Paragraph numbers below are the court’s original numbering, recovered from the source text.
13. Ms. Manika Tripa.thy Pandey, learned advocate appearing for the DOA however, reiterated that after an allotment is cancelled, there can only be a fresh allotment and the question of revival of a dead proposal could not arise. Ms. C Tripathy emphatically relied on clause 4 of the Scheme which indicates the procedure to be followed in the matter of allotment of flats and the same is reproduced hereinbelow :- 'The estimated cost of the flat as given in this Jetter is prC?visional and is subject to revision on the completion of the flat. Any price. difference between the estimated cost · and the cost as it works out on completion as per costing formula in vogue would have to be paid alongwith the fifth and final instalment. No definite time by which the construction, of the flats will be completed can be indicated at this stage. Normally i.t takes 2 ~ years period for completion of the project. Sometimes, due to unforeseenable reasons completion of project may get delayed. For delay beyond 30th month upto 361h month till the issue of demand letter for fifth and final instalment the allottee shall be paid interest@ 7% per annum and beyond 361h me~th interest will be paid 10% on his/her deposit. The specific flat number will be allotted through draw of lots. The date and time for the draw will be announced through the leading newspapers. The demand letters for fifth and final instalment indicating the number of flat allotted, the amount payable, documents to be furnished and formalities to be completed for taking over the possession will be sent by RAD post to the allottee at the address· on record with the DOA within one month from V.N. BHARAT v. D.DA AND ANR. [ALTAMAS KABIR, J.] the date of draw of letter for allotment of specific flat number. Failure to furnish all the requisite documents within a period o( 120 days from the date of issue of the demand letter for fifth and final instalment will result in automatic cancellation of the allotment."
14. Ms. Tripathy submitted that the allotment offlats by the .. ""( DOA was to be done in two phases. In the first phase the estimated cost of the flat is given on a provisional basis and subject to revision on the completion of the f!et. No definite time period was indicated but it has been mentioned that it takes about 2 Yz years to complete the project, which period could c also stretch upto 36 months. For delay beyond the 30th upto the 35th month, till the issue of demand letter for the fifth and final instalment, the allottee shall be paid interest@ 7% per annum and beyond 35th months interest will be paid @ 10% on the deposit of the applicant. In the second phase, on the basis of D ./.,. a 'draw of lots' a specific flat number would be allotted and the demand letter for the fifth and final installment indicating the number of the flat allotted, the amount payable, documents to be furnished and formalities to be completed for taking over possession would be sent by Registered post with acknowledgement due to the allottee at the address on record with the DOA, within one month from the date of the draw for allotment of a specific flat number. Ms. Tripathy laid stress on · the condition that failure to furnish all the requisit~ documents· -j.- within a period of 120 days from the date of issue of the demand · F letter for the fifth and final installment would result in automatic· cancellation of the allotment.
15. Ms. Tripathy contended that having remained silent despite having received the demand notice as also the show- …,.._ …-(_ cause notice, which led to the termination of the appellant's G allotment, the appellant waited for 2 Yz years before making payment of the purported balance when, in fact, the amount had to be calculated on the basis that the restoration was, in fact, a fresh allotment.
16. Ms. Tripathy urged that since the notice of demand in )…— respect of fifth and final installment had been duly sent to the appellant by Registered Post with acknowledgement due at th~ address given by him, there would be a statutory presumption under Section 114(f) of the Evidence Act that the demand notice had been· duly served on the appellant. Ms. Tripathy urged that the Commission rightly dealt with the matter Y-…. and no ground had be~n made out on behalf of the appellant for interference with the same.
17. As will be evident from what has been mentioned c hereinbefore, the real controversy in this appeal appears to be whether the demand letter dated 1 oth September, 1996, for payment of the fifth and final installment had, in fact, been received by the appellant and as to whether non-compliance with the same resulted in termination of the appellant's allotment and whether the restoration of such allotment on a representation made by t~e appellant would amount to a fresh or new allotment.
18. As submitted by Ms. Tripathy, except for the statutory 'I""' presumption under Section 114(f) of the Evidence Act, there is · no other material to suggest that the demand notice had actually been received by the appellant.
19. The assertion of service of notice on account of such presumption has been denied by the appellant as a result whereof onus of proving service shifted back to the respondent. The respondent D.DA has not led any other evidence in support of the presumption of service. In such circumstances, it has to be held that such service had not been effected. Therefore, when on the appellant's application for restoration of the allotment, the allotment was restored, the only conclusion that G can be arrived at is tnat the earlier allotment continued as no cancellation and/or termination had, in fact, taken place in terms )'–,.,… of clause 4 of the Scheme in question.
20. As far as the MRTP Commission is concerned, there is no definite finding on the question of service of the demand H notice. On the other hand, the Commission presumed that the V.N. BHARAT v. D.D.A AND ANR. [ALTAMAS KABIR, J.] ….. -…… ~ appellant must have had knowledge of the allotment which had been widely publicised in leading newspapers. According to the Commission, it was for the appellant to have made inquiries, relating to completion of the construction and it should have . waited for a demand notice to have been sent to him. In our view, the Commission also erred in placing the onus of proof B of service of the demand notice on the appellant, since except ' for denial there is nothing else that the appellant could have . produced to prove a negative fact. As we have indicated . hereinbefore, the presumption under Section 114(f) of the Evidence Act is a rebuttable presumption and on denial of c receipt of the Registered letter from DOA the appellant discharged his onus and the onus reverted back to the respondent to prove such service by either examining the p6stal authorities or obtaining a certificate from them showing that the . registered article had been delivered to and had been received by the appellant. It is on a mistaken understanding of the provisions of Section 114(f} of the Evidence Act that the …. Commission came to the erroneous conclusion that the allegation of unfair trade practice on the part of the respondent authority had not been proved. In our view, from the material on record it is quite clear that the respondent authority was unable to prove tha! service of the demand notice for the fifth and final installment had been effected on the appellant.
21. Once it is established that the notice of demand for the fifth and final installment had not been received by the f appellant, the other consequences, as indicated by Ms. Tripathy, namely, automatic termination and fresh allotment, cannot follow. In any event, in our view, the restoration of the allotment did not · amount to a fresh allotment on the basis of which the fresh demand notice could have been issued. '-,. -<
22. Having reg~rd to what has been stated hereinabove, in our view the MRTP Commission erred in law in shifting the onus of proof of service of the demand notice on the appellant and in discharging the notice of inquiry and vacating the interim order issued under Section 12-A of the M.R.T.P. Act. The allegation of unfair trade practice on the part of the respondent r– authority stands es·tablished. The decision of the Commission is, therefore, liable to be set aside.
23. The appeal is, therefore, allowed. The judgment of the MRTP Commission impugned in this Appeal is set aside. The respondents are directed to accept the sum of Rs.1,63,512/-, which had been deposited by the appellant prior to receipt of the demand notice, together with interest, if any, accrued thereupon, in full and final settlement of their dues in respect of the flat allotted to the appellant and to hand over possession c thereof to the appellant within a month from the date of receipt of a copy of this order.
24. Having regard to the facts of the case, the parties will bear their own costs. D.G. Appeal allowed. >— "'*'