{"id":199297,"date":"2008-09-02T00:00:00","date_gmt":"2008-09-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/v-n-bharat-vs-d-d-a-anr-on-2-september-2008"},"modified":"2017-08-08T23:01:04","modified_gmt":"2017-08-08T17:31:04","slug":"v-n-bharat-vs-d-d-a-anr-on-2-september-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/v-n-bharat-vs-d-d-a-anr-on-2-september-2008","title":{"rendered":"V.N. Bharat vs D.D.A. & Anr on 2 September, 2008"},"content":{"rendered":"
Supreme Court of India<\/div>\n
V.N. Bharat vs D.D.A. & Anr on 2 September, 2008<\/div>\n
Author: A Kabir<\/div>\n
Bench: Altamas Kabir, Markandey Katju<\/div>\n
                                                            1\n\n\n            SUPREME COURT OF INDIA\n         CIVIL APPELLATE JURISDICTION\n         CIVIL APPEAL NO. 1373 OF 2006\n\n\n\nV.N. Bharat                            ...Appellant\n\n\nVs.\n\n\nD.D.A. & Another                     ...Respondents\n\n\n\n                   J U D G M E N T\n<\/pre>\n
ALTAMAS KABIR,J.\n<\/p>\n
                                                            2<\/span><\/p>\n
1.   The     appellant    applied    for    registration        in<\/p>\n
     respect of a Category-II flat under the 1985<\/p>\n
     Sixth     Self-Financing       Housing       Registration<\/p>\n
     Scheme, advertised by the Delhi Development<\/p>\n
     Authority     (hereinafter      referred     to   as       the<\/p>\n
     “DDA”).     As per the scheme, the flats to be<\/p>\n
     constructed     on    a   Multi-storied       basis        was<\/p>\n
     expected to be ready within a period of two<\/p>\n
     years.     In clause 10 of the Scheme, the method<\/p>\n
     of payment has been provided for as follows:-<\/p>\n
     “After a person has been allotted a
\n     flat he\/she would be called upon to
\n     make the payments as per the following
\n     schedule:\n<\/p>\n
     25% (including the amount paid as
\n     registration    deposit)   as    initial
\n     deposit on allotment\/allocation.<\/p>\n
\n     20% after six months<\/p>\n
     25% after next six months<\/p>\n
     20% after next six months<\/p>\n
     10%   when     required        to     take    over
\n     possession.\n<\/p>\n
     The     Demand-cum-allotment    letter,
\n     whenever issued to the allottees will
\n     indicate the prescribed dates by which
\n     payments shall have to be made in
\n     regard to the first four instalments as
\n                                                                 3<\/span><\/p>\n
     mentioned above.     For the fifth and
\n     final   installment,   a  fresh   demand
\n     letter will be issued separately and
\n     which may also include the possible
\n     increase in the cost of the flat.”<\/p>\n
2.   As   far   as     the    first     four    installments         are<\/p>\n
     concerned, there is no difficulty since such<\/p>\n
     payments     had      undisputedly        been    made     by   the<\/p>\n
     appellant.            The problem arose in connection<\/p>\n
     with   the       payment      of   the     fifth     and    final<\/p>\n
     instalment in respect of which a fresh demand<\/p>\n
     letter     was     to    be   separately         issued,    which<\/p>\n
     could include a possible escalation towards<\/p>\n
     the cost of the flat.\n<\/p>\n<\/p>\n
3.   Clause     13    of     the   Scheme      provided    that      the<\/p>\n
     allotment of specific flats would be made on<\/p>\n
     the basis of “draw of lots” to be held by the<\/p>\n
     DDA when the flats were completed.                         It was<\/p>\n
     also stipulated that all persons registered<\/p>\n
     under the Scheme, irrespective of the date on<\/p>\n
     which they were registered, would be treated<\/p>\n
     at par with each other.\n<\/p>\n
                                                                    4<\/span><\/p>\n
4.   Admittedly,       the     appellant         had     applied        for<\/p>\n
     registration        of    a         semi-finished        flat       on<\/p>\n
     payment     of    Rs.10,000\/-          towards      registration<\/p>\n
     deposit     in    respect       of    the    same.         On       6th<\/p>\n
     December, 1991 the appellant was allotted a<\/p>\n
     flat   at   Dwarka,       Sector       3,    Pocket-II,        First<\/p>\n
     Floor in Category-II and allotment letter was<\/p>\n
     also   issued       to    him        by     the    DDA    on       31st<\/p>\n
     December,        1991,    wherein          the     schedule        for<\/p>\n
     payment     of    the    first       four    installments          was<\/p>\n
