Delhi Development Authority Vs. Shilpa
Co-Operative Group Housing Society Limited [1996] INSC 330 (27 February 1996)
Hansaria
B.L. (J) Hansaria B.L. (J) Ray, G.N. (J) Hansaria,J.
CITATION:
JT 1996 (6) 97 1996 SCALE (2)601
ACT:
HEAD NOTE:
Leave
granted.
2. The
short point which needs determination in these appeals is : How much of the
earnest money deposited by the respondents should be allowed to be forfeited by
the appellant? The deposit had connection with the allotment of land made in favour
of the respondents by the appellant, which proposal did not ultimately ame
through because of the escalation of premium, for which reasons the allottees
refused to accept the allotment, resulting in cancellation of the same.
3.
This Court had occasion to examine this very question in Delhi Development
Authority vs. Grihsthapana Co-operative Group Housing Society Ltd., JT 1995 (2)
SC 530. It is by referring to this decision that the High Court, in the
impugned judgments, has held that the appellant could have forfeited a sum of
Rs.5 lacs only. The appellant's case is that the facts in Grihsthapana's case
were different; and so, what was decided therein is not applicable. The
respondent's stand on the other hand is that their cases are covered by the
aforesaid decision.
4. Shri
Jaitley, appearing for the appellant, has contended that the distinction lies
in the fact that in Grihsthapana's case, the co-operative society had not made
any deposit after 10.5.1993 which is the date on which this Court had disposed
of the Special Leave Petitions filed by Green Valley Co-operative Group Housing
Society making a grievance about escalation of the rate of premium. By that
order this Court had only extended the time to pay instalments at the escalated
rate upto 31st May,
1993 without interest,
and thereafter with interest upto 31.7.1993. It is an admitted position that
the respondents in the present appeals had paid further sum of money after the
order of this Court dated 10.5.1993, which fact was missing in the earlier
case.
5. Shri
Bhattacharjee, appearing for the respondents in appeals arising out of SLP(C)
Nos. 24713 & 24721 of 1995, has urged that the fact of deposit after
10.5.1993 can not make the ratio in Grihsthapana's case inapplicable. We are
afraid, we cannot agree because the decision in that case was based on the fact
that there was no acceptance of the offer given by the appellant on 3.11.1992
at the enhanced premium, whereas the deposits made in cases at hand after the
order of 10.5.1993 clearly shows that the offer of 3.11.1992 was accepted. The
submission on behalf of the respondent in appeal relatable to SLP(C) No.415/94
that the membership of the co-operative society was reduced to 76, as against
135, and so, the deposit made subsequent 10.5.1993 should not he taken to be a
deposit on behalf of all the members, cannot be accepted to have made any
difference because when the deposit was made on 31.5.1993 it was on behalf of
135 members.
6. Shri
Bhattacharjee was at pains in submitting that though the facts of Grihsthapana's
case were not on all fours with the cases at hand. Civil Appeal No.930/95
relatable to Ahluwalia Co-operative Group Housing Society Limited, which was
one of the appeals in the batch disposed of by the aforesaid judgment, was one
in which some deposit had been made after 10.5.1993; and so, what was decided
in Ahluwalia's appeal would, in any case, be applicable. As to this, Shri Jaitley
has contended that when the earlier civil appeals were taken up in batch, the
facts of Ahluwalia were not specifically brought to the notice of the Court;
and it is because of this that benefit of what was decided in the facts of Grihsthapana
was made available to Ahluwalia. As the decision in that case is based on the
facts of Grihsthapana's case, we find no difficulty in stating that the benefit
which had come to be made available to Ahluwalia was inadvertent and cannot be
extended to the respondents herein.
7. The
aforesaid shows that the ratio in Grihsthapana case cannot apply and it would
have been permissible for the appellant to forfeit the entire earnest money due
from the respondents in view of the law laid down in Grihsthapana case. If we
were to allow the appellant to do so, we find that the amount becoming liable
to be forfeited would be on very high side inasmuch as in the case of Shilpa
Co- operative - respondent in appeal arising out of SLP(C) No.24713/95 this
amount would be in a neighborhood of Rs.22 lacs, even if we were to reckon the
amount of earnest money which had been actually deposited, and not what was
required to be deposited. We would think that keeping in view the many rounds
of litigation and the hardship which would be caused to the respondents,
Justice demands that we may not burden the respondents with huge sums in this
regard. Shri Jaitley has urged that the appellant is at no fault and indeed it
had suffered because of lapse of the respondents, being required to pay
interest on the amount taken on loan by it; and so, if we were to give some
relief to the respondents, the hardship of the appellant may also be borne in
mind.
8.
Having considered the cases of both the sides and the facts and circumstances
of the appeals at hand, we are of the view that 50 per cent of the amount which
had otherwise become due to the appellant should be allowed to be forfeited. We
make it clear that 50 per cent would be calculated, not on the total amount
which these respondents were required to deposit pursuant to the allotment
order of 3.11.1992, but on the component of the earnest money out of actual
total deposit. The appellant would refund the remaining amount to the
respondents within a period of six weeks from today, failing which the
respondents would be entitled to interest @ 18% par annum from today till
payment.
9. The
appeals are allowed accordingly. No order as to costs.
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