9911796707
TMI Blog2004 (8) TMI 731X X X X Extracts X X X X X X X X Extracts X X X X ..... the value of the property was much more and, therefore, the said confirmation order be recalled. The company/OL and the respondents settled the matter during the pendency of these proceedings. However, incidental issue which arose was regarding the unearned increase to be payable to the DDA and the war is now waged between the purchaser and the DDA. Let us take stock of the events which took place from time to time to appreciate the problem. Vide order dated 18.8.1983 passed in the winding up proceedings, this court sanctioned the compromise/settlement in respect of Plot No.16-A, Rani Jhansi Road, Motia Khan, New Delhi. It transpires that the original owners of the plot were respondents 1 to 4 and the said owners purportedly entered into an agreement to sell this plot to the M/s.Aero Shine. After winding up order was passed the company (in liquidation) (hereinafter referred to as `the Company') filed an application under Section 446 of the Companies Act being CA.358/80 for specific performance of the said agreement to sell. However, during the pendency of these proceedings, M/s.Aero Shine made an application i.e. CA.161/1983 to settle the dispute on payment of a sum of &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 be necessary for Aeroshine to associate the surviving partners of Amar Singh and Co. in pursuing the matter with the DDA. Aeroshine may therefore, take the necessary steps in that behalf. The matters be listed for further directions on July 16, 1985. Copy of the order be furnished to the counsel for the parties, including DDA.'' M/s. Aero Shine claims that pursuant to the aforesaid order, it submitted an application with the DDA for registration of lease deed. Case was adjourned thereafter from time to time to await the consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be the unearned increase for the purpose of registration of the lease deed in favour of M/s.Aeroshine in terms of Compromise application on a total consideration of ₹ 7,42,500/-. On this aspect, affidavit has not been filed. If the stand of the DDA is that there is misuse, specific, details of the misuse has to be brought to the notice of this Hon'ble Court, otherwise simple query was made with DDA on 29.10.90. Let the affidavit be filed before the date fixed''. After the affidavit was filed by the DDA pursuant to the aforesaid order, M/s.Aero Shine took the stand that the amount now claimed by the DDA is exorbitant and it wanted to file the objections. These objections have been filed. The question, therefore, which requires determination is as to how much amount of unearned increase is payable to the DDA by M/s.Aero Shine. There may be doubt as to whether this question needs to be adjudicated in this application. However, keeping in view that for last numbers of years, various orders are passed and the issue is pending for last several years, to give quietus to the problem, the parties agreed to make submission on merits and the DDA has not taken up any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... because of the reason stated in para-6 of affidavit filed in January 1998 (at page 161of the Paper Book) which reads as under: '' no permission till today has been obtained from the Authority for such transfer. Hence, the final amount that falls due to be paid in such events, cannot be communicated. No application seeking permission to sell the lease deed hold right has been aide to the Delhi Development Authority and hence the question of granting of any such approval does not arise. Such approval has to be granted by the Competent Authority and the same cannot be given till the misuser is stopped and damages/compounding charges as applicable are paid. The lessee has to apply for conversion or mutation in the concerned name and have also to pay for regularization of misuse. The calculation showed in the affidavit filed on behalf of Delhi Development Authority was a provisional calculation taking into account the hypothetical case, wherein the regularization of misuser and subsequent approval for transfer of lease hold right had been granted in the year 1996. The said amount of ₹ 1,02,98,379/- was with respect to only unearned increase and lessee was liable to pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng and the compromise was arrived at between the parties, namely, respondents 1 to 4/Aero Shine and the OL on that basis, after getting unearned increase worked out from the DDA. Therefore, the DDA was bound by the same. He further submitted that since M/s.Aero Shine agreed to make payment of ₹ 4,50,000/- to the company in full and final settlement of company's rights, unearned increase be calculated and in any case on ₹ 7,42,000/- which was total consideration, given by Aero Shine to the company after adding interest. He further submitted that even if unearned increase is to be calculated on the date of application, in the present case, the application was submitted to the DDA much prior to 16.8.1985 and, therefore, rates prevailing on that date may be taken as the basis for calculating of unearned increase. There is no doubt about the proposition that unearned increase is to be calculated as on the date when application is made. However, as per the DDA, no application is made till date and on the other hand M/s.Aero Shine maintains that such an application was made. We have already reproduced order dated 6.8.1985 in which it is, inter alia, recorded that '& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Order dated 21.5.1985 also mandated Aero Shine to approach the DDA for this purpose as recording of settlement depended on that inasmuch as the court observed that: '' It appears that before the settlement can be arrived at between the parties, it would be necessary for the Aero Shine to approach the DDA with a view to have the transfer effected in accordance with the requirements of the DDA. It would perhaps be necessary for Aero Shine to associate the surviving partners of Amar Singh and Co. in pursuing the matter with the DDA. Aero Shine may, therefore, take the necessary steps in that behalf''. The applicant, therefore, knew that it was necessary for it to move an application through Amar Singh and Co. before the settlement could be arrived at and as a prudent person, would have taken such an action. C. Court proceedings thereafter indicate that such an application had been moved. On the next date i.e. 23.7.1985 counsel for Aero Shine made a statement before the Court that such an application had already been made to the DDA. Immediately thereafter on the very next date i.e. on 6.8.1985 it was recorded that DDA had not considered that application. Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication. The judgment cited by learned counsel for the DDA is of no avail as that is the order based on compromise between the parties and does not lay down any proposition of law. In fact, there is no such discussion either. Be that as it may, even the case of DDA is that the pre-determined rate should be on the date of application. It cannot be on the date when the orders are passed because if the DDA does not pass any orders that would not mean that because of such delay applicant would suffer. This application is, therefore, disposed of with the following directions: The respondent-DDA shall calculate unearned increase on the basis of application dated 2.7.1985, a copy whereof is furnished by the applicant along with affidavit dated 8.8.2002 and taking into consideration the pre-fixed market rate as on that date, and not on the date of approval of mutation by the Competent Authority, in the peculiar facts and circumstances of this case. The DDA shall, however, be entitled to interest at the rate of 9% p.a. on the said unearned increase from 2.7.1985 till the payment is made by the applicant. Necessary calculation shall be made within a period of four weeks and intimated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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