w w w . L a w y e r S e r v i c e s . i n


Skipper Bhawan Flat Buyers Assotiation v/s Skipper Tower Private Limited

    Regular First Appeal No. 23 of 1998
    Decided On, 23 November 2001
    At, High Court of Delhi
    By, THE HONOURABLE MR. JUSTICE ARUN KUMAR & THE HONOURABLE MR. JUSTICE A.K. SIKRI
    For the Appearing Parties: A. Bhattacharya, A.K. Singhla, A.K. Verma, Alok Agarwal, Aman Lekhi, Amrit Kaur, Amrit S. Chadha, Anil Airi, Anuradha Dutt, Arjun Pant, Arvind Sah, B.L. Mali, Bimla K. Kaul, C.P. Wig, Chetan Sharma, D.K. Garg, D.R. Thadani, G.D. Chopra, G.N. Agarwal, Gaurav Duggal, Gita Luthra, Gopal Bansal, H.K. Lal, Harprit Singh, Hema Kohli, Jagmohan Sabharval, Jasvant Singh, Jyoti Singh, K. Mohan Panikar, K.P. Kapur, Kamaljit Singh, L.K. Bhushan, M.J. Nasir, M.L. Bhargav, N.S. Bajwa, Navin Chawla, Nilam Rathore, P.N. Lekhi, P.N. Talvar, P.R. Bahl, Pardip Nandrajog, Pinki Anand, Pradip K. Rakshi, Prarnod Sehgal, R.B. Sawhney, R.K. Agarwal, R.N. Arora, Rajan Sabharwal, Rajesh Tyagi, Rajiv Garg, Rajiv Mehra, Rajnish Ranjan, Rakesh Tikku, Raman Kapur, Rani Chhabra, S.C. Singh, S.K. Chandvani, S.K. Puri, S.P. Sabharval, Sandip Sethi, Sanjay Abbot, Sanjay Dua, Sanjay Goswami, Surinder Singh, T.K. Ganju, Usha Sidharthan, V.K. Makhija, Vibha Dutta Makhija, Vikas Mahajan, Vipin Nandvani, Yogesh Malhotra, Advocates.


Judgment Text
A.K. SIKRI, J.


(1)YET another company of Skipper Group led by its anchor Sardar Tejwant Singh is repeating, history. Earlier episode related to the building constructed by the Skippers at Jhandewalan. The main story-line relating to the said episode can be found in Delhi development Authority Vs Skipper Construction pvt. Ltd. and another. JT 1996 (4)SC 679. The Supreme court noted in that case, amongst others, that hundreds of persons were defrauded by Skippers who were robbed of substantial amounts on the basis of fraudulent and false representations made by Skippers. The central theme of present drama remains the same. The property this time is 22 Barakhamba Road. Victims are again the gullible consumers who were shown green pastures. The minor variations in the present episode do not change the main story-line. The result and consequences, therefore, are the same as that of the earlier drama enacted by the Skippers in respect of Jhandewalan property. The persons who had booked space/flats in the proposed building, construction in respect whereof commenced way back in 1970 are still groping in the dark. we do not know whether we have reached the end of the tunnel and there would be light for them at the end of the tunnel. In the process hundreds of suits were filed in this court which started pouring in the 1980s and were decided by the learned Single Judge vide common judgment and decrees dated 5-9-1997 (reported in 1997 VI AD Delhi 357)and most of these plaintiffs have filed the instant appeals which we propose to decide by this common Judgment.


(2)IN order to appreciate the complex and intricate puzzle which required to be solved in these cases, it would be first necessary to take stock of the facts which are material and have bearing on the final results. After all, we are hearing these appeals against the aforesaid impugned judgment dated 5-9-1997 of the learned Single Judge wherein the learned Single judge has stated the relevant facts. Before the judgment was rendered by the learned Single Judge, the matter was considered by a Committee of two retired judges of this Court constituted by orders passed in one of the suits before the learned Single Judge. Detailed and exhaustive reports of the Committee, interim as well as final, also contain meticulous details.


(3)THE premises in question is 22 Barakhamba road, New Delhi (hereinafter to be referred as Skipper tower'). It was owned by six persons/groups of persons having share of 1/6th each. The share of each person/group with further sub-division of respective shares belonging to the members of each group is as under:


(i)


Shri Om Prakash


1/6th



(ii)


Shri Atam Prakash


1/6th



(iii)


Shri Vijender Singh


1/6th



(iv)


Shri Rajinder Singh


1/25th


Shri Jitender Singh


1/25th


Shri Anil Gupta


1/25th


Smt. Kushal Wati


1/25th


Smt. Pushpa Gupta


1/50th



(v)


Shri Padam Singh


1/24th


Smt. Gayatri Devi


1/24th


Shri Madhukar Singh


1/24th


Shri Diwakar Singh


1/24th



(vi)


Smt. Savitri Devi


1/30th


Smt. Vimla Devi


1/30th


Smt. Memo Devi


1/30th


Smt. Vidya Mati


1/30th


Smt. Santosh Bala


1/30th


(4)THE ownership of the aforesaid persons in this premises is not in dispute. Skipper Sales Pvt. Ltd. (hereinafter to be referred as ' the Skippers')entered into Agreements in the years 1976 and 1977 with these owners for the purchase of the property. However, thereafter in the year 1981 Collaboration Agreement was executed between the Skippers and Mr. Vijender Singh, one of the co-owners modifying earlier agreement dated 24-6-1977. Similar agreements were entered into with other co-owners. By virtue of these agreements the skippers acquired construction rights on the plot on a space sharing basis. The genesis of these agreements is that the Skippers, in addition to making payment of certain amounts to the owners, also agreed to allot some space to these owners in the buildings proposed to be constructed. It is not necessary to give details of these Agreements at this stage. This aspect would be considered in detail while dealing with the entitlement of the owners for space in the building eventually constructed. For, many allottees are crying foul and challenging the very edifice of these agreements and/or entitlement of the owners over the space.


(5)AFTER entering into the Agreement (s)with the owners, the Skippers advertised the proposed construction and solicited the buyers. The intending flat buyers approached the Skippers and started booking the space/fiats. Agreements for this purpose were entered into between the Skippers and the intending purchasers (hereinafter to be referred as 'flat buyers'). These bookings which started in the year 1976 went on for a long period and many booked the flats even after litigation between the owners and the skippers as well as between certain flat buyers and the skippers, on filing the suits in this Court. Admittedly, the space thus booked by the Skippers is much more than the space available in the building. It is this unprofessional, unethical and illegal act of the Skippers which learned Single Judge described as "against business ethics", has given rise to the problems posed in these cases.


(6)LITIGATION started with the first suit filed by Mr. Vijender Singh and his family, one of the co-owners of the premises. According to them, after the Agreement dated 3-11-1976 was entered into between the parties it was the responsibility of the Skippers to complete the complex and allot flats to various agreement holders. The Skippers had failed to complete the building in time. The Skippers were also not allotting the space to them. Therefore, suit for specific performance was filed. Damages were also claimed for non-completion of the building in time and for allegedly committing the breaches of the Agreement entered into between the parties. Pew orders were passed in this case. Reference to these would be made at the more opportune stage. what is relevant to mention now is that an injunction order was given by the Court directing the Skippers not to allot space to any other flat buyer. This resulted in filing of various suits by the flat buyers, when these suits started pouring in the graveness of the problem which these cases posed was realised. It related to the completion of construction and allotment of the space to flat buyers. The learned Single Judge decided not to treat these suits as suits of specific performance simplicitor which could be dealt with separately, and rightly so. Order dated 1/10/1991 was passed in Suit filed by Mr. vijender Singh thereby appointing a committee of two retired Judges of this Court and formulating questions which the Committee should look into and submit its Report and suggestions on those questions. It would be apposite to reproduce this order dated 1/10/1991


"there are a number of flat buyers who claim that they had paid huge sums of money to the defendants for flats in the building known as Skipper Bhawan 22, Bara khamba Road, New Delhi. The money is alleged to have been paid more than a decade back but the possession of flats has not been given. In view of the magnitude of the problem, the nature of enquiry involved in the matter and keeping in view the facts that usual method to resolve the matter will be extremely time" consuming it will be in the interests of Justice and for the benefit of all concerned if a Committee is appointed to go into the controversy of sale of flats by the defendants to different persons. Accordingly, I appoint Justice H. L. Anand and. Justice D. R. Khanna, retired Judges of this Court as the Committee for the above purpose Justice H. L. Anand will be the Chairman of the Committee. without prejudice to the power of the committee, I would like the committee to go into the following questions;-1)which of the flat buyers are entitled to possession of flats and the extent of the area which is to be handed over to them. 2)whether in the present state of the building, it is possible to hand over the possession of the flats to the flat buyers?in case it is possible to hand over the possession of the flats the Committee will report and seek appropriate orders of the Court. In case it is not possible to hand over the physical possession, the committee will demarcate the areas to which the flat buyers are entitled on the plan of the building. 3)The Committee will make all possible steps for securing the completion certificate of the building. However, in case there are financial implications involved, the Committee will seek appropriate directions from this Court. 4)In the event of the Committee's finding that the total area sold is more than the available area, in that case the committee will suggest to the Court methods for equitable allocation of the space to the flat buyers. The Committee will give its report and suggestions within two months from the date it starts functioning. It will be open to the Committee to examine the records of the defendants in order to arrive at a Just conclusion. The staff of the defendants will be duty bound to render all assistance to the committee. A room will be set apart by the defendants in the aforesaid building for the deliberations of the Committee. The Crime Branch will furnish photocopies to the Committee of the records seized by them. The flat buyers or the persons who claim to be. flat buyers or their representatives of counsel will be entitled to appear before the Committee and place their points of view. The Committee will. be assisted by mr. M. S. Vinaik, Local Commissioner. The committee will start funtioning from 21. 10. 1991. Both the members of the Committee will be paid a sum of Rs. 15,000. 00each in the first instance to be borne by the flat buyers on the one hand and the defendants on the other hand in equal proportions. The defendants will submit to this Court the list of flat buyers with the total constructed area including the extent of f. A. R. covered area component and super area component for each flat the entire building. The defendants and the association of flat buyers in question will also give dates of various agreements and dates of cancellation, if any. The information will be furnished before the Court on or before the next date. The matter to come up before the Court on 11. 10. 1991 ".


(7)BY another order dated 20th November , 1991 passed in Suit No. 324/90 and other connected suits learned Single Judge ordered that legal possession of the Skipper Tower shall stand transferred to and shall be deemed to have been assumed by the Committee. This committee without finishing the lask resigned in april,1992. Thereafter, by another order dated 15/05/1992, this Court reconstituted this Committee by appointing Justice Avadh Beharl Rohtagi and Justice charanjit Talwar, two retired Judges of this Court. This newly constituted Committee held deliberations from time to time. Notices were given to all the flat buyers. Flat Buyers Association, namely, Skipper bhavan, 22 Barakhamba Road, Flat Buyers Association which claims to have the membership of the majority of the flat buyers also represented. Representatives of the Skippers too took part in the deliberations/hearings. Public notices were issued as well in. the leading newspapers in Delhi, Bombay, Madras and Calcutta Inviting claims. Many of the parties represented through their counsel. List of the flat buyers was compiled with the assistance of the parties present and appearing before the Committee and their claims scrutinised. All except 27 parties lodged their claims before the Committee. Fresh individual notices were issued to 27 parties out of which 14 flab buyers submitted their claims. Thus only 13 flat buyers did not respond whose claims were rejected. The Committee also appointed Mr. H. R. Laroya, Ex-Chief. Architect of cpwd to assist the Committee. Mr. V. P. Gupta. Chief architect of NDMC, Chief Fire Officer of Delhi, 'fire service, Shri J. N. Rohtangi, Chief Engineer (Electrical)NDMC were also summoned. As many as 55 meetings were held on different dates from 30-5-1992 to 30-12-1993. The Committee initially submitted interim report dated 6/01/1993 setting out therein, inter alia, the task assigned to it by this Court and work undertaken and accomplished by the Committee by that date. Thereafter, after completing herculean task, final report dated 18/01/1994 was submitted by the committee. This Report in minute details suggested the allotment. of specific spaces in the Skipper Tower to each of the co-owners of the premises as well as flat buyers.


(8)BEFORE proceeding further, it would be proper to scan through and make note of the salient aspects of the Report in some detail. This exercise is necessary as would become amply clear when we approach the nuances of the issues posed by the appeals. FINAL RIPORT OF THE COMMITTEE APPOINTED BY The Committee found that the controversy had basically two parts


" (i)Determination of the extent of space in the building and completion of certain pending formalities in relation thereto; and


(ii)Determination of the flat buyers, their claims, payments and settlement of these".


(9)BOTH these aspects are dealt with by the committee with precision.