     given. As indicated hereinabove, between 31st<\/p>\n
     January,     1992       and    20th       October,    1993,        the<\/p>\n
     appellant paid all the four installments in<\/p>\n
     accordance with the demands made by DDA.<\/p>\n
5.   As will appear from the materials on record<\/p>\n
     the    appellant,        despite           being     allotted        a<\/p>\n
     specific flat, did not make payment of the<\/p>\n
     fifth and final instalment within 15 days of<\/p>\n
     the    receipt      of        the     allotment       letter        as<\/p>\n
     stipulated in the terms and conditions of the
\n                                                                      5<\/span><\/p>\n
Self-Financing Scheme. This resulted in the<\/p>\n
issuance of a show-cause notice by the DDA,<\/p>\n
which was received by the appellant on 10th<\/p>\n
September, 1997, asking him to explain as to<\/p>\n
why    he    had       failed     to    make       payment       of       the<\/p>\n
amount       of    Rs.1,63,512\/-             by     31st    December,<\/p>\n
1996, towards the fifth and final installment.<\/p>\n
Without replying to the show-cause notice, the<\/p>\n
appellant         by    a   letter      dated       19th    November,<\/p>\n
1997,       informed        the   DDA       that    he     had        never<\/p>\n
received any demand letter from the DDA for<\/p>\n
making       payment         of       the    fifth         and        final<\/p>\n
installment.                The       appellant       accordingly,<\/p>\n
requested the DDA to issue a demand letter<\/p>\n
indicating the amount of the fifth instalment<\/p>\n
so that he could take over possession of the<\/p>\n
flat in question.                 Subsequently, on 8th May,<\/p>\n
1998, the appellant received a letter from the<\/p>\n
DDA dated 22nd April, 1998, informing him that<\/p>\n
a     demand      letter        had    been        issued        on       11th<\/p>\n
September, 1996.             According to the appellant,<\/p>\n
the said letter had never been tendered to
\n                                                                   6<\/span><\/p>\n
     him.     In fact, in the letter dated 22nd April,<\/p>\n
     1998, sent by DDA it was stated that another<\/p>\n
     demand       letter    was    in   process       and    would     be<\/p>\n
     issued in due course.\n<\/p>\n<\/p>\n
6.   It is the case of the appellant that on 6th<\/p>\n
     May,     1998,    he     paid      the    fifth        and    final<\/p>\n
     installment to the DDA by a pay-order for a<\/p>\n
     sum     of     Rs.1,63,512\/-,            being    the        amount<\/p>\n
     mentioned in the show cause notice dated 10th<\/p>\n
     September, 1997, even prior to the receipt of<\/p>\n
     the DDA’s letter dated 22nd April, 1998 on 8th<\/p>\n
     May, 1998.\n<\/p>\n<\/p>\n
7.   Thereafter, on 26th May, 1998, the appellant<\/p>\n
     filed    a     complaint      against       the    respondents<\/p>\n
     herein under Section 36(B) and Section 12-A of<\/p>\n
     the Monopolies and Restrictive Trade Practices<\/p>\n
     Act,    1969,    (hereinafter        referred          to    as   the<\/p>\n
     “MRTP Act, 1969”) before the Monopolies and<\/p>\n
     Restrictive           Trade        Practices           Commission<\/p>\n
     alleging unfair trade practice by the DDA on
\n                                                          7<\/span><\/p>\n
     various grounds.           The appellant prayed for<\/p>\n
     registration of the sale deed by the DDA in<\/p>\n
     his favour and also for compensation of Rs.2<\/p>\n
     lacs.\n<\/p>\n<\/p>\n
8.   While disposing of the appellant’s application<\/p>\n
     under   Section     12-A    of   the   MRTP   Act,       the<\/p>\n
     Commission directed the respondent not to hand<\/p>\n
     over the possession of the flat in question to<\/p>\n
     any one and not to dispose         of the same in any<\/p>\n
     way until the conclusion of the inquiry under<\/p>\n
     Section 36(B) of the Act. On an interpretation<\/p>\n
     of clause 4 of the Self-Financing Scheme, the<\/p>\n
     Commission   came    to    the   conclusion   that       the<\/p>\n
     allegations of unfair trade practice on the<\/p>\n
     part of the respondent authority, had not been<\/p>\n
     proved.   The notice of inquiry was, therefore,<\/p>\n
     discharged and the interim order issued under<\/p>\n
     Section 12-A of the Act was vacated.                     The<\/p>\n
     present   appeal      is    directed     against         the<\/p>\n
     aforesaid order of the Commission.
