ORDER

The respondent herein applied for allotment of a flat in Vth self financing housing registration scheme, 1982 floated by the appellant herein. A flat was allotted to the respondent. It appears that the letter of allotment sent by the appellant to the respondent was not delivered. It further appears that after the respondent received the letter of allotment, he deposited the two instalments. The first deposit was made on 20-4-1989 and the second deposit was made on 21.10.1989. But the said deposits were made after great delay, with the result the appellant did not deliver possession of the flat to the respondent. Under such circumstances, the respondent filed a writ petition under Article 226 of the Constitution before the High Court. The High Court allowed the writ petition and directed the appellant herein to allot a flat to the respondent in the next draw on receipt of interest at the rate of 12% p.a., and thereafter at the rate of 18% p.a., on delayed payments of instalment. It is against the said judgment, the appellant has filed this appeal.

2. Learned counsel appearing for the appellant urged that since the respondent did not apply for extension of time for depositing the instalments within the due date, therefore, the order of allotment stood cancelled and further he disqualified himself to deposit the instalments. We have perused the record but do not find any such averment by the appellant that the respondent did not apply for extension of time within due date. We, therefore, cannot presume that there was no application for extension of time by the respondent before the due date for making the payment. We, accordingly, reject the argument.

3. Learned counsel then urged that since the respondent deposited two instalments after the due date in a bank and not with the appellant and, therefore, such deposit was not legal deposit and no benefit would accrue to the respondent on such deposit. Again we do not find any such averment by the appellant either in the counter-affidavit filed by them before the High Court or in this appeal. In the absence of such averments, the appellant is not entitled to raise such ground for the first time.

4. In that view of the matter, we do not find any merit in the appeal. The appeal is accordingly dismissed. There shall be no order as to costs.

5. In case the respondent pays the entire dues including the interest calculated from the due date till deposit of such amount as per clause 6 of the allotment letter, the appellant shall allot and deliver possession of the flat in the next draw of lots to the respondent. The possession would be delivered only when the full amount towards the price of the flat is paid within two months from today to the Delhi Development Authority.

Appeal dismissed.

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