(i)Insofar as determination of extent of space is concerned, the - Committee took into consideration the space available in three basements in the building (although there is some controversy over the nomenclature of the basements as noted by the committee also), and the area available above the ground; the building consisted of ground floor and 12 additional floors, while determining the area the committee went by the report of Mr. Laroya as well as the submissions made by Mr. V. P. Gupta , Chief Architect of NDMC. It also took into consideration the "common facilities" as well as unauthorised area i. e. certain area constructed on 12th floor in excess of area permissible to be built under the existing bye-laws and noted that as this area may have to be demolished, it could not be allotted.


(10)WHILE considering the question of allotment of the available space to the flat buyers the Committee noted that total area sold by Skippers was much more than area available in Skipper Tower for allotment. Therefore, it was not possible to allot space in the building to all the claimants. The most difficult task according to the Committee was to suggest the methods for equitable distribution of the available space to the flat buyers. The Committee pointed out that the controversy was not an ordinary one. As against the limited space in the building, there were a large number of claimants, who had booked space at different points of time and paid moneys for buying space at different rates per sq. ft. at different times. Further, they have paid different proportions of the total amount due and payable by them, and these amounts have been paid at varying points of time. Therefore, a large number of facts, circumstances and parameters have to be gone into and considered before a reasonable and Just scheme for equitable allocation of space is formulated.


(ii)The Committee decided to adopt the norm of "first come first serve" which is an accepted and established norm. However, it was simultaneously observed that though the flat buyers had booked areas vide similar purchase agreements, payments made by individual buyers were vastly differing. As per the agreement (s)entered into between the Skippers and the flat Buyers, the buyers were required to pay 95% of the basic agreement price and also the Landdo conversion charges. Fire Fighting Charges and Electrification charges demanded by the Skippers. Some flat buyers had made the payments of more than 100% of the consideration while others had made payments of lessor amounts. The Committee, therefore, suggested that the principle of "first come first serve" would be applicable only if a flat buyer had paid the full price or more in respect of his flat and those who had paid less price their entitlement should be proportionately reduced. This suggestion is contained in the following words:


"3. 15. we, therefore, feel that subject to the principle of 'first COME FIRST serve', a flat buyer should be entitled to the area/space booked by him if only he has paid full price and more in respect of his flat. In case any flat buyer has paid less than the full price, his entitlement should be proportionally reduced. For example, if a flat buyer has paid 90% of the said full price, he should get 90% of the original booked area".


(11)THE Committee thought, that it would be inequitable to equate the two groups, namely, the group which had paid full price and even more for the flats booked by them with the group which had defaulted in making payments. Suggestion of the flat buyers that they should be allotted full space booked by them as they were prepared to make balance money now was rejected by giving the following reasoning. "


"3. 16. we may mention here that it was argued by some of the flat buyers that they were prepared to pay the balance money now and that they should be allotted the full space booked by them. In the case of wllliam Jacks,for example, payment' of Rs. 31,75,000/~was made out of a total cost of Rs. 65 ,85,000/ -. we have accordingly allotted them about 4,800 sq. ft. of area though their booking was for 10,000'sq. ft. Though William Jacks, and others like him are prepared to pay now, we cannot accept their offer. The reason is that the contribution they made to the building was represented by the amount they paid. The fruits that they want to reap now in the building which came up with the money paid by others are certainly something to which they are not entitled in equity in our opinion".


(12)THE Committee was also conscious of the "common areas/facilities" like common staircase, common lifts, corridor passages, frontal approach and the other entries and exits, refuge area etc. It concluded that it would be reasonable to treat 30% of the area above basement as the common area and 40% of basement area as common area. Thus, according to the Committee, net physical area to be given to flat buyers should be 70% of their entitlement on Ground Floor and above and 60% of the available gross area in the basement, while doing so the Committee noticed that the Agreements between the Skippers and the Flat Buyers mentioned the term "covered area" to mean "the area under internal walls, periphery walls and the columns comprising the flat plus proportionate share of the common area" and therefore, the common area had to be set-aside while making allotment of net physical area. It was noted that although in some cases allotment letters did not define the term "area" differently, however, it was implicit in the Agreement (s)that these claimants will, like all others, share in the area set aside for common facilities. On the aforesaid reasoning the recommendations of the Committee on the scheme of allotment was as under:


" (a)Allocation must be made on 'first come First serve basis' and


(b)To arrive at actual and net area entitlement of a flat buyer, the area booked by him shall be reduced;


(i)by appropriate percentage depending upon the proportion of payment made by him till date to the said full price;


(ii)by 30% towards share in common areas if the area is booked on a floor above the ground, or by 40% if the area is booked in the basements".


(13)THE Committee also fixed cut-off date of 31/12/1986 and suggested that all persons who had booked space/area before this date be allotted space/area and on that basis worked out the area to be allotted to each flat buyer. The list of the allotment in upper ground floor, first to 10th floor is appended as Annexure-I to the Report. The commendable task accomplished by the Committee would be clear from this list made with exactitude containing every possible detail. The list contains floorwise allotment in respect of each flat buyer who has been allotted the flat as well as the date of booking, area booked, cost payable as per the Agreement, actual cost paid with percentage of cost paid. It also mentions the actual area allotted, physical area allotted and even the flat numbers. Significantly detailed lay out plan in respect of each floor is prepared as Annexure-J wherein the flats are earmarked by giving numbers and this layout plan also contains the names of allottees.


(14)THE Committee was also conscious of the possible claims which could be made by those flat buyers who booked the flats after 31/12/1986 as well as possible mistakes which could have crept in, notwithstanding such elaborate and careful exercise. Thus it mentions that after making the allotment in the aforesaid manner area of about 4000 sq. ft above the ground level and 4000 sq. ft in the lower basement was 'surplus and the Committee placed this area at the disposal of this Court with recommendation that it could go to flat buyers who booked space after 31/12/1986 in the order of seniority of booking till all the surplus area is exhausted. To facilitate the task of the Court the Committee even prepared two lists of flat buyers who booked space after, 31/12/1986. Annexure-G is the waiting list of those buyers who purchased space on floors above the ground floor and annexure-H is the list of those flat buyers who booked space in basements.


(15)IT goes to the credit of the Committee and exemplifies application of mind to minutest details, as the Committee even recorded that in making the allotment in the aforesaid manner it was unable to accommodate 90 flat buyers and suggested even alternate method to accommodate every person by leaving it to the court to take final decision. This is so stated;


"3. 28. There are about 90 flat buyers who have claimed flats/spaces before us and to whom we have been unable to accommodate in accordance with our proposed scheme, lists of these flat buyers (in order of seniority)are enclosed as aforesaid as Annexure-G and annexure-H. If we were to allot space to all the 379 claimants in the building, the area that will come to the share of each person will be approximately 55% i. e. a flat buyer who is entitled to 100 sq. ft of space will get for his exclusive use about 55 ft. of net physical area. This may be another method of allotment. Since, by order dated 1/10/1991, we have been asked to suggest 'methods' of allotment, we will be failing in our duty if we fail to mention this".


Part-IV of the Report deals with certain special cases, namely, that of the owners, as well as certain other groups who were flat buyers in view of peculiar facts of these cases. These include the Jain shudh Vanaspati Group, Punjab and Sind Bank, william jacks and Co. (India)Ltd. , Rajiv Gupta Group, New Bank of india, Anand Metal works and Ujala Leasing and also certain flat buyers in possession. we are not discussing here the suggestions of the Committee in respect of these special cases to avoid repetition thereof as these aspects need to be determined separately by us and the suggestions of the Committee can be appropriately referred to and dealt with at that stage.


(16)AFTER making the allotment in the aforesaid manner, The Committee took note of what needs to be done. In Part-V of the Report claims of Land and development Office (Landdo)and NDMC have been dealt with. Suggestions for obtaining NOC from Chief Fire officer, clearance from the Chief Engineer (of NDMC), lift Fitness Certificate, final sanction from NDMC etc. are also given. The Committee also noted for this purpose that certain constructions were also to be carried, out. For making payments to these authorities and for keeping the tasks yet to be done, the Committee recommended that flat buyers should be asked to contribute the amount required to be spent for the aforesaid purpose and proposed a sum of Rs. 250. 00per sq. ft of area allotted to each flat buyer. It was also suggested that this task be completed by the same or any other Committee under the specific authority Issued by the Court in this regard. The Committee also suggested the manner In which the task to be completed could be implemented. The impugned judgement:


(17)THE Report was submitted to the Court. Many persons filed suits after the submission of this report. They had, of course, appeared before the committee as well. Some of the flat buyers challenged the method adopted by the Committee and filed their objections,whereas many flat buyers accepted the Report of the Committee. However, the learned Single Judge instead of proceeding ahead with the matter taking the report of the Committee as the starting point and the objections filed to the said Report, decided to charter another course. It was decided to start the exercise, almost afresh, by treating each suit as suit for specific performance which was to be decided on its own merits. Therefore, the learned Single Judge proceeded to record evidence in all the pending suits and decided the suits on the basis of the evidence available in each case. He came to his own conclusion about the space available in the building i. e. Skipper Tower. Those who did not produce or did not lead evidence or did not appear, their suits were dismissed. Those who did not file any suit, although raised claim before the committee, their claims were rejected for want of specific suits. The claims of all the buyers who booked spaces in the basements, were rejected and their suits dismissed on the ground that no allotment could be made in the basement as according to the learned single Judge, upper basement was meant for storage while other two basements were for car parking. The learned Single Judge also accepted the position that the area booked by the buyers was more than the area available. In making the allotment the learned Single judge adopted the formula, namely, "first come first serve" simplicitor and not in conjunction with the extent of payment made. He did not make distinction between those who had made full or more payment and those who had defaulted in making the payment, while directing space to be allotted to even those plaintiffs who had not made full payment and decreeing their suits, the learned Single Judge directed payment of outstanding amount with interest at the rate of 18% per annum. The impugned judgment also directs full area as per the Agreement to be allotted to such persons whose suits have been decreed without making any adjustment relating to the common area. In this manner adopting the aforesaid criteria each case has been considered and allotment made floorwise viz. on ground floor and above and at the end of Judgment the result of each suit is stated i. e. specific area which is allotted to each flat buyer and the amount which is to be deposited by the said flat buyer. One fallout of this methodology is the rejection of many cases for want of space to even those who had made 100 per cent or more than 100 per cent payment. The direction is to return their money. Not by the Skippers but from the pool sought to be created from the deposits to be made by the flat buyers. Separate list of the persons whose claims have been rejected is also given.


(18)FOR completing the uncompleted task, the learned Single Judge has directed payment by each flat buyer who has been allotted the space at the rate of rs. 3250/-per sq. ft with the direction that this payment would cover renovation and out of this fund those claimants who could not be accommodated and whose suits have been dismissed would be refunded the monies paid by them. However, no concrete basis for arriving at the figure of Rs. 3250. 00per sq. ft is spelt out in the impugned Judgment. It may be mentioned here itself that many appeals against the impugned Judgment are directed only against the direction to pay at the rate of Rs. 3,250. 00 per sq. ft. In fact with the exception of negligible allottees, every person is aggrieved by the direction for payment of Rs. 3250. 00per sq. ft. Therefore, every appeal which is filed challenges at least this direction including by those persons who have been allotted the space and are satisfied with the allotment. To be fair to the learned Single Judge it may be stated that reference is made to the Report at various places, particularly in respect of those issues where the approach is common. It is for this reason that in many cases the allotment of space by the committee as well as by the learned Single Judge coincide. The details in this respect would be mentioned while dealing with individual cases.


(19)THE Gist: before proceeding further, let us have the gist of the recommendations of the Expert Committee as well as the directions contained in the Judgment of the learned Single Judge to facilitate further analysis while examining the various issues to be decided in these appeals; report OF THE COMMITTEE.


1. Scheme of allotment (i)First-cum-first serve Allotment in order of priority of booking. (ii)Proportionate reduction of entitlement based on payments made by flat buyer. (iii)Adjustment for common area component.


2. The Committee with assistance of appointed Architect Laroya determined total common area floor-wise in the building (Page 13 of report). Common area 30% in "floors above ground. Common area 40% in basements. Adjustment for common area in the said principle of allotment on this basis.


3. The Committee determined that by the time it went into the matter 95% of price was payable by each buyer. Price including basic price, Landdo charge @ 74 per sq. ft. Fire fighting charge @ ra. 52. 5 per sq. ft. electrification charge (c)Rs. 9 per sq. ft. ; the remaining 5% payment was payable on delivery of possession.


This was the standard adopted for determining whether fiat buyer paid requisite cost. If this price was not fully paid,proportionate reduction was made in his entitlement in the said principle of allotment.


4. In 90% of agreements of flat buyers, covered area defined to include proportionate area of common area. In only 10% cases, covered area was defined to include carpet area, half the width of interior/boundary wall.


The Committee found even in this 10% cases it was implicit that area mentioned in the agreement included proportionate share in common area, because flat buyer would use common area. Significantly, the said 10% cases related to fiat booking of year 1979 or earlier.


