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TMI Blog2013 (5) TMI 214X X X X Extracts X X X X X X X X Extracts X X X X ..... t would be highly unjust and unfair to ask the respondent who though has purchased the leasehold rights at the rates of the year 1983-85, to pay unearned increase to the appellant DDA of the year 2004 or of today. Therefore there is no reason to interfere with the order of the learned Company Judge, insofar. However, we are of the opinion that the interest at the rate of 9% per annum awarded by the learned Company Judge, on the arrears of unearned increase, is on the lower side. All the facts and circumstances and the fact that the appellant DDA itself generally charges interest at the rate of 12% per annum, therefore interest of justice would be served if the rate of interest is enhanced from 9% per annum to 12% per annum. We thus, while dismissing this appeal, direct the respondent to within four weeks hereof deposit with the appellant DDA the amount due towards such additional interest for the period from 03.07.1985 to 31.01.2005. - CO. APP. No. 39 of 2004 - - - Dated:- 27-2-2013 - Rajiv Sahai Endlaw, J. For the Appellant Ms. Sangeeta Chandra. For the Respondent V.N. Kaura, Ms. Pramjeet Benipal and Sumit Singh Benipal. ORDER:- 1. This appeal under Section 48 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shine would be responsible for the payment of unearned increase to the appellant DDA for transfer of the leasehold rights in their favour. 6. Notice was accordingly sent by the learned Company Judge to the appellant DDA. The counsel for the appellant DDA appeared before the learned Company Judge on 21.05.1985 and following order was passed: "A draft of settlement deed has been drawn. It is still to be examined by the O.L. to whom a copy has been furnished. According to the order of 27/1/82 in CA 358/80, DDA appears to be willing to favourably consider the transfer of land in favour of the company in liquidation on receiving the necessary unearned increase etc., subsequently, some quantification was also done by the DDA but the counsel for the DDA explains that DDA never made any commitment to effect the transfer. It was only willing to consider, the question of transfer on appropriate terms having regard to the various legal requirements. It appears that before the settlement can be arrived at between the parties, it would be necessary for the Aeroshine to approach the DDA with a view to have the transfer effected in accordance with the requirements of the DDA. It would perhaps ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no application for permission to sell the leasehold rights had been made to the appellant DDA; that the perpetual lessee is liable to pay unearned increase at such rates as are prevalent on the date of grant of approval for transfer; no such approval had been granted till then and the demand for unearned increase was thus provisional with the final amount due to be calculated at the rate prevalent at the time of approval as and when the said approval was asked for. It was further stated that such approval could not be given till the misuser of the lease and damages/compounding charges, as applicable were paid. It was further informed that as on 31.03.1996, the unearned increase payable was in the sum of Rs. 1,02,98,379/-. 15. The respondent M/s Aeroshine on the contrary contended that the appellant DDA was taken into confidence in the matter from the beginning and the compromise between the respondent M/s Aeroshine and OL was on the basis of unearned increase then got worked out from the appellant DDA and therefore appellant DDA was bound by the same. It was further their case that 50% unearned increase had to be calculated on Rs. 7,42,000/- which was the total consideration giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant DDA was also held entitled to interest at the rate of 9% per annum from 02.07.1985 till the date of payment. 17. Notice of this appeal was issued. Vide subsequent order dated 13.12.2004, the appellant DDA was directed to calculate the unearned increase on the basis of application dated 02.07.1985, without prejudice to its rights and contentions and to make a demand in accordance with the judgment of the learned Single Judge on the respondent M/s Aeroshine and the respondent M/s Aeroshine was directed to deposit the amount with the appellant DDA. The appeal was admitted for hearing on 07.03.2006. The counsels have been heard. 18. The counsel for the appellant DDA has drawn our attention to the affidavit along with which a copy of the application dated 02.07.1985 was filed. The said affidavit dated 08.07.2002 is of one Mr. Avtar Singh of M/s Amar Singh Co., partner of the respondent M/s Aeroshine, deposing that the said plot belonged to one M/s Amar Singh Co. who sold the said plot inter alia to the respondent M/s Aeroshine who constructed a building thereon; that M/s Amar Singh Co. had made an application to the appellant DDA for determination of unearned increase an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oresaid in this appeal, unearned increase of approximately Rs. 33,62,115/- inclusive of interest has been paid to the appellant DDA. The counsel has further argued that there is no basis whatsoever for the appellant DDA to demand unearned increase at the pre-determined rates of several years after the transfer of the property. 21. The counsel for the appellant DDA in rejoinder has relied on La Medica Manufacturing (P.) Ltd. v. Delhi Development Authority [1998] 73 DLT 362 in para 19 of which, the Division Bench has held that an application can be said to be complete in all respects only when it is substantially in the form if any prescribed and gives all the particulars requisite for granting the permission. She has argued that the application dated 02.07.1985 even if were to be held to be submitted, cannot be said to be complete in all respects. 22. We have bestowed our consideration on the controversy. It is deemed appropriate to set out herein below the application dated 02.07.1985 being the only application on record: "The Deputy Director, Delhi Development Authority, Old Scheme Branch, Vikas Sadan, 'A' Block, NEW DELHI. REG:- C.P.78' of 1978 Official Liquidator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e date of the grant of the lease and on the date of transfer. The requirement thus stands satisfied as soon as the appellant DDA is informed of the intended transfer. In the present case, the transfer is under the aegis of the Company Judge of this Court. The counsel for the appellant DDA has throughout been involved in the same. The appellant DDA was thus fully conscious that the transfer of the leasehold rights had been approved by this Court and the respondent M/s Aeroshine had taken over the responsibility to pay the unearned increase and for which purpose the appellant DDA had been called to the Court. In our opinion, in these circumstances, it matters not as to whether a well drafted application seeking permission for transfer was filed or not. The dealings as aforesaid were not in the office of the appellant DDA but before the Court in the presence of the counsels who well understood the purport of the proceedings; the counsel for the appellant DDA well understood the role of the DDA in the said transfer. The appellant DDA is thus estopped from arguing that no application was made to it till 2004 or even till now. If such arguments were to be accepted, it would make the pend ..... X X X X Extracts X X X X X X X X Extracts X X X X
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