Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2008 Supreme(SC) 1315

2008(6) Supreme 343
Supreme Court of india
Altamas Kabir and Markandey Katju, JJ.
V.N. Bharat — Appellant
versus
D.D.A. & Another — Respondents
Civil Appeal No. 1373 of 2006
Decided on : 02-09-08

Advocates appeared:
For the Appellant :Ravindra Shrivastava, Sr. Adv., Arun Kumar Beriwal, Kunal Verma, Rajul Shrivastav, Ms. Supriya Jain, Krishan Kumar and Anup Jain, Advocates.
For the Respondents:Manika Tripathy Pandey and Rohit Sharma, Advocates.

Important Point
Presumption under Section 114(f) of the Evidence Act is a rebuttable presumption.

Headnote:Monopolies and Restrictive Trade Practices Act, 1969 – Section 36(B) and Section 12-A – Allotment of flat to Appellant by the Delhi Development Authority – Payment of first four installments by appellant – Non payment of fifth and final instalment – Issuance of a show-cause notice by DDA, on said non payment – Appellant’s case that he had never received any demand letter from the DDA for making payment of the fifth and final installment – Complaint – Commission held that allegations of unfair trade practice on part of respondent authority, had not been proved – Appeal – As far as MRTP Commission was concerned, there was no definite finding on question of service of demand notice- On the other hand, Commission presumed that appellant must have had knowledge of the allotment which had been widely publicised in leading newspapers – Commission erred in placing onus of proof of service of demand notice on appellant, since except for denial there was nothing else that appellant could have produced to prove a negative fact – Presumption under Section 114(f) of the Evidence Act is a rebuttable presumption and on denial of receipt of the Registered letter from DDA appellant discharged his onus and the onus reverted back to respondent to prove such service by either examining 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 was on a mistaken understanding of provisions of Section 114(f) of the Evidence Act that the Commission came to the erroneous conclusion that allegation of unfair trade practice on the part of the respondent authority had not been proved – Respondent authority was unable to prove that service of the demand notice for the fifth and final installment had been effected on appellant – The allegation of unfair trade practice on the part of the respondent authority stood established – Impugned judgment of MRTP Commission hence set aside – Appeal allowed. (Paras 19 to 24)
       Facts of the Case :
       A complaint alleging unfair trade practices was filed by appellant herein in the instant case against Respondent authority. Commission held that allegations of unfair trade practice on part of respondent authority, had not been proved. Present appeal has been filed by appellant against said order of Commission.
       Findings of the Court :
       As far as MRTP Commission was concerned, there was no definite finding on question of service of demand notice. On the other hand, Commission presumed that appellant must have had knowledge of the allotment which had been widely publicised in leading newspapers. Commission erred in placing onus of proof of service of demand notice on appellant, since except for denial there was nothing else that appellant could have produced to prove a negative fact It was on a mistaken understanding of the provisions of Section 114(f) of the Evidence Act that Commission came to erroneous conclusion that allegation of unfair trade practice on part of the respondent authority had not been proved. Respondent authority was unable to prove that service of the demand notice for the fifth and final installment had been effected on appellant. The allegation of unfair trade practice on the part of the respondent authority stood established. Impugned judgment of MRTP Commission was hence set aside.
       Result : Appeal allowed.

Judgment

Altamas Kabir, J. —

1.The appellant applied 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 “DDA”). As per the scheme, the flats to be constructed on a Multi-storied basis was expected to be ready within a period of two years. In clause 10 of the Scheme, the method of payment has been provided for as follows:–

“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 allotment/allocation.

20% after six months

25% after next six months

20% after next six months

10% when required to take over possession.

The Demand-cum-allotment letter, whenever issued to the allottees will indicate the 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.”

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 DDA 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 DDA 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 DDA.

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 conditions of the Self-Financing Scheme. This resulted in the issuance of a show-cause notice by the DDA, which was received by the appellant on 10th 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, 1997, informed the DDA that he had never received any demand letter from the DDA for making payment of the fifth and final installment. The appellant accordingly, requested the DDA to issue a demand letter indicating the amount of the fifth instalment so that he could take over possession of the flat in question. Subsequently, on 8th May, 1998, the appellant received a letter from the DDA 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 fact, in the letter dated 22nd April, 1998, sent by DDA it was stated that another demand letter was in process and would be issued in due course.

6.It is the case of the appellant that on 6th May, 1998, he paid the fifth and final installment to the DDA by a pay-Order for a sum of Rs.1,63,512/-, being the amount mentione

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2008 Supreme(SC) 1315

2008(6) Supreme 343Supreme Court of indiaAltamas Kabir and Markandey Katju, JJ.V.N. Bharat — AppellantversusD.D.A. & Another — RespondentsCivil Appeal No. 1373 of 2006Decided on : 02-09-08

Important PointPresumption under Section 114(f) of the Evidence Act is a rebuttable presumption.

2008(6) Supreme 343
Supreme Court of india
Altamas Kabir and Markandey Katju, JJ.
V.N. Bharat — Appellant
versus
D.D.A. & Another — Respondents
Civil Appeal No. 1373 of 2006
Decided on : 02-09-08

Important Point
Presumption under Section 114(f) of the Evidence Act is a rebuttable presumption.