5. The Committee accommodated 289 flat buyers out of 379 claims, leaving out 90 claimants. It also left unallotted 4000 sq. ft. in floors above ground floor and 4000 sq. ft. in basement. This Was left to meet any mistake that might have occurred or any allotment if court otherwise thought.


6. The Committee also found that if every claimant was accommodated, flat buyers would get 55% of his entitlement.


7. Tne Committee recommended that Rs. 250 per sq. ft. should be paid to complete the building.


8. The Committee opined that persons in occupation in violation of court orders are to be dispossessed. JUDGMENI OF LEABRNED SINGL JUDGE (i)First-cum-first served principle adopted, but ho adjustment made for "deficient payment. while decreeing the suit, directed payment of outstanding amount with 18% interest. (ii)No adjustment made for common area-Full area as per agreement is decreed. (iii)No. allotment made in basement on the plea that upper basement is fit for storage and other 2 basements are for car parking. (iv)Allotment restricted on ground floor to 7960 sq. ft out of 9054 sq. ft. on the plea of common area but no reason given as to how this figure is arrived at. (v)Claimants who could not be accommodated, have been directed to be paid out of fund created from moneys payable by successful allottees. Directed payment by each flat buyer of rs. 3250/-per sq. ft. , to cover renovation and to pay for unsuccessful claimants.


(20). IN the hearing in these appeals started, it was felt appropriate to hear the parties on the general and fundamental issues raised on which ultimately would depend the fate of individual cases. After hearing in detail on these fundamental issues, we are of the view that following points need to be adverted to:


I. Categories of litigants / allottees. (i)Those who appeared before the Committee, filed suits and appeals. (ii)Those who appeared before the Committee, but did not file suits. However; (a)Piled objections to the Committee's report. (b)Filed appeals or CMs for impleadment pursuant to public notice issued during course of hearing, of the appeals. (iii)Those who filed the suits but have not filed appeals. (a)Single Judge allotted area and it is accepted. (b)Single judge dismissed the claim and it is accepted. (iv)Those who did not respond at all i. e. neither appeared before the Committee nor filed any suits or appeals.


II. Availability of Area: (i)Extent of area available. (a)while determining the area whether carpet area or super area is to be taken into consideration? (b)whether 11th and 12th floor are available for allotment? and (c)whether basements are available for allotment?


III. Scheme for allotment after doing the exercise of availability of area and the persons entitled for allotment i. e. what method should be adopted to allot the space. (i)What is the cut-off date which should be fixed for determining eligibility for allotment? (ii)If a person booked the space before the cut-off date but sold it to another person after the cut-off date with the permission of the builder, whether the new allottee should be given seniority from the original, date of booking?


IV. How to deal with those cases who were allotted the space and given possession also after the stay order passed by the Court. (a)Those who had booked the space before the cut-off date or before the date of stay but given possession after the stay. (b)Those who booked the space after the cut-off date or the stay order and also given the possession thereafter.


V. Special Cases : incidenial ISSUES


VI. Suit/appeal of Land and Development Officer regarding charges payable to it.


VII. Modalities for completion of the building. (a)whether a Committee should be appointed who should work under the supervision of the Court as suggested by the flat buyers or it should be given to the builder with the supervision of certain other persons and the court as suggested by the builder? (b)whether the flat buyers should be asked to contribute! some money for payment of Landdo charges, NDMC charges and for the completion of the building? If so, what amount per sq. ft. should be charged from each person?


VIII. what directions , if any, against the builder are required to be given?


(21)COUNSEL for the parties were heard in detail on the aforesaid aspects. At this stage it would be appropriate to point out that the Skippers remained unrepresented before the learned Single Judge. However, they put in appearance in these appeals through Mr. Rajiv Garg, Advocate and made their submissions on the aforesaid aspects. They have submitted their statements containing proposed scheme of allotment contending that if their proposal is accepted every flat buyer would be allotted some space in the building.


(22)EACH appeal, thereafter, was heard on its merits noticing the facts in each such appeal. These appeals specifically question the direction in the impugned Judgment to deposit a sum of Rs. 3250/-per sq. ft. Some appeals are by those who have not been allotted any space by the learned Single Judge or have been allotted lessor space than what they claim to be their entitlement. They argued for the allotment of space. The fate of many of these appeals would depend upon the decision on the Issues formulated above, however, in many cases factual errors have been pointed out because of which they are denied the allotment. These specific cases shall be considered after we answer the issues formulated above, which we proceed to start now. I catgories of litigants/allottes.


(23)THE first question that needs to be determined is who are eligible for allotment i. e. to finalise the list of those persons who should be allotted space in the Skipper Towers.


(24)IT is a matter of common knowledge that when the order dated 1/10/1991 was passed by the learned Single Judge in Suit No. 728/87 and connected suits, few persons had approached and filed the suits. However, while passing the order dated 1/10/1991, the learned Single Judge sensitized the magnitude of the problem by observing that there were number of flat buyers who had paid huge sums of money to the skippers for flats and the said order appointing the committee was passed keeping in view the fact that usual method to resolve the matter would be extremely time consuming, it will be in the interest of justice, and for the benefit of all concerned if a Committee is appointed to go into the controversy of sale of flats by the Skippers to 'different persons'. Even the questions referred were generic in nature and were not limited to the entitlement of those persons who had filed the suits. Otherwise there was no necessity to constitute the Committee and refer the larger questions touching upon the entire gamut of the issues involved, not only in suits before the learned Single Judge but anticipated ones also. First question which the committee was to decide was framed in the following manner:


(25)WHICH of the flat buyers are entitled to possession of flats and the extent of area which is to be handed over to them'. Likewise question No. IV was paraphrased in the following manner, reflecting the whole gamut of the scope of the enquiry : 'in the event of Committee's findings that the total area sold is more than the available area, in that case the Committee will suggest the court methods for equitable allocation of space to the flat buyers'. Thus the Committee was assigned the task to find out which of the flat buyers were entitled to possession and the extent of area to be handed over to them and what would be the method of equitable allocation of space to the flat buyers. It is stated at the cost of repetition that the enquiry was not limited to those who had filed the suits.


(26)THE procedure adopted by the Committee, in conformity with the aforesaid terms of reference also fortifies this. The Committee had given advertisement in fche newspapers, invited claims from all the flat buyers, received claims, prepared list of the flat buyers after collecting datas from the various sources. 379 claims were lodged by the flat buyers. The committee got hold of the list of flat buyers prepared and signed by S. Tejwant Singh, which was referred to as 1986 list and which was framed by the Skipper as well as the Association. After examining that list a total of 379 claims was finalised, the Committee found that all except 27 parties have lodged their claims before it. Fresh individuals notices to these 27 parties were given and 14 claims were received. Thus only 13 persons did not respond and except these 13 persons. all persons lodged their claims and/or participated in the deliberations of the Committee held on various dates. The Committee has considered such claims while submitting its report.


(27)IT may be mentioned at this stage that many of these flat buyers filed the suits subsequently. However, there are many who did not file the suits but only filed their objections to the recommendations of the Committee. The learned Single Judge, however, dealt with only those cases who had filed the suits and claims of all others who had not filed the suits, were not considered. Many such persons have filed appeals challenging this approach of the Learned Single Judge and alleging that when they had lodged their claims before the Committee pursuant to advertisement/notices and the Committee considered their cases and made recommendations, they nurtured bonafide impression that they would 'be entitled to the space without filing formal suits. They submitted that, in any case, their appeals could be treated as suits and they were prepared to pay the court fee payable on the suits. It may also be relevant to point out that after hearing these appeals for some time, it was decided by this court to give one more opportunity to those who had not come in appeal to make their submissions if they wanted to make and vide order dated 7/11/2000 public notice of pendency of these appeals was directed to be given. The public notice appeared in the Time of India and Navbharat Times dated 19/11/2000. Pursuant to that many persons moved CMPs for their impleadment with the prayer that these CMPs be treated as suits, their claims be considered on merits and they are ready to pay the necessary court fee.


(28)AFTER giving our thoughtful consideration, we are of the view that all those who submitted their claims before the Committee should be considered on their merits. The claims should not be rejected merely because suits were not filed. The learned Single Judge was not right in limiting the consideration in respect of those persons only who had filed the suits. This opinion of ours is influenced by the following considerations:


1)Order dated 1/10/1991 passed by the learned Single Judge and the terms of reference mentioned therein gave power to the Committee to consider the cases of all the flat buyers for allotment/equitable allotment of the space.


2)This order was challenged in appeal. The division Bench affirmed this order and dismissed the appeal. The learned Single Judge was bound by the interim order dated 1/10/1991 passed earlier in the suit which was even the stamp of approval from the division Bench.


3)The Committee invited all the flat buyers to lodge their claims and considered the claims on merits. Therefore, there was legitimate expectation in the minds of the flat buyers that once the Committee had been appointed by this court with directions to look into the claims of all flat buyers and they succeed before the Committee, they would be allotted the space. The court was, thereafter, required only to accept Report with or without modifications having regard to the objections which were filed by some flat buyers.


4)In a matter like this where the Skippers created problems for the flat buyers by booking the space more than the available space, the court cannot confine itself to the case of those only who filed the suits, what would be the position if, in respect of one particular flat the Skippers entered into agreement with two or more persons? If only one of them files the suit for specific performance although he entered into agreement with Skippers at a later date and paid lesser money than that was paid by another person who entered into an agreement at an earlier date and paid full consideration before the agreement? would it be equitable in such circumstance to decree the suit of the person who had filed the suit, ignoring the claim of the person who failed to do so. Answer is obviously, No. This example in respect of one flat can be magnified in the instant case as similar problem would emerge in respect of other flats. Therefore, it was but proper, in a situation like this, to consider the claims of all persons even when the claims of those flat buyers who filed the suits had to be decided. Otherwise, it would create inequitable results.


5)Even technical problem can also be taken care of After all, the Committee considered the cases of all the claims and submitted the Report. Depending upon the outcome of the Report and the ultimate decision thereon by the court with modifications, if any, those claimants who are held entitled to allotment of the space could be given the space subject to their filing requisite application with court fee as if it was a suit filed by such persons.


6. The approach of the learned Single Judge vide order dated 1/10/1991 and confirmed by the division Bench was, therefore, reasonable, just and proper. It was adopted with the purpose of doing justice in the broader sense of the matter keeping aside narrow and pedantic approach. situations may arise when, to do complete justice in the matter courts have to ignore the technicalities of law. As aforesaid, even if claims of those who filed the suits had to be decided, it could not be done in isolation and without considering the entire gamut, amplitude and peculiarity of the nature of problems being faced in such cases. As is clear by now that these cases relating to this building have posed a peculiar problem. It has to be dealt with by adopting an approach which is Justice oriented. Imparting Justice has to be the prime consideration with the growing complexity of social relations, new types of problems would come in the courts. There may not be perfect precedent to follow. If following an old principle yields wrong results or leads to injustice, occasion would be ripe to formulate new principle. New-situations demand new solutions. By treading the beaten path, one may not reach the goal. The goal is to do justice. In such situations social engineering has to be the guiding factor. It would be opportune to quote from the book 'the Nature of the Judicial process' which is a compilation of the Storrs lectures delivered by Benjamin N. Cardozo at Yale University quoting various eminent Jurists, Cardozo makes the following remarks:"it is true, I think, today in every department of the law that the social value of a rule has become a test of growing power and importance. This truth is powerfully driven home to the lawyers of this country in the writings of Dean pound. "perhaps the most significant advance in the modern science of law is the change - from the analytical to the functional attitude" (Refer:pound, "administrative Application of Legal standards" Proceedings American Bar association, 1919, pp. 441, 449). "the emphasis has changed from the content of the precept and the existence of the remedy to the effect of the precept in action and the availability and efficiency of the remedy to attain the ends for which the precept was devised. (Refer. p. 451 , cf. Pound, "mechanical jurisprudence. " Columbia L. R. 603. Foreign Jurists have the same thought:"the whole of the judicial function," says , Gmelin, (Refer:sociological Method," transl. , 9, modern Legal Philosophy Series, p. 131.)"has. . . been shifted. The will of the State, expressed in decision and judgment is to bring about a Just determination by means of the subjective sense of Justice inherent in the judge, guided by an effective weighing of the interests of the parties in the light of the opinions generally prevailing among the community regarding transactions like those in question. The determination should under all circumstances be in harmony with the requirements of good faith in business intercourse and the needs of practical life, unless a positive statute prevents it: and in weighing conflicting interests, the interest that is better founded in reason and more worthy of protection should be helped to achieve victory. " (Refer: gmelin, supra; cf. Ehrlich, "die juristische Logik," p. 187; Duguit, "les transfomations du droit depuls le Code napoleon,"transi. , Continental Legal hist. Series, vol. XI pp. 72, 70.)"0n the other hand, " says Geny, (Refer;0p. cit. , vol II, p. 92 sec. 159)"we are to interrogate reason and conscience, to discover in our inmost nature, the very basis of justice; on the other, we are to address ourselves to social phenomena, to ascertain the laws of their harmony and the principles of order which they exact. " And again: (Refer;vol. II, p. 91)"justice and general utility, such will be the two objectives that will direct our course. "