\n                                                                         8<\/span><\/p>\n
9.   Mr.    R.   Srivastava,            learned       senior       advocate<\/p>\n
     appearing for the appellant, submitted that<\/p>\n
     the    Commission        had       erred    in     upholding             the<\/p>\n
     contention of the Respondent that since the<\/p>\n
     initial allotment had been cancelled, even the<\/p>\n
     revival of the earlier proposal to make an<\/p>\n
     allotment        in    favour      of    the     appellant       would<\/p>\n
     have to be in the nature of a fresh allotment.<\/p>\n
     Mr. Srivastava submitted that pursuant to the<\/p>\n
     representation           made      by      the    appellant              for<\/p>\n
     restoration of the allotment of the flat in<\/p>\n
     question at the current cost, the DDA issued a<\/p>\n
     letter dated 22nd April, 1998, informing him<\/p>\n
     that    a   fresh       demand       letter       for    the    final<\/p>\n
     installment           would   be    issued        to    him    in       due<\/p>\n
     course.          The    said    representation            was           made<\/p>\n
     after    the     appellant         had     received       the       show-<\/p>\n
     cause notice dated 10th September, 1997, from<\/p>\n
     the DDA. However, the appellant deposited the<\/p>\n
     amount      as    was    mentioned         in     the    show-cause<\/p>\n
     notice      before       receiving          the    fresh        demand<\/p>\n
     letter,     which       was     allegedly         issued       on       16th
\n                                                                 9<\/span><\/p>\n
      June,       1998.        The     definite      case   of       the<\/p>\n
      appellant, however, is that the same was not<\/p>\n
      received by him and was returned undelivered<\/p>\n
      to    the    postal      authorities.        Mr.   Srivastava<\/p>\n
      reiterated the submissions which had been made<\/p>\n
      before the Commission to the effect that the<\/p>\n
      restoration of the allotment, which was said<\/p>\n
      to have been automatically cancelled, being a<\/p>\n
      continuation        of     the     initial    allotment,        it<\/p>\n
      could not be said to be a new allotment which<\/p>\n
      entailed payment of fresh transfer fees.                       Mr.<\/p>\n
      Srivastava pointed out that while the demand<\/p>\n
      in respect of the fifth and final installment<\/p>\n
      was Rs.1,63,512\/-, in the fresh demand letter<\/p>\n
      for the fifth and final installment the net<\/p>\n
      amount payable was shown to be Rs.4,43,336\/-.<\/p>\n
10.   Mr. Srivastava submitted that since the demand<\/p>\n
      notice for the fifth and final installment had<\/p>\n
      not     been    received         by   the    appellant,        the<\/p>\n
      question of paying the amount in the demand<\/p>\n
      notice within a stipulated time did not arise.
