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TMI Blog2008 (9) TMI 548X X X X Extracts X X X X X X X X Extracts X X X X ..... ter next six months 20 per cent after next six months 10 per cent when required to take over possession. The Demand-cum-allotment letter, whenever issued to the allottees will indicate the prescribed dates by which payments shall have to be made in regard to the first four instalments as mentioned above. For the fifth and final instalment, a fresh demand letter will be issued separately and which may also include the possible increase in the cost of the flat." 2. As far as the first four instalments are concerned, there is no difficulty since such payments had undisputedly been made by the appellant. The problem arose in connection with the payment of the fifth and final instalment in respect of which a fresh demand letter was to be separately issued, which could include a possible escalation towards the cost of the flat. 3. Clause 13 of the Scheme provided that the allotment of specific flats would be made on the basis of "draw of lots" to be held by the DDA when the flats were completed. It was also stipulated that all persons registered under the Scheme, irrespective of the date on which they were registered, would be treated at par with each other. 4. Admittedly, the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Restrictive Trade Practices Commission alleging unfair trade practice by the DDA on various grounds. The appellant prayed for registration of the sale deed by the DDA in his favour and also for compensation of Rs. 2 lakhs. 8. While disposing of the appellant's application under section 12A of the MRTP Act, the Commission directed the respondent not to hand over the possession of the flat in question to any one and not to dispose of the same in any way until the conclusion of the inquiry under section 36(B) of the Act. On an interpretation of clause 4 of the Self-Financing Scheme, the Commission came to the conclusion that the allegations of unfair trade practice on the part of the respondent authority, had not been proved. The notice of inquiry was, therefore, discharged and the interim order issued under section 12A of the Act was vacated. The present appeal is directed against the aforesaid order of the Commission. 9. Mr. R. Srivastava, learned senior advocate appearing for the appellant, submitted that the Commission had erred in upholding the contention of the Respondent that since the initial allotment had been cancelled, even the revival of the earlier proposal to make ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in case the reply was not to the satisfaction of the DDA, the allotment would be cancelled and the amount of penalty and interest charges would be adjusted against the deposit made by the appellant and the balance money would be refunded to him. Mr. Srivastava pointed out that without termination of the appellant's allotment of 22-4-1997, the DDA wrote to the appellant as follows :- "DELHI DEVELOPMENT AUTHORITY F. 177(691)/91/SFS/11/4322-4-1998 From : P.L. Arora, Accounts Officer, SFS-I, D- Block, 3rd Floor, Vikas Sadan. To Sh. Vishwanath Bharat, H.No. 539, Gali No. 5-A Gobind Puri (Kalkaji) New Delhi-19 Sub.: For issue of the 5th & final demand letter. Please refer to your letter dated 9-2-1998 and subsequent letter dated 12-2-1998 on the subject cited above. In the connection it is informed that 5th and final demand letter was issued to you vide this office letter dated 11-9-1996 through Regd. Post RL 2911 which has not been returned undelivered to this office so far. However the matter for issue of another demand letter is in process and will be issued in due course. Sd. (P.L. Arora) Sr. Accounts Officer/SFS/II" 11. Mr. Srivastava pointed out that even in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d formalities to be completed for taking over the possession will be sent by RAD post to the allottee at the address on record with the DDA within one month from the date of draw of letter for allotment of specific flat number. Failure to furnish all the requisite documents within a period of 120 days from the date of issue of the demand letter for fifth and final instalment will result in automatic cancellation of the allotment." 14. Ms. Tripathy submitted that the allotment of flats by the DDA was to be done in two phases. In the first phase the estimated cost of the flat is given on a provisional basis and subject to revision on the completion of the flat. No definite time period was indicated but it has been mentioned that it takes about 2 years to complete the project, which period could also stretch upto 36 months. For delay beyond the 30th upto the 36th month, till the issue of demand letter for the fifth and final instalment, the allottee shall be paid interest at the rate of 7 per cent per annum and beyond 36th months interest will be paid at the rate of 10 per cent on the deposit of the applicant. In the second phase, on the basis of a 'draw of lots' a specific flat numb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of proving service shifted back to the respondent. The respondent DDA has not led any other evidence in support of the presumption of service. In such circumstances, it has to be held that such service had not been effected. Therefore, when on the appellant's application for restoration of the allotment, the allotment was restored, the only conclusion that can be arrived at is that the earlier allotment continued as no cancellation and/or termination had, in fact, taken place in terms of clause 4 of the Scheme in question. 20. As far as the MRTP Commission is concerned, there is no definite finding on the question of service of the demand notice. On the other hand, the Commission presumed that the appellant must have had knowledge of the allotment which had been widely publicised in leading newspapers. According to the Commission, it was for the appellant to have made inquiries relating to completion of the construction and it should have waited for a demand notice to have been sent to him. In our view, the Commission also erred in placing the onus of proof of service of the demand notice on the appellant, since except for denial there is nothing else that the appellant could ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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