(29)IT may also be added that one has to be more liberal while dealing with the procedural aspects of the case. In the field of procedure, major changes have been witnessed over a period of time. The tendency today is in the direction of a growing liberalism. Cardozo in the aforesaid lectures, taking note of this tendency has also stated:


"the new spirit has made its way gradually; and its progress, unnoticed step by step, is visible in retrospect as we look back upon the distance traversed. The old forms remain, but they are filled with a new content, we are getting away from what Ehrlich calls "die spielerische und die mathematische entecheidung", (Refer:ehrlich, "die juristische Logik," p. 295; cf. pp. 294, 296.). The conception of a, lawsuit either as a mathematical problem or as a sportsman's game. Our own wigmore has done much to make that conception out of date. (Refer:treaties on Evidence), we are thinking of the end which the law serves, and fitting its rules to the task of service. "


(30)WE must adopt an active posture and view in a larger perspective the functionalism of legal humanism. If the situation demands adoption of a broad principle to meet the ends of justice, the court should not feel shy in adopting the same. ' The history of law is the history of the effort to mould legal institutions and doctrines to meet the felt necessities of each period in the Nation's development'. Access to justice Is the demand of the day. The problem of access to justice has many dimensions. What is crucial is that people should be the participants and beneficiaries in the administration, of justice. The Supreme Court has already given new dimension to the access Jurisprudence in expanding the principle of locus standi which led to the introduction of public interest litigation in this country. Cappelletti clarified his view on the crucial aspect of access to court in the Administration of justice thus:


"the right of effective access to Justice has emerged with the new social rights. Indeed, it is of paramount importance among these ,new rights since, clearly, the enjoyment of traditional as well as new social rights presupposes mechanisms for their effective protection. Such protection, moreover, is best assured by a workable remedy within the framework of the judicial system. Effective access to justice can thus be seen as the most basic requirement-the most basic 'human right'- of a system which purports to guarantee legal rights. (Australian law reform Commission, Discussion Paper No. 4, p. 3). "


(31)ONCE we are able to find the way that too within the existing norms, of course, by giving it a new meaning, and more so when it advances the justicing process. there should not be any difficulty in adopting the same. Afterall it has also to be seen in the present case that it is not in the nature of adversary litigation any longer. we are dealing with class action.


(32)IT is not necessary to indulge in a detailed jurisprudentlal exercise. Our purpose would be served by mentioning that even our own Supreme court has shown the path by holding repeatedly that the procedure is the hand maid of Justice. It is to facilitate Justice and further its end. It-is the means designed for furtherance of Justice and not to frustrate the same. (Refer: Sangram Singh Vs. Election Tribunal air 1955 SC 422.)


(33)IT may be interesting to note at this stage that the Committee in the concluding paragraph of its report itself indicated the peculiar nature of the problem, the approach adopted by it and advised the flat buyers not to indulge in conventional litigation. This is what it observed;


"our task was both exciting and innovative. We are not required to try suits for specific performance, as we have said. Our commission was to facilitate a Just settlement between hostile parties. Out of the conflicting and opposing claims we had to find what was just and equitable. In the final analysis, we have tried to make the best of a bad bargain. we have reached the end of our report. Before we close we will added a word of advice to the flat buyers. The disputes will have to be settled within an openness to compromise on the lines suggested by us or as may be suggested by the court. Because the final word is with the court. But one thing is clear. Conventional litigation will not avail the flat buyers. They should avoid lawsuits. The Poet John Promfret in 1700 wrote: "law-suits I'd shun, with as much studious care. As I would dens where hungry lions are".


(34)IF some of the flat buyers were convinced by the aforesaid advice and did not file individual suits after the recommendation. of the Committee allotting them certain area believing that they would get the same now from the court on the basis of this recommendation, they cannot be faulted with. Rejecting their claims only because they adhered to the aforesaid advice, would amount to causing gross injustice to such persons.


(35)WE may hasten to add that this approach is adopted keeping in view the peculiar nature of these cases and the magnitude of the problem involved. By no means we are suggesting that even in routine problems of trivial types, such procedural requirements are to be given go-by.


(36)WE, therefore, propose to examine the cases of all those who filed the suits; those who appeared before the Committee but did not file suits and filed only objections to the Report; those who filed the appeals without filing the suits; those who filed CMPs for impleadment pursuant to public notice. In nutshell, all those who appeared before the Committee and lodged their claims, their cases for entitlement should have been considered by the learned Single judge. Only those cases of the flat buyers who did not respond at all before the Committee, before the learned single Judge or in this appeal, would not be considered. There is yet another category of flat buyers which needs to be considered. It is those who had filed the suits but have" not filed appeals or application after we gave public notice of these appeals. Such persons may be either those who have been allotted a particular space or those whose claims have been rejected by the learned Single Judge. Inference can be that they have accepted the judgment of the learned single Judge and do not want to challenge the same. Those among these whose claims are rejected by the learned Single Judge and they have not filed the appeals do not pose problem, as one may infer thahat they have accepted their fate and do not want space in the Skipper Bhavan. However, there are certain flat buyers who have been allotted area which is more than the areas/space recommended by the committee. when we are doing the exercise of eligibility of all flat buyers for particular area including challenge to the findings of the learned single Judge, if ultimately we come to the conclusion that in respect of such flat buyers that the recommendation of the Committee was correct, the entitlement of these persons is going to be affected. Sensing this possible outcome in such an eventuality, one of the purposes of giving public notice in these appeals, was to hear such allottees who had not filed the appeals. This would be clear from order dated 7/11/2000 passed in RFA (OS)No. 23/98 which reads as under;


"c. M 294/2000 and RFA (OS)No. 23/98 during the course of hearing of this batch of appeals it has come to our notice that there are parties who may be affected by the final judgment of this court but who are not before the court. This situation has arisen because this is not a routine type of litigation. A large number of parties are involved. For present purposes it may be sufficient to mention that "skippers" is the builder and promoter of a multi-storeyed building at 22, Barakharnba Road, New Delhi. "skipper" had undertaken to construct a large number of fiats in the said building. The flats were offered for sale. There were large number of applicants who booked various spaces/flats in the building and paid substantial amounts to the builder. Disputes arose between the builder and the buyers and the matter came to court. Several parties filed suits against the builder in this court. An association of flat buyers came to be formed which filed a suit in a representative capacity under order 1 Rule 8 Code of Civil Procedure. By an order dated 1/10/1991 this court appointed a committee comprising two retired Judges of this court to primarily ascertain which flat buyers are entitled to possession of flats and the extent of area which is to be handed over to them. The Committee issued public/individual notice to all interested parties and held detailed deliberations. Ultimately the committee formulated its report and submitted it to court.


The grievance of most of the appellants is that the learned Single Judge who ultimately decided the suits brushed aside the recommendations of the committee and adjudicated upon the claims of only those parties who had approached the court by way of suits. It appears that the committee had prepared a final list of persons who according to the committee were entitled to space in the building. On the basis of entire space available in the building, the committee recommended as to how it should be allotted to each party held entitled to allotment of space. According to the appellants the learned Single judge, however, allotted space in the building only to those who had filed suits in court. Rest of the claimants who had though approached the committee but had not filed any proceedings were kept out by the learned Single Judge. Some of such parties have either filed appeals or have moved applications for being impleaded as parties. They submit that their rights are affected by the impugned judgment and decrees and they should be heard. There is yet another class of parties who had filed suits but have not appealed against the decrees passed in their respective suits. They have accepted the decrees. An overall view which the court may finally take in these appeals may affect such dh decrees.


The building is already constructed. The available space is limited and all cannot be accommodated as per their stated claims. In such a situation whatever final decision is taken in this batch of appeals is likely to effect all the claimants of space in the buildings. Therefore, the question has arisen that should the court issue notice to those who have not appealed against the judgment and decree of the learned Single judge as well as to whose who never approached the court or the committee of judges for that matter? If so, are individual notices required or a Public notice in newspaper will be sufficient?


The learned counsel for the parties are unanimous that the court may issue a public notice giving opportunity to all interested parties to place their case before the court. The Public Notice be given through an insertion in the press. It is submitted that individual notices at this stage may neither be practical nor feasible. In this connection it is submitted that the main suit of the association was in a representative capacity under Order I Rule 8 Code of Civil Procedure and initially the entire litigation was being treated as one in a representative capacity under Order I Rule 8 Code of Civil Procedure counsel have invited our attention to the order dated 1/10/1991 passed by the learned Single Judge which was confirmed in appeal. The order shows that the intention was to open the gates for all interested parties.


we are of the considered view that since interests of parties who are not before the court are likely to be affected by the final decision in these appeals, a public notice should issue notifying that interested parties may appear before the court on 28/11/2000 and place their case before the court. we agree with the learned counsel for parties appearing in court that sending individual notices at this stage is neither practical nor feasible.


A public notice as per draft finalised and placed on record should appear by way of one insertion in the Times of India and the Navbharat Times by 19th November, 2000, for appearance in court on 28/11/2000. Mr. Rajiv Garg, counsel for "skippers" is directed to get the public notice published and meet all expenses in this behalf. Mr. Garg submits that he may have to approach the Supreme court for release of funds for this purpose. Liberty is granted to him to approach the Supreme Court in this behalf.


List the case for further hearing on 28/11/2000. The Court Master is authorised to give an authentic copy of this order to col. Jaswant Singh and counsel for the respondent.


(37)HOWEVER, still many have not responded. This has created a piquant situation, what should be done in such cases where the learned Single Judge has allotted them particular space which we consider to be more than their entitlement. If we reduce their space, they may raise legitimate grievance to the effect that something is done at their back. They may also raise the plea that once their suits have been decreed and no appeal is filed against the Judgment and decree of the learned Single Judge even by the opposite party, i. e. the Skippers, said decree has become final and appeals which are pending in respect of other cases, the judgment and decree in cases in which it had become final could not have been interfered with. On the other hand, if these cases remain untouched and such persons are allotted the space more than their entitlement, the claims of others who are found entitled to the space, are going to be affected adversely for want of availability of the space.


(38)AS pointed out above, one of the purposes of issuing the public notice was to hear those persons also who had been allotted space by the learned Single judge but their space may be reduced in these appeals although no specific appeals have been filed in their cases. After the public notice, many such flat buyers have appeared)and we have heard them. Since by the very nature of the controversy, there is no option for us but to take a view in totality, we have considered the cases of such persons as well. If the effect of that is that some of these flat buyers would now be entitled to lessor space than what is given by the learned Single Judge, then let it be so. This cannot be helped as according to us the foremost principle to be kept in mind is the benefit of maximum number of persons for which we have to devise a scheme keeping in view the public notice in the' forefront. we also cannot allow a situation to emerge where two different yardsticks are adopted. As that would be the obvious consequence if these cases are left untouched, we are dealing with a class action. An overall view has to be taken which results in maximum benefit to maximum numbers. Individual interest has to give way to class interest, what advances interests of justice must prevail over technicalities. . Moreover, even when such persons who are likely to be affected have not responded even after the public notice, it is they who have to be blamed. One cannot lose sight of the fact that the suit filed by the Association was a suit in a representative capacity under Order 1 Rule 8 Code of Civil Procedure and the appeal filed by the Association is the continuation of the said suit. In fact the order dated 1/10/1991 and the proceeding before the Committee amply show that the suit is treated as a representative suit involving all the flat buyers.


(39)ONCE we have taken the view that the learned single Judge was not right in confining the consideration only in respect of those who had filed the suits and having regard to order dated 1/10/1991 and after hearing at length various counsel appearing in these appeals, we are of the view that the learned Single Judge should have taken the final Report submitted by the Committee as the basis for proceeding further in the matter. Afterall, the Committee had done detailed exercise dealing with same questions posed in these suits before the learned Single Judge. Therefore, appropriate course would have been to examine the Report of the Committee in the light of objections filed to the said Report by certain persons and give his final decision, we may immediately add here that by no means we are suggesting that Report of the Committee should have been accepted as it is. However, it could definitely form the basis for proceeding further keeping in view the nature of exercise done by the Committee which has already been highlighted by us in the beginning. If, after examining and analysing the objections to the said report, some faults or errors were to be found in the report, then the learned Single Judge could carry out the necessary modifications therein. However, in our view it was not, necessary to keep the said Report aside and decide only the pending suits. Such a course is contrary to order dated 1/10/1991 which was even upheld by the Division Bench. It has resulted in denial of claims of so many deserving flat buyers. It has also resulted into giving undue advantage to certain flat buyers by allowing them much more space than they deserved or are entitled to. Such a situation needs to be avoided in public interest as well as in larger interest of Justice. Afterall, the approach should be to adopt most equitable solution. That was the ideal approach projected while passing the order dated 1/10/1991. However, after the submission of the Report it, was given a go-by while deciding the suits.