\n                                                             10<\/span><\/p>\n
He submitted that it is only after the show-<\/p>\n
cause notice was received, that the appellant<\/p>\n
became aware of the demand of Rs.1,63,512\/-<\/p>\n
which       was      immediately         deposited     by         the<\/p>\n
appellant.          It is only thereafter, that the<\/p>\n
appellant          was    informed       that    he   would        be<\/p>\n
required to pay not the amount as mentioned in<\/p>\n
the show-          cause notice, but a further sum of<\/p>\n
Rs.4,43,336\/-on account of the fresh allotment<\/p>\n
of    the     flat       made     in    his     favour.           Mr.<\/p>\n
Srivastava         submitted       that    the    question         of<\/p>\n
fresh allotment did not arise having regard to<\/p>\n
the fact that even in the show-cause notice<\/p>\n
dated       10th    September,         1997,     it   had     been<\/p>\n
indicated that cause should be shown as to why<\/p>\n
the   allotment          should    not    be     cancelled        for<\/p>\n
breach of the terms and conditions of such<\/p>\n
allegations.             In the show-cause notice it was<\/p>\n
also mentioned that in case the reply was not<\/p>\n
to the satisfaction of the DDA, the allotment<\/p>\n
would be cancelled and the amount of penalty<\/p>\n
and interest charges would be adjusted against
\n                                                        11<\/span><\/p>\n
the    deposit   made    by   the      appellant   and       the<\/p>\n
balance money would be refunded to him.                      Mr.<\/p>\n
Srivastava       pointed         out      that     without<\/p>\n
termination of the appellant’s allotment of<\/p>\n
22nd    April,   1997,     the      DDA   wrote    to        the<\/p>\n
appellant as follows :-\n<\/p>\n<\/p>\n
       “DELHI DEVELOPMENT AUTHORITY<\/p>\n
 F.177(691)\/91\/sfs\/11\/43<\/p>\n
 22.4.1998<\/p>\n
 FROM :\n<\/p>\n
 P.L. Arora,
\n Accounts Officer,
\n SFS- I,
\n D- Block, 3rd Floor,
\n Vikas Sadan.\n<\/p>\n
To<\/p>\n
Sh. Vishwanath Bharat,
\nH.No. 539, Gali No. 5-A
\nGibind Puri (Kalkaji)
\nNew Delhi – 19<\/p>\n
Sub.: For issue of the 5th & final
\ndemand letter<\/p>\n
    Please refer to your letter dated
\n9.2.1998 and subsequent letter dated
\n12.2.1998 on the subject cited above.
\n                                                           12<\/span><\/p>\n
    In the connection it is informed that
\n    5th and final demand letter was issued
\n    to you vide this office letter dated
\n    11.9.96 through Regd. Post RL 2911
\n    which has not been returned undelivered
\n    to this office so far.\n<\/p>\n
        However the matter for issue of
\n    another demand letter is in process and
\n    will be issued in due course.\n<\/p>\n
                                         Sd\/-\n<\/p>\n
                                   (PL Arora)
\n                 Sr. Accounts Officer\/SFS\/II”\n<\/p>\n<\/p>\n
11. Mr. Srivastava pointed out that even in the<\/p>\n
    said letter it had been indicated that a fresh<\/p>\n
    demand    letter    was   in   process     and    would     be<\/p>\n
    issued in due course.            It was urged that the<\/p>\n
    contents of the said letter clearly supports<\/p>\n
    the claim of the appellant that the fifth and<\/p>\n
    final demand was to be made on the basis that<\/p>\n
    it was with reference to the allotment which<\/p>\n
    had    already     been   made    in    the   appellant’s<\/p>\n
    favour.\n<\/p>\n<\/p>\n
12. In fact, Mr. Srivastava concluded on the note<\/p>\n
    that   the   only    point     for     decision   in    this
\n                                                                13<\/span><\/p>\n
    appeal is whether alleged cancellation of the<\/p>\n
    appellant’s         original          allotment     could        on<\/p>\n
    revival be said to be a fresh allotment which<\/p>\n
    entailed payment of fresh allotment charges.<\/p>\n
    According to Mr. Srivastava, since at no point<\/p>\n
    of    time    had       the    respondent         treated        the<\/p>\n
    appellant’s allotment                 to be cancelled, the<\/p>\n
    issue being raised on behalf of the respondent<\/p>\n
    DDA   was    untenable        and     had   erroneously      been<\/p>\n
    accepted by the Commission.\n<\/p>\n<\/p>\n
13. Ms. Manika Tripathy Pandey, learned advocate<\/p>\n
    appearing     for       the    DDA,    however,     reiterated<\/p>\n
    that after an allotment is cancelled, there<\/p>\n
    can only be a fresh allotment and the question<\/p>\n
    of revival of a dead proposal could not arise.<\/p>\n
    Ms. Tripathy emphatically relied on clause 4<\/p>\n
    of the Scheme which indicates the procedure to<\/p>\n
    be    followed     in    the    matter      of   allotment       of<\/p>\n
    flats        and        the      same       is      reproduced<\/p>\n
    hereinbelow :-\n<\/p>\n
                                             14<\/span><\/p>\n
“The estimated cost of the flat as
\ngiven in this letter is provisional
\nand is subject to revision on the
\ncompletion of the flat.         Any price
\ndifference between the estimated cost
\nand the cost as it works out on
\ncompletion as per costing formula in
\nvogue would have to be paid alongwith
\nthe fifth and final instalment.         No
\ndefinite     time      by    which     the
\nconstruction, of the flats will be
\ncompleted can be indicted at this
\nstage.    Normally it takes 2 = years
\nperiod for completion of the project.
