By the Court.—Heard Sri Ramendra Pratap Singh, Advocate for appellant and Sri S. Shekhar, Advocate for respondent.

2. This is a defendant’s appeal under Section 96 of the Code of Civil Procedure (hereinafter referred to as the “CPC”), which has arisen from the judgment dated 29.8.2002 and decree dated 5.9.2002 passed by Sri Rajbhan Singh, VIth Additional Civil Judge (Senior Division), Ghaziabad in Original Suit No. 321 of 1992, whereby the Court below has decreed suit and made a declaration that defendant-appellant is not entitled to recover 75% of auction money and interest thereon from plaintiff-respondent until it perform and complete the following works:

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“A. The community facility shown in the layout plan be not changed into commercial centre.

B. The commercial centre be not fully developed.

C. Till the time the unauthorised encroachment at the plot and in its vicinity is not removed.

D. Communication facilities like telephone, telex and post office facility be not provided by the defendant.” (English translation by the Court)

3. It has also directed defendant-appellant to restore plaintiff’s allotment and to not forfeit 25% of money deposited by plaintiff.

4. The plaintiff-respondent, M/s Marwan Hotels Private Limited, a Company registered under the Companies Act, 1961 having its registered office at 17-Defence Colony, New Delhi, instituted Original Suit No. 321 of 1992 in the Court of Civil Judge, Ghaziabad pleading that defendant-appellant, i.e., New Okhla Industrial Development Authority (hereinafter referred to as the “NOIDA”) published an advertisement in daily newspaper “Hindustan Times” on 11.1.1989 offering plot No. C-18, Sector-4, Noida Complex on lease for the purpose of construction of a Restaurant and Hotel in accordance with parameters set up by Ministry of Tourism. The plot is situated on the main road, in the heart of fully developed commercial center, Sector-4, and there existed facilities of Telephone, Telex, Post Office, Banking etc. The plaintiff made highest bid for Rs. 40,75,000/- (at the rate of Rs. 4075/- per square meter). As per the terms and condition of auction, it deposited 25% i.e., Rs. 10,20,000/- at the time of auction. The remaining 75% of amount was to be deposited by plaintiff-respondent by 27.4.1989. The defendant had assured plaintiff that before payment of 75% amount, it will remove all slum dwellers from the site and shall also provide various facilities as per offer. The plaintiff sent letters dated 4.2.1989 and 20.2.1989 requesting defendant to comply with their assurance but in vain. In March, 1989, plaintiff received a lay out plan showing that instead of commercial, concerned area was declared as community center. The plaintiff sent letter dated 12.4.1989 requesting defendant to correct lay out plan, remove slum dwellers and develop area into commercial center but received no reply. Several reminders were also sent, i.e., dated 4.2.1989, 20.2.1989, 12.4.1989, 26.5.1989, 1.6.1989, 25.2.1991, 23.5.1991, 15.8.1991 and 28.12.1991. Instead of taking any action as per its assurance, defendant served a letter dated 24.2.1992 upon plaintiff demanding Rs. 30,55,000/- as balance auction money alongwith interest. Defendant was not entitled to demand interest since it has not observed its own part of obligation and on the contrary plaintiff has suffered due to their inaction. The defendant, however, informed plaintiff that either it should pay balance amount alongwith interest else 25% amount already deposited shall be forfeited and recovery certificate shall be issued to recover amount mentioned in letter dated 24.2.1992.

5. At this stage, plaintiff vide plaint date