(40)WE, therefore, propose to proceed further on the basis of the Report submitted by the expert committee. However, we may hasten to add that we have the advantage of the judgment of the learned Single judge. A comparison of the approach adopted by the committee as well as by the learned Single Judge has already been formulated above. Therefore, wherever we feel that a particular approach to a specific problem as adopted by the learned Single Judge is better and fairer than the one adopted by the Committee, we would certainly give credence to such an approach of the learned Single Judge, we are trying to find out an ideal solution to the problem by taking best from both i. e. the Report of the Committee as well as the impugned Judgment and also giving our contribution wherever necessary in preference to the approaches adopted by the expert Committee and the learned Single judge.


(41)IT is now time to determine the specific question on merits. As pointed out by the Committee and also accepted by the learned Single Judge as can be inferred from the impugned Judgment, the controversy has basically two parts:


a)Determination of the extent of space in the building and completion of certain pending formalities in relation thereof; and


b)Determination, of entitlement to space in the building to individual buyers.


(42)FOR determining the area available in the skipper Bhavan for allotment, the Committee had appointed. Mr. H. R. Laroya, Ex-Chief Architect of CPWD. It may be noticed that Mr. Laroya was appointed with the consent of all concerned including the Association. He was asked to submit report about the extent of space available in the building and to suggest method of allotting the space among the flat buyers. The committee also asked him to prepare a floor-wise plan of the building showing the allocation of the flats to individual flat buyers based on the scheme approved by it. He submitted his report as required by the committee and gave the floor-wise area available in the skipper Bhavan. The Committee accepted this report and the allotment is made on the basis of area as shown in this report.


It may be mentioned at this stage that the committee had also summoned Mr. V. P. Gupta, Chief architect of NDMC and directed him to file the sanctioned plans and the completion plans of the building. He also appeared before. the Committee from time to time and gave the clarifications as required. The NDMC had also filed the requisite papers which included the area available in the Skipper Bhavan as per the completion plans. The Committee noted that as per NDMC the 12th floor was built in excess of the?area permissible to be built under the existing bye-laws, and therefore, this area was not taken into consideration.


(43)IT may be stated that there was some difference in figures relating to the availability of area as per the report of Mr. Laroya and the Chief architect of the NDMC, Mr. V. P. Gupta. As we shall see later, the difference in area is because of the fact that Mr. Laroya had taken into account the area under projections etc. which was not taken into consideration by the NDMC. Be that as it may, for the purpose of allotment while the Committee took into consideration the area as per the report of Mr. Laroya, the learned Single Judge in the impugned judgment has proceeded on the basis of area available as per the statement given by Mr. V. P. Gupta, Therefore, before us when the matter was argued, the bone of contention was as to which report should be made the basis of determining the availability of the area. whereas mr. Sandip Sethi, learned counsel appearing on behalf of some of the owners submitted that the report of the committee should be accepted as Mr. Laroya who was an expert was appointed specifically for this purpose by the Committee with the consent of all including the association, Lt. Col. Jaswant Singh, Vice President of the Association, appearing on behalf of the Association argued that the NDMC was the best authority to comment on this aspect inasmuch as it is ultimately the NDMC which sanctions the plan and approves the building constructed at site. Two conflicting reports suggesting different areas baffled us as the availability of the area in the building was a matter of measurements and calculation only which could be easily achieved with mathematical precision. A closer scrutiny into the two reports to find out the reason for difference showed that there was no difference in the two Reports as far as measurements were concerned. However, the difference in the calculation arose as mr. Laroya had included the area available under projections also while calculating the availability of area in the building. Other reason for difference arose because of making provisions/non-provisions for refuge area. In order to cut the matter short, we directed Mr. Arvind Sah, learned counsel appearing for the NDMC to undertake this exercise afresh keeping in view the present bye-laws in mind. This also became necessary as the earlier exercise was as per the guide-lines prevailing at the relevant time which had been changed and availability of the area as per new guide-lines, in any case, was required to be ascertained. The NDMC submitted its report. It may be mentioned that even the Skippers had given their version of the availability of the area before the committee. The Skippers have handed over another chart calculating the area as per the new guide-lines after ignoring the construction which is unauthorised. The comparative statement of. details of area given by the ndmc through Mr. V. P. Gupta and Mr. Laroya through the committee and the report submitted by the NDMC now is given below to show the comparison: comparative STATEMENT OF DETAILS OF AREA as GIVEN BY NDMC THROUGH SH. V. P. GUPTA, then CHIEF ARCHITECT AND PRESENT REPORT submitted THROUGH SHRI ARVIND SHAH, advocate FOR NDMC, FIGURES GIVEN BY sh. H. R. LAROYA, ARCHITECT APPOINTED BY TWO member RETIRED JUDGES COMMITTEE ON 11. 1. 1994 AT PAGE 12:As per NDMC As per NDMC report As per the report of


before the two now filed before Sh. S. R. Laroya before


member retired the Honb'le Court two member retired


Judges committee


Floor Covered Refuge Net Covered Refuge Super Refuge Carpet


Area Area Area as Area Area Area Area


as per as per per yet


completion completion inspection now to be


provided


Ground 9054. 516 9436. 82 9393 7500


1st 5500. 467 7462. 78 9053 7235


2nd 7460. 342 7462. 78 -- 9053 -- 7235


3rd 7460. 342 7462. 78 -- 9053 - 7235


4th 7460. 342 7462. 78 9053 7235


5th 6740. 342 720. 00 7462. 78 671. 67 8567 486. 00 6749


6th 7460. 342 7462. 78 9053 7235


7th 6740. 342 720. 00 7462. 78 671. 65 9053 558. 00 6677


8th 7460. 342 7462. 78 9053 7235


9th 7460. 342 7462. 78 9053 7235


10th 6928. 342 532. 00 7462. 78 654. 90 8153 900. 00 6335


11th 7460. 342 7462. 78 9053 - 7235


12th 3374. 220 6904. 68 3436 2288. 00 2235


Common area


Upper 19998. 20 12941 2830 10111


Basement


Middle 19998. 20


-


-


-


19466


10092


9368


Basement


Lower 19990. 20


-


--


19998


10417


9501



Basement


(44)THE two reports of the NDMC, one before the committee and second filed now may. show some difference in the availability of net area in respect of some floors. The said difference is duly explainable. The difference is because of taking into consideration the area of mazenine floor measuring 1792 sq. ft. now which was disallowed earlier, and therefore, the area on first floor stands increased. The changes in figure in respect of oilier floors are because of the measurement of the areas as per the revised guide-lines. In any case, the area now projected as-per the NDMC report is more than the area available earlier, when the figures given now by the NDMC are compared with availability of the carpet area as per the report of Mr. Laroya, it appears to be substantially the same. Rather the figures given now by the NDMC show a little upward trend. Since this is the latest report of the NDMC and measurements done now by the NDMC are as per the new revised guide-lines, there is no reason not to act upon this report for the purpose of calculating the area available for allotment.


(45)THERE are certain other issues which need to be considered. First issue is as to whether carpet area or super area has to be taken into consideration. Report of Mr. Laroya shows that both super area and carpet area were given and the Committee made the allotment on the basis of carpet area. However, the report now filed by the NDMC mentions 'net covered area'. Since it is this area which is treated as available area, it would be appropriate to make the allotment to the flat buyers on 'covered area' basis. The effect would be same as after giving provision for the common area, the allottees would ultimately get for their specific use only the covered area i. e. carpet area.


(46)SECONDLY, from this net covered area given by the NDMC, provision is to be made for common facilities. The Committee had done this exercise and area required to be set apart on various floors for 'common facilities' which is to be shared by all occupants has been stated in detail in the report which specifies the area on each floor to be used for'common facilities'. It may be mentioned that the learned single Judge in the impugned judgment has not taken this aspect into consideration at all and this, in our opinion, is an error in the Judgment, we, therefore, hold that the area as shown in the Committee's Report to be set aside for 'common facilities" would be excluded for this purpose from the area taken as per the recent report of the NDMC.


(47)THIRDLY, in so far as question of unauthorised construction is concerned, the construction on 11th floor as per the revised norms can be fully regularised and it is only a part construction on 12th floor which is unauthorised and uncompoundable. The NDMC has already taken this aspect into consideration while submitting its report.


By taking the revised report of the NDMC into consideration, the dispute regarding areas under the projections to be taken into consideration or not does not survive. Basements


(48)THIS brings us to another important question regarding the area in the basement. In the earlier report, the NDMC had given the area available in the three basements but no such dimensions are given in the revised report. This may be presumably because of the reason that in the impugned Judgment, the learned single Judge has held that no allotment in the three basements can be made. Since we are inclined to make the allotment in the basements also for the reasons stated separately at the relevant stage, the area of basement is also taken into consideration For this purpose we accept carpet area as specified in Laroya's report. It may be mentioned that in the report filed by the NDMC now, areas of those basements have not been specified. In its earlier report, this area was mentioned which has already been mentioned in the table reproduced above. The area mentioned for middle basement and lower basement is substantial ly the same as mentioned in the report of Sh. It -R. Laroya before the committee. The Laroya report stipulates the common area also and therefore can be taken into consideration. However, as far as upper basement is concerned, there is substantial difference between the area mentioned as per the report of the NDMC filed before the Committee when compared with the area mentioned in the report of Sh. H. R. Laroya. The difference is easily explainable. Earlier the Skippers were having office in the Upper Basement and the area covered by that office was not taken into consideration in the report submitted by Mr. Laroya as apart from this area, other area was sold to the flat buyers. The committee has also made allotment of the area as per the report of Mr. Laroya. As would be noticed at the appropriate stage, once the Skippers thought that the said office was no more required by them, they sold the area covered by that office i. e. 7500 sq. ft. to chaturanan Industries Ltd. vide agreement to sell dated 27/12/1989.


(49)WE have already reproduced the basis adopted by the Committee as well as the learned Single Judge in making the allotments. The two approaches are not identical. whereas the Committee has adopted the principle of 'first-CUM-FIRST SERVE', it has added the condition that allotment to such persons would be made only if lie has paid full price and more in respect of his flat and in case a flat buyer has paid lesser price his entitlement would be reduced proportionally. Moreover , the actual area allowed to such flat is 60 per cent of the booked area in so far as basements are concerned by giving 40 per cent allowance for common area; while considering allotment to flat buyers on ground floor and above this allowance for common area is fixed at 30 per cent. On the other hand, the learned Single Judge has also adopted the criteria 'first-CUM-FIRST SERVE" but has treated the extent of amount paid by the allottees as irrelevant. Thus irrespective of the actual amount paid against the booking, the learned Single Judge has made the allotment on the basis of area mentioned in the agreement and priorities are given reckoning the dates of the agreements. The approach adopted by the learned single Judge, differing from the Committee, is reflected in para 14 of the impugned judgment which reads as under:


"before dealing with each of these cases, i have to refer to the method adopted by the Committee. The Committee had referred to the areas mentioned in the agreements of the parties. It had made allotment depending upon the percentage payment made out of the total consideration mentioned in the agreements. In all the agreements what is mentioned is only covered area. The parties hod made payments as per the schedule prescribed by the builder and while ,considering the allotment I cannot taken into account the exact amount paid by the allottees. The approach made by the Committee, in my view. is not quite correct. The agreement holders are not responsible for the present situation and, therefore, while making the allotment I cannot limit to the amounts paid by the allottees and, therefore, allotments have to be made on the basis of the area mentioned in the agreements and priorities are to be given reckoning the dates of the agreements. "


(50)WITH respect, we are unable to subscribe to the aforesaid basis provided by the learned Single judge, while we also agree that norm of first-CUM-FIRST SERVE is acceptable as it is an established norm, which is accepted both by the committee as well as by the learned Single Judge, other factors taken into consideration by the Committee, namely, the actual amount paid and the provisions for common area/facilities were also very relevant and could not be ignored, we agree with the following reasoning of the Committee in its report while adopting the aforesaid approach:


"we may mention here that it was argued by some of the flat buyers that they were prepared to pay the balance money now and that they should be allotted the full space booked by them. In the case of william Jacks, for example, payment of rs. 31,75,000 was made out of a total cost of Rs. 65,85,000. we have accordingly allotted them about 4,800 sq. ft. of area though their booking was for 10,000 sq. ft. Though william Jacks, and others like him are prepared to pay now, we cannot accept their offer. The reasons is that the contribution they made to the building was represented by the amount they paid. The fruits that they want to reap now in the building which came up with the money paid by others are certainly something to which they are not entitled in equity in our opinion. "


(51)EVEN if an individual case, under normal circumstances, relating to specific performance of the contract is to be considered, the payment of amount as per the schedule specified in the agreement or as per demand made from time to time pursuant to clause contained in the agreement would be a determinitative factor. The Court may refuse to exercise its discretion in those cases where the purchaser has defaulted in making payments. Because, by not making payments, the purchaser would naturally be in breach of the agreement and specific performance can even be denied to him. On the one hand, the learned Single judge did riot 'take into consideration the extent of amount paid in relation to the total cost and on the other hand, in many cases even when the cost of more than 100 per cent was paid, the full area is not allotted and in many cases no allotment is made because of non-availability of the area. This has resulted in inequitable results. In many cases where less payment is made, full area is allotted and in other cases more than 100 per cent payment is made, lessor area or no area is allotted. This is yet another reasons for accepting the formula prescribed by the Committee by giving the allotment on the basis of payment made i. e. in those cases where lessor payment is made reducing it proportionately. This has the effect of achieving more equitable results. Therefore, we do not agree with the approach adopted by the learned Single Judge and the learned Single Judge was in error in making allotment to the persons for the entire area booked simply on the basis of agreement i. e. FIRST-CUM-FIRST SERVE and ignoring such breach.


