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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 ..... ant and to hand over possession thereof to the appellant within a month from the date of receipt of a copy of this order. - CIVIL APPEAL NO. 1373 OF 2006 - - - Dated:- 2-9-2008 - ALTAMAS KABIR AND MARKANDEY KATJU, JJ. Ravindra Shrivastava, Arun Kumar Beriwal, Kunal Verma, Rajul Shrivastav, Ms. Supriya Jain, Krishan Kumar and Anup Jain for the Appellant. Manika Tripathy Pandey and Rohit Sharma for the Respondent. JUDGMENT Altamas Kabir, J. - The appellant applied for registration in respect of a Category-II flat under the 1985 Sixth Self-Financing Housing Registration Scheme, advertised by the Delhi Development Authority (hereinafter referred to as the "DDA"). As per the scheme, the flats to be constructed on a Multi-storied basis was expected to be ready within a period of two years. In clause 10 of the Scheme, the method of payment has been provided for as follows : "After a person has been allotted a flat he/she would be called upon to make the payments as per the following schedule : 25 per cent (including the amount paid as registration deposit) as initial deposit on allotment/allocation. 20 per cent after six months 25 per cent after nex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had never received any demand letter from the DDA for making payment of the fifth and final instalment. The appellant accordingly, requested the DDA to issue a demand letter indicating the amount of the fifth instalment so that he could take over possession of the flat in question. Subsequently, on 8-5-1998, the appellant received a letter from the DDA dated 22-4-1998, informing him that a demand letter had been issued on 11-9-1996. According to the appellant, the said letter had never been tendered to him. In fact, in the letter dated 22-4-1998, sent by DDA it was stated that another demand letter was in process and would be issued in due course. 6. It is the case of the appellant that on 6-5-1998, he paid the fifth and final instalment to the DDA by a pay-order for a sum of Rs. 1,63,512, being the amount mentioned in the show-cause notice dated 10-9-1997, even prior to the receipt of the DDA s letter dated 22-4-1998 on 8-5-1998. 7. Thereafter, on 26-5-1998, the appellant filed a complaint against the respondents herein under section 36(B) and section 12A of the Monopolies and Restrictive Trade Practices Act, 1969 (hereinafter referred to as the "MRTP Act, 1969") before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut that while the demand in respect of the fifth and final instalment was Rs. 1,63,512, in the fresh demand letter for the fifth and final instalment the net amount payable was shown to be Rs. 4,43,336. 10. Mr. Srivastava submitted that since the demand notice for the fifth and final instalment had not been received by the appellant, the question of paying the amount in the demand notice within a stipulated time did not arise. He submitted that it is only after the show-cause notice was received, that the appellant became aware of the demand of Rs. 1,63,512 which was immediately deposited by the appellant. It is only thereafter, that the appellant was informed that he would be required to pay not the amount as mentioned in the show-cause notice, but a further sum of Rs. 4,43,336on account of the fresh allotment of the flat made in his favour. Mr. Srivastava submitted that the question of fresh allotment did not arise having regard to the fact that even in the show-cause notice dated 10-9-1997, it had been indicated that cause should be shown as to why the allotment should not be cancelled for breach of the terms and conditions of such allegations. In the show-cause notice it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on clause 4 of the Scheme which indicates the procedure to be followed in the matter of allotment of flats and the same is reproduced hereinbelow : "The estimated cost of the flat as given in this letter is provisional and is subject to revision on the completion of the flat. Any price difference between the estimated cost and the cost as it works out on completion as per costing formula in vogue would have to be paid alongwith the fifth and final instalment. No definite time by which the construction, of the flats will be completed can be indicted at this stage. Normally it takes 2 years period for completion of the project. Sometimes, due to unforeseeable reasons completion of project may get delayed. For delay beyond 30th month upto 36th month till the issue of demand letter for fifth and final instalment the allottee shall be paid interest at the rate of 7 per cent per annum and beyond 36th month interest will be paid 10 per cent on his/her deposit. The specific flat number will be allotted through draw of lots. The date and time for the draw will be announced through the leading newspapers. The demand letters for fifth and final instalment indicating the number of flat a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fifth and final instalment had been duly sent to the appellant by Registered Post with acknowledgement due at the address given by him, there would be a statutory presumption under section 114( f ) of the Evidence Act that the demand notice had been duly served on the appellant. Ms. Tripathy urged that the Commission rightly dealt with the matter and no ground had been made out on behalf of the appellant for interference with the same. 17. As will be evident from what has been mentioned hereinbefore, the real controversy in this appeal appears to be whether the demand letter dated 10-9-1996, for payment of the fifth and final instalment had, in fact, been received by the appellant and as to whether non-compliance with the same resulted in termination of the appellant s allotment and whether the restoration of such allotment on a representation made by the appellant would amount to a fresh or new allotment. 18. As submitted by Ms. Tripathy, except for the statutory presumption under section 114( f ) of the Evidence Act, there is no other material to suggest that the demand notice had actually been received by the appellant. 19. The assertion of service of notice on accou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as indicated by Ms. Tripathy, namely, automatic termination and fresh allotment, cannot follow. In any event, in our view, the restoration of the allotment did not amount to a fresh allotment on the basis of which the fresh demand notice could have been issued. 22. Having regard to what has been stated hereinabove, in our view the 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. 23. The appeal is, therefore, allowed. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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