\nSometimes,     due    to   unforeseenable
\nreasons completion of project may get
\ndelayed.    For delay beyond 30th month
\nupto 36th month till the issue of
\ndemand letter for fifth and final
\ninstalment the allottee shall be paid
\ninterest @ 7% per annum and beyond 36th
\nmonth interest will be paid 10% on
\nhis\/her deposit.\n<\/p>\n
    The specific flat number will be
\nallotted through draw of lots.         The
\ndate and time for the draw will be
\nannounced      through     the     leading
\nnewspapers.     The demand letters for
\nfifth and final instalment indicating
\nthe number of flat allotted, the
\namount   payable,     documents    to   be
\nfurnished    and    formalities    to   be
\ncompleted     for    taking    over    the
\npossession will be sent by RAD post to
\nthe allottee at the address on record
\nwith the DDA within one month from the
\ndate of draw of letter for allotment
\nof specific flat number.       Failure to
\nfurnish all the requisite documents
\nwithin a period of 120 days from the
\ndate of issue of the demand letter for
\nfifth and final instalment will result
\n                                                                     15<\/span><\/p>\n
      in   automatic          cancellation            of    the
\n      allotment.”\n<\/p>\n<\/p>\n
14.   Ms. Tripathy submitted that the allotment of<\/p>\n
      flats by the DDA was to be done in two phases.<\/p>\n
      In the first phase the estimated cost of the<\/p>\n
      flat    is    given     on     a   provisional         basis        and<\/p>\n
      subject to revision on the completion of the<\/p>\n
      flat. No definite time period was indicated<\/p>\n
      but it has been mentioned that it takes about<\/p>\n
      2   =   years     to    complete         the    project,     which<\/p>\n
      period    could        also    stretch         upto   36    months.<\/p>\n
      For delay beyond the 30th upto the 36th month,<\/p>\n
      till the issue of demand letter for the fifth<\/p>\n
      and final instalment, the allottee shall be<\/p>\n
      paid interest @ 7% per annum and beyond 36th<\/p>\n
      months interest will be paid @ 10% on the<\/p>\n
      deposit      of   the    applicant.             In    the   second<\/p>\n
      phase, on the basis of a `draw of lots’ a<\/p>\n
      specific flat number would be allotted and the<\/p>\n
      demand       letter      for       the    fifth       and    final<\/p>\n
      installment indicating the number of the flat
\n                                                            16<\/span><\/p>\n
    allotted, the amount payable, documents to be<\/p>\n
    furnished and formalities to be completed for<\/p>\n
    taking      over    possession      would      be   sent     by<\/p>\n
    Registered post with acknowledgement due to<\/p>\n
    the allottee at the address on record with the<\/p>\n
    DDA, within one month from the date of the<\/p>\n
    draw for allotment of a specific flat number.<\/p>\n
    Ms. Tripathy laid stress on the condition that<\/p>\n
    failure to furnish all the requisite documents<\/p>\n
    within a period of 120 days from the date of<\/p>\n
    issue of the demand letter for the fifth and<\/p>\n
    final installment would result in automatic<\/p>\n
    cancellation of the allotment.<\/p>\n
15. Ms. Tripathy contended that having remained<\/p>\n
    silent      despite    having      received     the    demand<\/p>\n
    notice as also the show-cause notice, which<\/p>\n
    led    to   the     termination     of   the    appellant’s<\/p>\n
    allotment, the appellant waited for 2 = years<\/p>\n
    before making payment of the purported balance<\/p>\n
    when, in fact, the amount had to be calculated<\/p>\n
    on    the   basis     that   the   restoration        was,   in<\/p>\n
    fact, a fresh allotment.\n<\/p>\n
                                                                       17<\/span><\/p>\n
16. Ms. Tripathy urged that since the notice of<\/p>\n
      demand      in     respect        of     fifth        and        final<\/p>\n
      installment        had     been        duly     sent        to        the<\/p>\n
