V.N. BHARAT v. D.D.A. AND ANR

Citation: [2008] 12 S.C.R. 1119

Court: Supreme Court of India

Bench: ALTAMAS KABIR, MARKANDEY KATJU

Case summary

V.N. BHARAT v. D.D.A. AND ANR.pdf

Judgment text

(2008] 12 S. C. R. 1119 V. N. BHARAT v. D. D. A. AND ANR. (Civil Appeal No. 1373 of 2006) SEPTEMBER 2, 2008 • ~ [ALTAMAS KABIR AND MARKANDEY KATJU, JJ. ] Evidence Act, 1872: s. 114(f) - Presumption as to service - Demand letter allegedly issued by DOA - Receipt of, denied by the allottee - Held: Presumption under s. 114(f) is rebuttable presumption - On denial of receipt, al/ottee discharged his onus - Onus shifted to DOA to prove service, which it failed to discharge. Monopolies and Restrictive Trade Practices Act, 1969: Unfair trade practice - Allotment of flat - Cancellation of, on :. _ account of non-compliance of demand letter - Restoration of . , allotment demanding fresh allotment charges - Challenge against - Held: ODA failed to prove that service of demand notice was effected on the allottee - Therefore original allotment continued - Restoration of allotment would not amount to fresh or new allotment - Hence, demand of fresh allotment charges amounted to unfair trade practice.

Appellant applied for the allotment of SFS flats. In terms of the Scheme, the first four instalments were to be paid after every six months and for the fifth and final instalment, fresh demand letter was to be issued separately. The appellant paid the first four instalments and was allotted a specific flat. Respondent-DOA issued a show cause notice asking appellant to explain as to why he had failed to make payment of Rs. 1,63,512/-, towards the fifth and final installment. Without replying to the show-cause notice, the appellant informed the DOA that he had never received any d~mand letter from the DOA for making payment of the fifth and final installment. The appellant accordingly, requested the ODA to issue a demand letter indicating the amount of the fifth instalment so that he could take over possession of the flat. Subsequently, on 8. 5. 1998, the appellant received a letter from the DOA dated 22. 4. 1998, informing him that a demand letter had been issued on Y-,. I 11. 9. 1996.

According to the appellant, the said letter was never tendered to him, rather in the letter dated 22. 4. 1998, sent by DOA it was stated that anothe! demand letter was in process and would be issued in due course. Appellant, however on 6. 5. 1998 had paid the fifth and final instaflment to the DOA by a pay-ord. er 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. >: Thereafter, on 26. 5. 1998, the appellant filed a complaint against DOA-respondent under s. 36(8) and s. 12-A of the Monopolies and Restrictive Trade Practices Act, 1969, before the Commission alleging unfair trade practice by the DOA on various grounds, and praying for registration of the sale deed by the ODA in his favour. The Commission held that the all. egations of unfair trade practice on the part of the respondent-DOA, was not proved. Hence the present appeal.

Allowing the appeal, the Court HELD: 1. 1. Except for the statutory presumption under s. 114(f) of the Evidence Act, there is no other material to suggest that the demand notice had actually been received by the appellant. The assertion of service of notice on account of such presumption has been denied by the appellant as a result whereof onus of proving service shifted back to the respondent. The respondent-ODA 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 the Scheme. [Paras 18, 19] [1130,D-G] 1. 2. There is no definite finding by the Commission 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. 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 have produced to prove a negative fact. The presumption under s. 114(f) of the Evidence Act is a rebuttable presumption and on denial of receipt of the Registered letter from DOA, the appellant discharged his onus and the onus reverted back to the respondent to prove such service by either examining the postal authorities or obtaining a certificate from them showing that the registered article had been delivered to and had been received by the appellant.

It is on a mistaken understanding of the provisions of s. 114(f) of the Evidence Act that the Commission came to the erroneous conclusion that the allegation of unfair trade practice on the part of the respondent authority had not been proved. From the material ~n record it is quite clear that the respondent authority was unable to prove that service of the demand notice for the fifth and final installment had been effected on the appellant. [Para 20] [1130,H; 1131,A-E] 1. 3. Once it is established that ,the notice of demand ,_ ' for the fifth and final installment had not been received by the appellant, the other consequences, namely, automatic termination and fresh allotment, cannot follow. In any event, 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. The respondents are di- 8 rected 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. [Paras 21, 23] [1131,F-G; 1132,B-C] CIVILAPPELLATE JURISDICTION: Civil Appeal No. 1373 of 2006 From the final Judgment and Order dated 17. 1. 2006 of the Monopolies & Restrictive Trade Practices Commission in UTPE 146/1998 Ravindra Shrivastava, Arun Kumar Beriwal, Kunal Verma, Rajul Shrivastav, Supriya Jain, Krishan Kumar and Anup Jain for the Appellant. Monika Tripathy Pandey and Rohit Sharma for the Respondents. The Judgment of the Court was delivered by ALTAMAS KABIR, J. 1. The appellant appHed 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 "ODA").

