:
The appellant filed a complaint under sections 36(B) and 12A of the MRTP Act, alleging unfair trade practices by the DDA. The MRTP Commission initially directed the DDA not to hand over possession of the flat to anyone else until the inquiry concluded. However, the Commission later discharged the notice of inquiry, concluding that the allegations of unfair trade practices were not proven.

5. Onus of Proof Regarding the Service of the Demand Notice:
The primary controversy was whether the demand letter dated 10-9-1996 was received by the appellant. The DDA relied on the statutory presumption under section 114(f) of the Evidence Act, which the appellant denied. The Supreme Court held that the onus of proving service shifted back to the DDA once the appellant denied receipt. The DDA failed to provide additional evidence to support the presumption of service, leading to the conclusion that the demand notice was not served.

Judgment:
The Supreme Court found that the MRTP Commission erred in law by shifting the onus of proof of service to the appellant. The Court concluded that the restoration of the allotment did not amount to a fresh allotment and that the DDA's actions constituted unfair trade practices. The appeal was allowed, the MRTP Commission's judgment was set aside, and the DDA was directed to accept the sum of Rs. 1,63,512 deposited by the appellant in full settlement and hand over possession of the flat within a month. Each party was ordered to bear its own costs.

← Previous Next →