ESTATE OFFICER, HUDA vs Dev Dutt Gandhi

THIS order shall dispose of two appeals No. 42 of 1997 and 80 of 1997 against the orders dated 6.11.1996 and 7.1.1997 respectively of the District Forum, UT, Chandigarh.

DEV Dutt Gandhi, a resident of Chandigarh applied for a 14-Marla plot in Sector 23, Sonepat, in response to an advertisement. He deposited a sum of Rs. 23,020/- prior to 15.3.1991, which was the last date for the aforesaid purpose. HUDA allotted plot No. 1803 in Sector, 23, Sonepat vide its allotment letter No. 7702 dated 8.8.1991 and thereafter though the complainant continued depositing further instalments, yet there was no development and ultimately on 17.7.1995, a complaint was instituted and after proceedings, the District Forum, Chandigarh, ordered on 6.11.1996 that the sum of Rs. 1,16,837/- together with interest @ 18% p.a. w.e.f. the date of various deposits made by the complainant be refunded. Aggrieved against it, the present appeal has been attempted by HUDA. A persual of Annexure Cl establishes that a 14-marla plot bearing No. 1803 was allotted to the respondent in Sector 23, Sonepat, by the HUDA and its price payable was Rs. 2,30,100/-. A perusal of Annexure C3 which contains the details of the deposits made, establishes that a sum of Rs. 1.16.837/- was deposited by the aforesaid allottee. The relevant lines from para 6 of reply dated 16.10.1996 of the respondent are reproduced as under: "It is pertinent to mention that the development work in Sector 23 are in full progress and is likely to be completed in near future. On the completion of the development work in the site the possession shall be offered to the allottees. The land stands acquired and the possession of the same have been taken by the HUDA and the development work is in full progress."

A perusal thereof shows that even till 16.10.1996, the development work was not complete though as seen above, the plot was allotted about 5 years earlier in August, 1991. Thus it is well established that the appellants were unable to deliver a suitably developed plot to the allottee Dev Dutt Gandhi for a period of 5 years.

The main question for decision raised here is whether the appellant is entitled to deduct earnest money deposited by the allottee. In support thereof, our attention has been invited to HUDA v. Smt. Nalini Aggarwal etc. II (1997) CPJ 8 (SC)=JT 1997 (5) SC 179. This case did not relate to an allottee where the development work was incomplete. In the aforesaid case, the only issue involved related to the demand of interest on earnest money because the complainant was not successful in the draw of lots and delay in the refund of the earnest money was on account of administrative reasons. Thus, the facts of the aforesaid case were quite distinguishable from the case now in hand.

THE learned Counsel for the appellant has drawn our attention to HUDA and Another v. Kewal Krishan Gael, AIR 1996 SC 1981 and stressed that the appellant was entitled to forfeit the earnest money. It shall be useful to reproduce para 3 of the aforesaid judgment, which is as under: "3. THE short question that arises for consideration is, where a land is allotted and the allottee deposits some instalments but thereafter intimates the authority about his incapacity to pay up the balance instalments and requests for refund of the money paid, is the alloting authority entitled to forfeit the earnest money deposited by the allottee or could be only entitled to forfeit 10% of the total amount deposited by the allottee till the request is made, as directed by the High Court ?

This goes to show that the main reason for forfeiture in the aforesaid case was incapability of the allottee to pay the instalments. THE present case wholly pertains to deficiency on the part of the appellant and not on incapability of the respondent. Besides this, in the aforesaid case, the meanings of ''earnest money'' were also dealt with and broadly it was observed that a contract may fail on account of a default if he fails to carry out his part. In the case now in hand, there was no default on the part of the respondent. On the contrary, the default or deficiency had been on the part of the appellant. We are of the view that the aforesaid authority cannot be said to be helpful to the appellant. On the contrary, our attention has been invited to R. K Gael v. HUDA, PLR 1997 (2) 174, wherein a Division Bench of Punjab & Haryana High Court held in a similar case of same Sector of Sonepat, where allotment letter was issued on 24.7.1991 and development work was incomplete and possession was not delivered and refund of the entire deposit together with interest @ 18% p.a. from the date of deposit has been ordered. In view of all the reasons discussed above, the appeal fails and it is dismissed with costs of Rs. 1,000/-.

SIMILARLY appeal No. 80 of 1997 attempted by HUDA against Kuldip Singh, an allottee in respect of a 10-marla plot bearing No. 2019 situated in the same Sector of Sonepat, wherein the refund of Rs. 63.420/- together with interest @ 18% p.a. from the dates of various deposits has been ordered, also fails and is dismissed with costs of Rs. l.000/-. Appeal dismissed with costs.