      appellant         by       Registered               Post          with<\/p>\n
      acknowledgement due at the address given by<\/p>\n
      him, there would be a statutory presumption<\/p>\n
      under Section 114(f) of the Evidence Act that<\/p>\n
      the demand notice had been duly served on the<\/p>\n
      appellant.          Ms.    Tripathy           urged    that           the<\/p>\n
      Commission rightly dealt with the matter and<\/p>\n
      no ground had been made out on behalf of the<\/p>\n
      appellant for interference with the same.<\/p>\n
17.   As   will    be     evident        from       what     has        been<\/p>\n
      mentioned hereinbefore, the real controversy<\/p>\n
      in   this    appeal       appears      to     be    whether           the<\/p>\n
      demand letter dated 10th September, 1996, for<\/p>\n
      payment     of    the    fifth    and     final       installment<\/p>\n
      had, in fact, been received by the appellant<\/p>\n
      and as to whether non-compliance with the same<\/p>\n
      resulted     in    termination         of     the     appellant’s<\/p>\n
      allotment and whether the restoration of such
\n                                                          18<\/span><\/p>\n
    allotment    on   a   representation      made   by        the<\/p>\n
    appellant    would    amount    to   a   fresh   or        new<\/p>\n
    allotment.\n<\/p>\n<\/p>\n
18. As submitted by Ms. Tripathy, except for the<\/p>\n
    statutory presumption under Section 114(f) of<\/p>\n
    the Evidence Act, there is no other material<\/p>\n
    to suggest that the demand notice had actually<\/p>\n
    been received by the appellant.<\/p>\n
19. The assertion of service of notice on account<\/p>\n
    of such presumption has been denied by the<\/p>\n
    appellant as a result whereof onus of proving<\/p>\n
    service shifted back to the respondent.                    The<\/p>\n
    respondent DDA has not led any other evidence<\/p>\n
    in support of the presumption of service.                   In<\/p>\n
    such circumstances, it has to be held that<\/p>\n
    such    service       had    not     been     effected.<\/p>\n
    Therefore, when on the appellant’s application<\/p>\n
    for    restoration      of     the   allotment,            the<\/p>\n
    allotment was restored, the only conclusion<\/p>\n
    that can be arrived at is that              the earlier
\n                                                                    19<\/span><\/p>\n
    allotment continued as no cancellation and\/or<\/p>\n
    termination had, in fact, taken place in terms<\/p>\n
    of clause 4 of the Scheme in question.<\/p>\n
20. As far as the MRTP Commission is concerned,<\/p>\n
    there is no definite finding on the question<\/p>\n
    of service of the demand notice. On the other<\/p>\n
    hand,     the     Commission           presumed          that        the<\/p>\n
    appellant       must     have        had    knowledge      of        the<\/p>\n
    allotment which had been widely publicised in<\/p>\n
    leading     newspapers.                    According      to         the<\/p>\n
    Commission, it was for the appellant to have<\/p>\n
    made inquiries relating to completion of the<\/p>\n
    construction and it should have waited for a<\/p>\n
    demand notice to have been sent to him.                              In<\/p>\n
    our view, the Commission also erred in placing<\/p>\n
    the onus of proof of service of the demand<\/p>\n
    notice    on     the    appellant,          since    except          for<\/p>\n
    denial     there        is     nothing        else       that        the<\/p>\n
    appellant       could        have     produced      to    prove        a<\/p>\n
    negative        fact.           As     we     have       indicated<\/p>\n
    hereinbefore,          the    presumption        under     Section
\n                                                        20<\/span><\/p>\n
114(f) of the Evidence Act is a rebuttable<\/p>\n
presumption and on denial of receipt of the<\/p>\n
Registered     letter     from     DDA     the   appellant<\/p>\n