(52)LIKEWISE the area for 'common facilities' has to be sot aside. If the entire area as per the booking is allotted, there would be no area left for 'common facilities'. Alternatively, if the area of 'common facilities' is to be reduced, less number of persons would be accommodated. The Committee in paras 3. 17 to 3. 19 has given the justification for leaving the area for 'common facilities'. In para 3. 21 of the report it has even tried to justify as to why this area is to be reduced from the area booked even as per the agreement with the flat buyers. It would be useful to quote this discussion contained in para 3. 21 which reads as under;


"we may mention here that on a scrutiny of the record before us, and of the allotment letters filed by the flat buyers, we find that in about 90% of the cases Clause (4)of the said allotment letters clearly mentions that the term "covered Area" means the "the area under internal walls, periphery walls and the columns comprising the flat plus proportionate share of the common area". Though, in a few cases, clause (4)of the allotment letter does define the term 'area' to mean "the area under internal walls, periphery walls and the column comprising the Flat", it is implicit in the agreement that these claimants will, like all others, share in the area set aside for common facilities".


we may point out here that counsel for some of the flat buyers argued that they should be allotted full area as booked by them as per the agreement. However, with the exception of few flat buyers the general consensus was to make provision for common area. Even the learned counsel for the Skippers submitted to the same effect. He rather went on to sug. gest that the area should be reduced from the booked area by 40 per cent uniformly i. e. in respect of allotment of basements as well as ground and upper floors. He submitted that if this approach ie adopted, almost all flat buyefs would be allotted some space and no case would be rejected. He even submitted his own compilation showing the proposed allotment to all flat buyers. The formula adopted by the Skippers for this purpose on the basis of which the proposed allotment is worked out, is as under :


1)Allotment to the extent of 60 per cent of the area booked to those who have made full or more payment.


2)Allotment of lesser space to those who have made less payment by reducing it further in the following manner:


a)Those who have made the payment between 50 to 70 per cent, their area should be reduced by 25 per cent.


b)Those who have made the payment of less than 50 per cent, no area allotted and agreement should be treated as cancelled on this account.


We are not agreeable to adopt this approach for the following reasons:i)The area available for allotment taken into consideration by the Skippers in their proposal is at variance with the area available for allotment as per revised report of the NDMC


ii)The proposal as suggested by the Committee of proportionate redaction in case of lesser payment is more appropriate and reasonable.


iii)The Skippers in their proposal have tried to accommodate even those who booked the flats much after the injunction orders passed by this court and were given possession in violation of injunction orders and who were refused the allotment by the Committee as well as by the learned Single Judge. For the reasons stated in detail while discussing this issue, we agree with the approach adopted by the Committee as well as by the learned Single Judge. These cases of the flat buyers who were favourites of the Skippers and booked the flats in violation of the court orders cannot be accommodated.


(53)FOR these reasons we reject the proposal of the Skippers and we feel that the scheme of allotment as suggested by the Committee is more equitable and in accordance with law. we approve the same and hold that allotment should be made on that basis.


However, we are making one modification i. e. in those cases where the payment made is insignificant i. e. around 25 per cent or less, no allotment should bo made.


It may, however, be relevant to add here that while actually implementing tins, the Committee fell into certain errors. The Committee also Ignored or rejected certain cases where flat buyers should have been allotted the space, for example, although the cut off date fixed by the Committee as well as the learned single Judge is proper, what would be the position in case a person booked the space before the cut off date but thereafter sold to another person after the cut off date with the permission of the builder, we feel that in such a case the original date of booking should be taken into consideration inasmuch as the transfer in favour of the present flat buyer was made with the permission of the builder and, therefore, the flat buyer should not suffer on this account. It may also be stated at this stage that the first buyer after booking may have paid the call charges from time to time credit of which is given to the present flat buyer. This and other types of anomalies which were pointed out at the time of dealing these cases have been rectified by us as can be observed from the detailed discussion relating to such specific cases.


Provision for Common Areas. Before wo conclude the discussion on the scheme of allotment, there is one more aspect which has to be addressed to, namely, how much carpet area should be allotted to each flat buyer making provision for the common area. As already noted above, the Committee decided to treat 30% of the area above basement as common area and 40% of the basement area as common area. After making provision of this common area it recommended that fiat buyer should be given 70% of their entitlement on the ground floor and above and 60% of their entitlement in the basement. The reasons for coming to this conclusion by the Committee are already mentioned above while discussing the salient aspects of the recommendations of the Committee. Me are of the opinion that the Committee was persuaded by valid reasons to adopt such an approach. Me, therefore, hold that the flat buyers are entitled to allotment on the basis of this scheme.


(54)IT may be mentioned at this stage that learned single Judge did not at all keep apart any space for common areas. This approach of the learned Single judge was erroneous which has resulted inequitable distribution as per the impugned Judgment. Keeping in view the nature of the problem involved and persuaded by the consideration of equity and good conscience coupled with the fact that all similarly situated flat buyers should be treated alike, uniform approach is adopted.


(55)SINCE we are approving the First Come First serve basis of the Committee;, percentage of allotment depending on the proportion of the payment made by the flat buyer and the provision for common areas as recommended by the Committee, the following scheme of allotment as recommended by the Committee has to be accepted.


(a)Allocation must be made on 'first come First serve basis' and


(b)To arrive at actual and net area entitlement of a flat buyer, the area booked by him shall be reduced; (i)by appropriate percentage depending upon the proportion of payment made by him till date to the said full price: however, no allotment is made to those who paid about 25 per cent or less. (ii)by 30% towards share in common areas if the area is booked on a floor above the ground, or by 40% if the area is booked in the basements. IV Flat buyers in possession in violation of court's orders


(56)AT the time when the Committee was assigned the task by this court, it noted in its interim report that there were 34 flat buyers in possession of the flats in the building. 29 of these flat buyers were given the possession after the order dated 20th, november, 1991 wherein the learned Single Judge has directed as under:


" However, the committee will not disturb the possession of the flat buyers/allottees to whom the possession has already been given. In case however the Committee finds that the possession has been handed over in violation of the orders which were passed from time to time, the Committee after hearing such of the persons who are likely to be affected by its order, pass appropriate directions and take necessary steps to recover possession from unauthorised persons. The Committee is hereby conferred with all the powers under Order 40 Rule 1 code of Civil Procedure to effectuate the purpose of this order. "


(57)BY order dated 5/01/1993 the Committee had ordered the eviction of these 29 flat buyers. Reasons given were as under:


"firstly, no completion certificate has been granted by the NDMC for this building and without such completion certificate, these flat buyers have no right to occupy the building or any part thereof. Secondly, in many cases, possession had been handed over by the builder in clear violation of specific injunction orders retraining the builder from handing over possession. Thirdly, and importantly, persons who were in possession had stolen a march over other flat buyers who were out of possession and were waiting in the queue for the last 15 years. In other words, these persons had Jumped the queue by taking possession and had thus got an unfair advantage over others who were out of possession. "

The learned Single Judge also dismissed all suites filed by all these persons holding that they could not have been put in possession after the injunction orders. Although appeals are filed by these persons and initially Mr. Aman Lekhi, Advocate appeared on behalf of these appellants but submitted that he was not receiving any instructions in the matter. Subsequently he stopped appearing even when the hearing was on and these appeals were shown on Board. Otherwise also, we do not find any reason to deviate from the aforesaid reasonlny of the Committee as well as learned. Single Judge. All these appeals are accordingly dismissed. Five persons out of 34 who remained are:1. Kailash Chander.


2. Ravlnder Singh (Minor)


3. South East Consultants.


4. A. R. wig.


5. Pramod Bhatia.


Out of these five persons it was noted that kailash Chander sold the flats to some third party and possession from Pramod Bhatia was taken back by the skippers. In respect of remaining three persons, the committee recommended they should not be allowed to re-enter the building and occupy the portions previously in their occupation. As far as allotment on merits is concerned in respect of these 32 persons (29 + 3)the Committee observed that they had been given their proper places having regard to their date of booking. They should stand in the queue and take their allotment when their turn comes. The Committee was not able to provide space to all 32 persons because of shortage of space. Some of them booked their flats after 1986 and therefore, they could not be provided space/area in any case. we uphold this stand of the committee.


(58)THIS brings us to the discussion on Special cases. Under this head certain categories of cases are dealt with, namely, that of the owners, certain buyers who booked the area in bulk as well as Punjab and Sind bank etc. The cases of all these persons were dealt with under the head 'special Cases' by the Committee. The learned Single Judge also considered these cases separately and we follow the same approach.


(59)AS already noted above, the owners are the original owners of the plot of land on which the building is constructed. They had initially entered into an agreement but thereafter followed the collaboration agreements. The Committee proceeded on the basis of these collaboration agreements and recommended in case of each owner as under: i. vijender Singh and Ors. were held entitled to 7. 5 per cent of the total built up area in the building as per the collaboration agreement. In support of this recommendation,the Committee even took support of interim orders passed in Suit No. 324/95 filed by them. The learned Single Judge has also decreed the suit holding that they are entitled to 7. 5 per cent of the built up area representing their 1/6th undivided share in the property.


(60)THE Committee as well as the learned Single judge noted that these owners were in possession of 3000 sq. ft. in the Basement and 9000 sq. ft. above the ground floor. We maintain the same. Lt. Col-Jaswant Singh, Vice President of the appellant Flat Buyers Association challenged the aforesaid decree of the learned Single Judge on the ground that not only Vijender Singh's group but all other co-owners also had entered into agreements to sell with the Skippers in the first instance. Since they had sold the land, they were not entitled to any preferential claim. It was also submitted that the so-called collaboration agreements were a camouflage and were entered into in collusion with the Skippers which should not be relied upon. Same very contention was rejected by the learned Single Judge in the following words:


"mr. Jaswant Singh, Vice President of the flat Buyers Association submitted that mr. Vijender Singh had brought about the documents in collusion with Mr. Tejwanfc singh and Mr. Vijender Singh is doing business along with Mr. Harprit Singh. I am not able to agree with Mr. Jaswant singh. The owners are entitled to their shares as per the terms of the agreement. The Association cannot seek to defeat the rights of the owners. P. W. I has also spoken to Ex. P. 16 collaboration dated 6. 12. 1979. A number of documents have been marked through P. W. 1. "


(61)AFTER examining the relevant documents on record, we are of the opinion that this finding of the learned Single Judge is correct and we uphold the same. However, these owners have also filed appeals and in these appeal, they have challenged the direction of the learned Single Judge directing them to pay rs. 3250 per sq. ft. in Fact their contention is that being the owners of the land in question they are a category apart who were to be given the agreed space as per the collaboration agreements without any payment as it was part of consideration of the collaboration agreements. As far as owners are concerned, it is submitted that they are not liable to pay any amount.


(62)WE shall be dealing with the aspect of additional payment separately. Suffice it to mention here that we propose to set aside the direction for payment at the rate of Rs. 3250. 00 per sq. ft. given by the learned Single Judge, by substituting the same by lessor amount. The question which is to be determined at this stage is as to whether the "owners" should also be called upon to pay. Our; answer to this is in the affirmative. Reason is simple. Most of the flat buyers have also paid full sale consideration. Some have even paid more than the agreed price of the flat. Those who have paid lesser amount are either getting lesser space or direction is being issued to them to pay the balance sale consideration. Once the other flat buyers pay full sale consideration for the space they booked, they stand on same footing as these owners. Thereafter if direction is issued for payment of additional money, it is because of the situation created by the Skippers and also keeping in view the work which is required to be done in this building. In this situation the owners are similarly positioned as the other flat buyers. The earlier distinction stands obliterated. The challenge posed by the breaches and defaults of the Skippers have to be faced by all. The additional burden on flat buyers cannot be qua co-owners. It has to be shared by all. For this purpose, flat buyers and the owners would form one class and one category. Therefore, this responsibility the owners cannot escape and cannot claim that they should not be made to pay any amount. If such argument of the owners is accepted, even other flat buyers can also contend that after having paid the full sale consideration it 'is none of their responsibility or obligation under the contract to pay any further amount. Moreover, the completion of the building and restoration thereof to the original position is being done at additional cost which ought to be shared by all. It will be unfair to pass on this additional cost to flat buyers alone. The owners must pay their share of the additional cost for the space which is now allotted to them. Therefore, we hold that the owners shall also be responsible for making the same payment as per directions given to others.