As per the scheme, the flats to be constructed on a Multi-storied basis was expected to be ready within aperiod of two years. In clause 10 of the Scheme, the method of payment has been provided for as fo! lows:- "After a person has been allotted a flat he/she would be called upon to make the payments as per the following schedule: ........ , 25% (including the amount paid as registration deposit) as initial deposit on allotmenUallocation. .. 20% after six months 25% after next six months 20% after next six months ~ '>(' 10% when required to take over possession. l The Demand-cum-allotment letter, whenever issued to the ... allottees will indicate t~e 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 . . installment, a fresh demand letter will be issued separately and which may also include the possible increase in the cost of the flat. " A. 2.

As far as the first four installments 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 ODA 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 appellant had applied for registration of a semi-finished flat on payment of Rs. 10,000/- towards registration deposit in respect of the same. On 6th December, ~,.

,~ 1991 the appellant was allotted a flat at Dwarka, Sector 3, Pocket-II, First Floor in Category-II and allotment letter was also issued to him by the ODA on 31st December, 1991, wherein the schedule for payment of the first four installments was given. As indicated hereinabove, between 31st January, 1992 and - )--" 20th October, 1993, the appellant paid all the four installments in accordance with the demands made by ODA. . }' 5. As will appear from the materials on record the appellant, despite being allotted a specific flat, did not make payment of the fifth and final instalment within 15 days of the receipt of the allotment letter as stipulated in the terms and 'f-... conditions of the Self-Financing Scheme. This resulted in the F issuance of a show-cause notice by the DOA, which was received by the appellant on 1oth September, 1997, asking him to explain as to why he had failed to make payment of the amount of Rs.

1,63,512/- by 31st December, 1996, towards the fifth and final installment. Without replying to the show-cause notice, the appellant by a letter dated 19th November, 199"7, informed the DOA that he had never received any demand letter from the DOA for making payment of the fifth and final installment. The appellant accordingly, requested the DOA to issue a demand letter indicating the amount of the fifth instalment >so that he could take over possession of the fiat in question. .. ' 1 Subsequently, on 8 hMay, 1998, the appellant received a letter from the DOA dated 22nd April, 1998, informing him that a demand letter had been issued on 11th September, 1996. According to the appellant, the said letter had never been tendered to him. In faet,,. in the letter dated 22nd April, 1998, sent by ODA it was stated that another demand letter was in process and would be issued in due course. 6.

It is the case of the app13llant that on 6th May, 1998, he Y~ • paid the fifth and final installment to the ODA by a pay-order for a sum of Rs. 1,63,512/-, being the amount mentioned in the show cause notice dated 1oth September, 1997, even prior to the receipt of the DDA's letter dated 22nd April, 1998 on ath May, 1998. ~~ 1 7. Thereafter, on 26 h May, 1998, the appellant filed a complaint against the respondents herein under Section 36(8) and Section 12-A of the Monopolies and Restrictive Trade r- Practices Act, 1969, (hereinafter referred to as the "MRTP Act. V. N. BHARAT v. 0. 0. A. AND ANR. 1125 -l [AlTAMAS KABIR, J. ] ~~ 1969") before the Monopolies and Restrictive Trade Practices Commission alleging unfair trade practice by the ODA on various grounds. The appellant prayed for registration of the sale deed by the DOA in his favour and also for compensation of Rs. 2 lacs. ·'s 8. While disposing of the appellant's application under ..

~ Section 12-A 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(8) 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 lnquiry was, therefore, discharged and the interim order issued under Section 12-A 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 an.

allotment in favour of the appellant would have to be in the nature of a fresh allotment. Mr. Srivastava submitted that pursuant to the representation made by the appellant for restoration of the allotment of the flat in question .. )'\ at the current cost, the DOA issued a letter dated 22nd April, ... 1998, informing him that a fresh demand letter for the final installment would be issued to him in due course. The said representation was made after the appellant had received the show-cause notice dated 1oth September, 1997, from the ODA. However, the appellant deposited the amount as was mentioned ~- ~ appellant, the other consequences, 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. '-,. - --- "'*'