discharged his onus and the onus reverted back<\/p>\n
to the respondent to prove such service by<\/p>\n
either    examining      the   postal     authorities         or<\/p>\n
obtaining a certificate from them showing that<\/p>\n
the registered article had been delivered to<\/p>\n
and had been received by the appellant.                 It is<\/p>\n
on a mistaken understanding of the provisions<\/p>\n
of Section 114(f) of the Evidence Act that the<\/p>\n
Commission came to the erroneous conclusion<\/p>\n
that the allegation of unfair trade practice<\/p>\n
on the part of the respondent authority had<\/p>\n
not     been   proved.    In     our     view,   from        the<\/p>\n
material on record it is quite clear that the<\/p>\n
respondent authority was unable to prove that<\/p>\n
service of the demand notice for the fifth and<\/p>\n
final    installment     had   been      effected   on       the<\/p>\n
appellant.\n<\/p>\n
                                                                     21<\/span><\/p>\n
21. Once   it     is     established        that       the    notice      of<\/p>\n
    demand for the fifth and final installment had<\/p>\n
    not been received by the appellant, the other<\/p>\n
    consequences, as indicated by Ms. Tripathy,<\/p>\n
    namely,        automatic         termination             and     fresh<\/p>\n
    allotment, cannot follow.                    In any event, in<\/p>\n
    our view, the restoration of the allotment did<\/p>\n
    not amount to a fresh allotment on the basis<\/p>\n
    of which the fresh demand notice could have<\/p>\n
    been issued.\n<\/p>\n<\/p>\n
22. Having        regard      to     what        has    been        stated<\/p>\n
    hereinabove, in our view the MRTP Commission<\/p>\n
    erred in law in shifting the onus of proof of<\/p>\n
    service of the demand notice on the appellant<\/p>\n
    and in discharging the notice of inquiry and<\/p>\n
    vacating       the       interim       order        issued       under<\/p>\n
    Section       12-A      of     the    M.R.T.P.           Act.         The<\/p>\n
    allegation         of   unfair       trade    practice          on    the<\/p>\n
    part     of     the      respondent          authority          stands<\/p>\n
    established.            The decision of the Commission<\/p>\n
    is, therefore, liable to be set aside.
\n                                                                  22<\/span><\/p>\n
23. The       appeal    is,    therefore,            allowed.          The<\/p>\n
      judgment of the MRTP Commission impugned in<\/p>\n
      this Appeal is set aside. The respondents are<\/p>\n
      directed to accept the sum of Rs.1,63,512\/-,<\/p>\n
      which    had     been   deposited         by    the     appellant<\/p>\n
      prior     to     receipt     of     the        demand     notice,<\/p>\n
      together       with     interest,     if        any,      accrued<\/p>\n
      thereupon,       in   full   and    final       settlement       of<\/p>\n
      their dues in respect of the flat allotted to<\/p>\n
      the   appellant       and    to    hand    over       possession<\/p>\n
      thereof to the appellant within a month from<\/p>\n
      the date of receipt of a copy of this order.<\/p>\n
24.   Having regard to the facts of the case, the<\/p>\n
      parties will bear their own costs.<\/p>\n
                                        ………………J
\n                                          (ALTAMAS KABIR)
\n                                      23<\/span><\/p>\n
                    ……………….J
\n                       (MARKANDEY KATJU)<\/p>\n
New Delhi
\nDated: 02.09.2008<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India V.N. Bharat vs D.D.A. & Anr on 2 September, 2008 Author: A Kabir Bench: Altamas Kabir, Markandey Katju 1 SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1373 OF 2006 V.N. Bharat …Appellant Vs. D.D.A. & Another …Respondents J U D G M E N T ALTAMAS KABIR,J. 2 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-199297","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nV.N. 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