(63)IN so far as other co-owners are concerned, the Committee held these co-owners to be entitled to the following areas which were recommended for them. we see no reason bo deviate from the same. They are accordingly held entitled to these areas with same condition for payment of additional amount now demanded from all flat buyers.


(64)B. JAIN SHUDH VANASPATI GROUP: the Committee recommended that following areas had been booked by the Jain'shudh Vanaspati Group.


NAME


AREA


FLOOR



Jain Shudh Vanaspati


16,340


8th/9th


Jain Shudh Vanaspati


440


Ground



Jain Exports (P)Ltd.


4 ,360


10th


Vinod Kumar Jain


4 ,020


5th



Anju Jain


1 ,300


5th



Vineet Jain


1 ,000


5th



Manish Jain


1 ,100


5th



Total


28,560 sq. ft


In addition, the group has also claimed 10 car parking spaces.


(65)OUT of the aforesaid areas, 16340 sq. ft. on the 8th/9th Floor and 440 sq. ft. on the Ground Floor was allegedly mortgaged with Punjab and Sind Bank on 23rd november, 1983. Before the Committee, this Group insisted on allotment of the area measuring 28560 sq. ft. whereas the Skippers contended that the area of this Group was reduced to 16340 sq. ft. due to delayed payments and by agreement between the parties, and therefore, they were entitled only to this reduced area. The Committee noted that this Group had made payment of Rs. 40 lacs. by cheque on 11/10/1991 and Rs. 20 lacs by cheque dated llth November, 1991 respectively. The Committee also took into consideration the letter dated 30/10/1991 which was written by the Skippers to this Group on the basis of which the Skippers claimed that this Group is not entitled to more than 16340 sq. ft. This letter reads as under:


"mr. Vinod Kurnar Jain jain Shudh Vanaspati Ltd. Barakhamba Road. New Delhi-110001. Sub: SPACE IN SKIPPER BHAWAN, 22, barakhamba ROAD IN THE NAME OF YOURS, your FAMILY AND COMPANIES. "as discussed with you we have no objection in case you go. ahead with interior decoration/wood work after 15/11/1991 i. e. after payment has been realised, under our supervision in the area already earmarked for you i. e. 16340 sq. ft. super area comprising of entire 8th floor and balance area on the 9th floor. "


(66)THE Committee after hearing the parties concluded that this Group was entitled to 16340 sq. ft. only. The relevant discussion in this respect may be quoted below:


"the letter of October 30, 1991 is addressed to "mr. Vinod Kumar Jain, Jain shudh Vanaspati Ltd. " and clearly refers to "space. . . . . in the name of yours, your family and companies. " It is beyond doubt that payments were made by the claimants immediately before the receipt of the letter (by their Cheque dated oct. 11,1991)and immediately after its receipt (by their Cheque dated nov. 11,1991). It is also beyond doubt that possession was taken by the claimants in accordance with this letter. Before us the Jain Shudh Vanaspati group has claimed as aforesaid the full area of 20,560 sq. ft. we are of the view that they are entitled to 16,340 sq. ft. and no more. Our reasons are these: Firstly the letter dated 30/10/1991 shows that the allotment of 16,340 on 8th and 9th floors was in full satisfaction of all their claims. This agreement of final satisfaction was reached on Oct. 30, 1991 when disputes had started and It was common knowledge that the Builder is not in a position to give 28,560 sq. ft. Secondly the payment of Rs. 60 lakhs was made in October and November 1991 after the Committee had come into existence. Thirdly, the Jain Shudh group is a bulk purchaser and having regard to the claims of other flat buyers it will be just to give no more than 16,340 sq. ft. to this party, we make''it clear that Jain Shudh group will be free to pursue such other remedies as are available to them against the Builder. "


(67)IT may be mentioned that six suits were filed by different persons of this group which were considered together' by the learned Single Judge who has allotted NIL area to this group and a refund, of rs. 50,02,600/- has been ordered. The reason for rejection can be found in para 522 of the judgment reading as under; "in view of the conduct of the Elephanta Oil Industries Ltd. , Jain Export (P)Ltd. and Directors of the Companies, I am of the view that they are not entitled to the relief of specific performance. It is admitted that Elephanta Oil Industries Ltd. (Jain Shudh Vanaspati Ltd.)is in liquidation. The position of Jain export (P)Ltd. is also not disclosed. A payment of Rs. 60 lakhs had been made in 1991 when this court had granted injunction restraining Skipper Towers Pvt. Ltd. from doing any act with reference to the Complex. Under these circumstances, I find it very difficult to exercise my discretion in favour of the plaintiffs in the suits. Therefore, the claim for specific performance is rejected. Defendants have not disputed the payment. Therefore, there shall be a decree dismissing the suits for specific performance and directing the defendants to pay to the plaintiffs a sum of Rs. 50,02,600. 00 alongwith interest fl 18% per annum from the date of suit till realisation. Punjab and Sind Bank is not entitled to any rights as mortgagees in respect of the Flats. Therefore, the claim of Punjab and Sind Bank stands rejected. "


(68)RFAS (OS)No. 81/98, 162/97, 47/98, 84/98, 161/97 and 85/98 have been filed by the different persons of this group challenging the aforesaid decision of the learned Single Judge. In these appeals, the judgment and decree of the learned Single judge is challenged on the ground that the learned single Judge had clubbed the companies alongwith individual buyers of Jain Shudh Vanaspati group -and treated them as one entity when they were all separate entities and further that the learned Single Judge did not consider that Jain Shudh Vanaspati's bookings were most prior in time and the full consideration had been made in due time. The contention of Mr. P. N. Lekhi, learned senior counsel appearing for these appellants was that the criteria of 'first-CUM-FIRST BASIS' and 'area fully paid' norms had been completely disregarded by the learned Single Judge.


(69)THE argument of Mr-P,n. Lekhi, learned senior counsel is formidable. The approach of the learned single Judge in these cases seems to be contrary to his own approach in other cases. The learned Single Judge had accepted the criteria of FIRST-CUM-FIRST SERVE and made the allotments on this basis in other cases. However, while dealing with these cases, this very criteria is ignored. This group had booked the flats/space well in time. Further as noted by the committee in its Report, this group has also made the payment against these bookings. The learned Single judge was therefore not right in denying the allotment of space to this group.


(70)THE next question is as to how much area should be allotted to the flat buyers of this group. The Committee recommended the allotment of 16340 sq. ft. whereas these flat buyers are seeking their claims over an area of 28560 sq. ft. we are of the opinion that the committee has given valid reasons for allotting the area of 16340 sq. ft. These reasons are already extracted above. Before the Committee, the contention of the Skippers was that the area was reduced to 16340 sq. ft. due to delayed payments. The Committee noted that that a sum of Rs. 40 lacs was paid in October, 1991 and another sum of Rs. 20 lacs was paid in November, 1991. This clearly shows that. the payments were delayed. Letter dated 30/10/1991 is to be read and interpreted in this context. It appears that there were some discussions over the allotment of area and in these discussions, the flat buyers of this group agreed for taking reduced space of 16340 sq. ft. This letter refers to this discussion. Not only this, after this letter even the possession of the area of 16340 sq. ft. was given to them. One cannot lose sight of the fact that by that time various suits by other persons had already been filed in this court and injunction order was also granted as per which the Skippers were restrained from doing any act with reference to this complex. Still in violation of such order possession was taken by this group from the Skippers. It appears that because of delayed payments and the filing of various suits in this court, the flat buyers of this group discussed the matter with the Skippers and agreed to the reduced space of 16340 sq. ft. super area in order to secure possession of this area. After having allotment. of this area on 8/9th Floors in full satisfaction of their claims it does not behove the flat buyers of flits group to resile therefrom and adopt ingenuous arguments raising technical pleas. The flat buyers of this group are supposed to respect the settlement arrived at after having taken advantage in the same. In view of the peculiar facts of this case when broad sense of justice and equity are adopted as guiding principles while dealing with the claims of hundred of flat buyers it would be proper to accept the approach adopted by the Committee in these cases as well which is more in consonance with these principles. It is not necessary to deal in minute details the various contentions of the appellants/flat buyers of this group which is an attempt to scuttle the arrangement arrived at between the parties. Accepting the recommendations of the Committee, this group is allotted 16340 sq. ft.


(71)AT this stage itself, it would be appropriate to examine the claim of Punjab and Sind Bank also. Jain shudh Vanaspati and Jain Export (P)Ltd. had mortgaged on 23/11/1963 following areas in favour of the bank :


(i)16,340 sq. ft. on 8th/9th floor;


(ii)440 sq. ft. on the Ground Floor.


(iii)4,360 sq. ft. on the 10th Floor. On the basis of this so-called mortgage the punjab and Sind Bank claimed right over the allotment of the aforesaid area. It may be mentioned that the committee rejected this claim of the Bank in the following words:


we are of the opinion that we cannot recognise and uphold the claim of the punjab and Sind Bank in these proceedings, as the same is admittedly founded on the basis of a mortgage security given by jain Shudh Vanaspati in favour of the bank in lieu of the Bank providing certain loans/advances to Jain Shudh vanaspati. In these proceedings we cannot pronounce on the validity or otherwise of the security so furnished to the Bank. These are matters which ought to be agitated in a court of law and not before this committee.


Therefore, we do not recommend any allotment to Punjab and Sind Bank. we make it clear that the Bank may pursue such other remedies against Jain Shudh vanaspati as advised.


(72)THE learned Single Judge also rejected the claim of the Bank holding that in view of the legal position contained in Section 54 of the Transfer of property Act, 1982 defining sale, mere letter of allotment did not confer any title in favour of mortgagors over the property, and therefore, it could not have been offered in law as a security or mortgage to the bank.


We are in respectful agreement with the aforesaid legal position contained in the recommendation of the Committee as well as in the impugned Judgment of the learned Single Judge.


(73)THE group had booked a total area of 10,000 sq. ft. on the 'upper Ground Floor' of the building vide agreement dated 29/06/1982. They had made payment of Rs. 31,75,000. 00 on various dates. The committee noted that this payment represents approx. 48 per cent of the total cost payable by them and therefore it recommended that they be allotted 48 per cent of the area claimed by them. On this basis it recommended allotment of 4822 sq. ft. on 11th Floor where consolidated space of 4822 sq. ft. was available. The learned Single Judge has given the allotment of entire 10000 sq. ft. without making provision for 30 per cent common area and also ignoring that the payment made was only 48 per cent of cost. we have already held that this approach of the learned Single Judge is not correct. It may be observed that by allotting entire available area to it on 11th Floor (7460. 342 sq. ft.)as many as 13 claims of small flat buyers are rejected on the ground that no area is available, we accordingly sot aside the Judgment of the learned single Judge on this aspect and Uphold the allotment as made by the Committee in respect ,of William Jacks and 13 others on the 11th Floor.


(74)THIS group had claimed 30 flats in the building with floor area, details of which are given at page 44 of the Committee's report. Applying the same criteria of 'first-CUM-FIRST BASIS' and the total price paid for each booking, the Committee examined each of the claim of these 30 flats on merits and allotted the area according to the proportion of payment made. It may be mentioned that in respect of the claim to each flat, 30 different suits were filed. The learned single Judge classified these cases into six groups. In the first group, he took up 21 cases of Rajiv Gupta himself and the learned Single Judge held that he was entitled to the entire area booked. Similarly in respect of five cases he held that they were also entitled to the full area booked. The area booked by the entire group is 13,570 sq. ft. However, as the learned Single Judge found that it was not possible to allot the entire area, whatever remain on 8th/9th Floor could be allotted to this group. In this manner, 5360 sq. ft. in the 8th and 6835 sq. ft. in the 9th Floor is allotted to this group. Thus total of 12,195 sq. ft. has been allotted to this group.


(75)IT may be stated that the Rajiv Gupta group has not filed any appeal. However, various parties including the Association as well as the Skippers challenged the allotment of the area to flits group to the aforesaid extent on the ground that the learned single Judge did not take into consideration the fact that amount paid by these persons was much less which was totally ignored. Specific public notice was issued in this appeal also. However, the Rajiv Gupta group failed to respond. It has already been observed above that in a matter of this nature, one may have to take the view in totality and the formula adopted shall govern all cases by its uniform application even if a particular party is not before us. In this case we find that the learned Single Judge was not right in allotting the total area as claimed by this group when the money paid was much less. Me have already held that the formula/yardstick adopted by the Committee is more reasonable than that of the learned Single Judge. Therefore we set aside the aforesaid allotment made by the learned Single Judge in favour the Rajiv Gupta group and hold that in this connection the recommendation of the Committee was correct, we accordingly accept this recommendation and direct that this group would be entitled to the area as recommended by the Committee.


(76)THE claim of the New Bank of India was rejected by the Committee as non-recognisable since it was founded on the basis of security given by the skippers in favour of the bank in lieu of the bank agreeing to furnish bank guarantee in favour of DDA, in the sum of Rs. 9. 72 crores. The learned Single Judge also rejected this claim. No grievance is made by the bank before us. Therefore, this claim stands rejected. INDIVIDUAL. CASES: before coming to the Incidental Issues, we propose to deal with Individual Cases, we may state that the Committee had prepared three lists of the flat buyers. List annexed with the Report as Annexure-I is the list of those flat buyers who were held entitled to spaces in the building. This list prepared floor-wise starting from Ground Floor and going up to 10th Floor contains the name of allottees, their date of booking, area booked, cost of the flat, actual amount paid, percentage of the amount paid in relation to the cost, area allotted, physical area allotted and flat owner. It was agreed by all the parties before us that the particulars relating to date of booking, area booked, cost of flat and actual amount paid were correctly stated in respect of all flat buyers with the exception of mistakes in very few cases which are rectified while dealing with such cases. The percentage of payment made on that basis is also correctly worked out. In fact this was the position accepted even before the learned Single Judge who also proceeded on this basis. Therefore, while doing this exercise of dealing with individual cases, we proceed on the basis of the particulars mentioned in Annexure-I.


(77)WE may also mention that in many cases recommendations of the Committee as well as findings/decree of the learned Single Judge are the same that is to say both had held these flat buyers to be entitled to same area. Before us also no dispute was raised about their entitlement to that particular area. As already pointed out, many such appeals are filed only on the question of direction directing these persons to deposit at the rate of Rs. 3,250. 00sq. ft. Therefore, in all these cases where there is unanimity between the opinion of the Committee as well as findings of the learned Single Judge and there is no dispute before us, we would not discuss the facts of such cases in detail. However, we have reduced the area by making provision for common area, thereby bringing it at par with the allotment of physical area as per the Committee's Report. It may be mentioned that in most of the cases where the Committee reduced the area booked by 30 per cent making provision for common area, but the learned Single Judge decreed the suit for entire area booked, in appeals filed by such persons although challenging the direction for payment of Rs. 3,250. 00 per sq. ft. most of the appellants agreed that provision be made for common area suitably.


(78)THE other two lists, namely, Annexures G and H are the waiting lists. Annexure-G is the waiting list of those buyers who purchased space on floor above the ground Floor and Annexure-H Is the waiting list of those flat buyers who booked spaces in the Basement. These are the lists of those persons who booked the spaces after 31/12/1986. In these lists also the price regarding date of booking, area booked, cost of the flat and actual amount paid are stated which are also correctly described as admitted by one and all.


(79)WE may mention that in the list filed by the skippers, there are some variations of amount paid in respect of certain flat buyers. However, in such cases when the counsel for those flat buyers disputed the figures given by the Skippers and referred to the documentary evidence in support of the amounts paid by them which is reflected in the Committee's Report also, the learned counsel for the Skippers virtually conceded to the figures given in the Committee's Report, we now take up all Individual cases: 1 Mr. Jasvinder Singh (S,no. 2217/87 and efa (OS)No. 10/97):


(80)IT may be mentioned here that he had filed suit No. 2217/87 and a compromise decree dated 30th january, 1989 was passed in his favour as per which he was to be given flat G-6 having area of 440 sq. fc. at the Ground Floor of the building. Thereafter, he moved execution petition No. 142/91 in which following order dated 18/12/1991 was passed:"the committee appointed by order dated 1/10/1991 passed in S. No. 728/87, may demarcate the area relating to Flat No. G-6 admeasuring 440 sq. Ft. on the ground of the suit property and one car parking space in the basement. " It was because of this reason that the committee allotted him 440 sq. ft. of area and did hot take 30 per cent from him for provision of a common area. The committee was however not happy with the result but said that it was doing so on the court orders. Paras 4. 7. 5, 4. 7. 6. and 4. 7. 7 of the committee's Report to this effect read as under:


4. 7. 5. However, we are not happy with the result, while there has been a cut and slicing in the areas of other flat buyers on account of common facilities, in the case of Jasvinder Singh there has been no such cut. we do not understand why this common burden be not shared by jasvinder Singh. when he gets the benefit of allotment of space in the building he must share the burden common to all the flat buyers, we do not read the decree of the court as saying that jasvinder Singh shall not make any contribution towards space set aside for common areas/facilities.


4. 7. 6. This case shows clearly the inequitable result which will follow if a flat buyer with a court decree is given undue advantage over others, we do not think that a flat buyer who has a court order in his favour is better situated than others who did not choose to go to court or who having gone to court have not obtained a decree. This has happened in a large number of cases where claimants' suits are pending but a decree has been passed because the court chose to appoint a Committee.


4. 7. 7. we leave the final decision to the court in view of the fact that the court passed the decree relied upon by the claimant. It is always open to the court to modify the decree if it results in injury to others or pass such other orders as it thinks proper. "


Thus although the Committee had left the final decision to the court. The learned Single Judge while dealing with this claim did not address himself to this inequitable result. In fact as already pointed out above, the learned Single Judge has not at all given provision for common area. In the suit as well as execution, the order was for allotment of 440 sq. ft. to him which lias been done. However, since this 440 sq. ft. includes common area also and this common burden is to be shared by everybody, Mr. Jasvinder Singh cannot be treated differently, we feel that while making provision for common area, no exception can be made in the case of Jasvinder Singh, and therefore, he would be entitled to 308 sq. ft. physical area. 2. . . . . . . . M/s Jain. Shudh Associate as discussed in 'special Cases', this group shall be entitled to 16340 sq. ft. as per the recommendations of the Committee.


3 . Mr. J. K. Arore. (RFA (OS)NO 38/98): he booked 1050 sq. ft. area, paid 129. 83 per cent of the sale consideration. The Committee, therefore, found him entitled to the area booked by allotting him 1050 sq. ft. and the physical area allotted was 735 sq. ft. He had not filed any suit. However, he filed objections to the Committee's Report on 2/04/1994 stating that the possession was given to him on 13/02/1991 and therefore when lie was in occupation of the flat in question, the committee was not competent to go into this question or to make a Report in respect thereof. He had died and thereafter his widow Mrs. Jogindor Kaur Arora and minor children brought themselves on record and filed various ias to the aforesaid effect emphasis that they had booked three flats and only one allotment was made. It may be mentioned that the Committee had allotted them flat G-10 at Ground Floor. However, the learned Single judge dismissed their claim and even refused to accept the Repaort of the Committee in making allotment on the ground that no evidence was given inasmuch as no documents were filed. The learned Single Judge further held that Mrs. Joginder Kaur Arora shall be at liberty to institute proceedings for recovery of the amounts paid by these people to the Skippers. The approach of the learned Single Judge was clearly erroneous. It may be mentioned that the claim was duly adjudicated by the committee by means of documents filed before the committee. In fact as already stated above, there is no dispute about the correctness of Annexure-G of the committee's Report mentioning date of agreement, area booked, cost of flat to be given and actual amount paid. How, in these circumstances, the learned Single judge could reject the claim merely by observing that no evidence was given when this exercise had been accomplished before the Committee by submitting necessary documentary proof. Afterall when It Is accepted that. the amount was paid by Mrs. Joginder Kaur arora and the quantum of amount is not in dispute there would have been no reason to reject the claim of mrs. Joginder Kaur Arora. Mr. Sandeep Sethi, learned counsel for Mrs. Joginder kaur Arora in RFA (OS)No. 38/98 submitted that the findings of the Committee may be accepted meaning thereby he did not press the objections filed to Report of the Committee before the learned Single Judge. Even otherwise, there is no force in those objections. The recommendation of the committee is accordingly accepted and Mrs. Joginder Kaur arora is allotted 1050 sq. ft. and the physical area allotment would be 735 sq. ft.


4. Mrs. R. K. Anand. (CM. No. 515/2000)She booked 1050 sq. ft. on 12/01/1978 for a total consideration of Rs,9,40,800/- and had paid the amount of Rs. 8,34,100. 00 which comes to 88. 66 per cent of the consideration payable. For lessor amount her entitlementi was reduced proportionately by the committee and she was held entitlement to the allotment of 931 sq. ft. and physical area allotted was 652 sq. ft. She did not file any suit and therefore there is no discussion in the impugned judgment Implying thereby the learned Single Judge has not allotted her any area. She has however filed CM in the appeal pursuant to public notice issued by this court. As we have already held above, we accept the recommendation of the Committee and she would bo entitled to the area as recommended by the Committee,


5. Mr. Vikas Bansal (S. No 3797/92. andr F. A (OS)No 60/97)


(81)HE booked 500 sq. ft. paid 97. 35 per cent of the cost and therefore was allotted 487 sq. ft. with allotment of physical area of 341 sq. ft. by the committee. The learned Single Judge has decreed his suit for entire area of 500 sq. ft. simply because he had booked 500 sq. ft. The learned Single Judge neither took into consideration the fact that he paid the lessor amount nor made provision for the common area. As we have already held that this approach of the learned Single Judge is not correct and we have accepted the basis of allotment as recommended by the committee, we hold that ''mr. Vikas Bansal shall be entitled to allotment of physical area of 341 sq. ft. 6. Trakru Housing (S. No. ,1743/91,)


(82)IT booked 1000 sq. ft. area, paid 100. 22 percent of the sale consideration and therefore was held entitled to the entire area by the Committee and physical area allotted was 700 sq. ft. The learned single Judge however, held that the plaintiff was entitled to the allotment of covered area of 1000 sq. ft. as common area need not be taken into account for the purpose of allotment. For the reasons already stated above, we hold that this Corporation would be entitled to 700 sq. ft. as physical area recommended by the Committee. 7 Mr S. K. . Sachdeva: (S. No. 1943/96 and RFA (OS)No. 48/97)


(83)HE booked 1050 sq. ft. , paid 114. 02 per cent. Therefore, the Committee held that he was entitled to entire area booked and physical area allotted was 735 sq. ft. The learned Single Judge allotted him the entire 1050 sq. ft. without making provision for common area. He shall be entitled to allotment of physical area of 735 sq. ft. as recommended by the Committee.


8. M/s Ravinder Singh thr'cdr. Amar Singh. (RFA (QS)NO 130/97): it booked 1000 sq. ft. and paid 111. 18 per cent of the sale consideration. Therefore it's full entitlement was accepted and the physical area was allotted by the Committee was 700 sq. ft. Since it did not file any suit, there is no discussion about it in the impugned Judgment and implication thereof is that it's claim stands' rejected. However, it has filed appeal. As such it's claim is allowed, M/s Ravinder singh is held entitled to 700 sq. ft, of physical area.


9. Mrs C. R. Gambhir:: (S. No. 2056/92. and RFA (OS)No 1/98.):


(84)SHE booked 2000 sq. ft. paid 111. 13 per cent of the agreed price. She was held entitled to the entire area and was allotted physical area of 1400 sq. ft. by the Committee. The learned Single Judge lias held that she should hove been allotted the entire area of 2000 sq. Ft. For same reasons, her area shall stand reduced to 1400 sq. ft. She has filed appeal challenging the direction of Rs. 3,250. 00 per sq. ft.


10. Virender Bahri Gautam Bahri and Sons. (S, No. 3688/92, and RFA (OS)No. 54/98 : they booked 500 sq. ft paid 128. 18 per cent of the price, were held entitled to entire 500 sq. ft. and physical area allotted by the Committee was 350 sq. ft. The learned Single Judge held that they were entitled to entire 500 sq. ft. This would stand reduced to 350 sq. ft,. as physical area recommended by the committee.


11. Mr B. L. Nijhwan : (S. No. 2191/96 and RFA (OS)No. 151/97: he booked 500 sq. ft. paid 149. 39 per cent of the sale consideration, held entitled to entire space booked with physical area allotted as 350 sq. ft. by the Committee. The learned Single Judge decreed the suit for entire 500 sq. ft. without taking into consideration the common area of 30 per cent. we hold that he would be entitled to 350 sq. ft. physical area as recommended by the Committee.


12. M / s Tube Sales Pv t Ltd (S. No. 2314/96 and CM. No. 518/2000):. It booked 760 sq. ft. paid 104. 18 per cent of the price and was allotted entire area with physical allotment of 532 sq. ft. by the Committee. The learned single Judge decreed the suit for entire 760 sq. ft. without taking into consideration the common area of 30 per 'c'ent. we hold that it would be entitled to 532 sq. ft. of physical area as recommended by the cornmittee.


13. Mr. . Rajat Ghai : (S. No. 2990/92): he booked 150 sq. ffc. paid 119 per cent of the total consideration and therefore was allotted by the committee entire area booked with physical area allotment of 105 sq. ft. The learned Single Judge gave him the allotment of 150 sq. ft. sq. ft. without taking into consideration the common area of 30 per cent. we hold that lie would be entitled to 105 sq. ft. of physical area as recommended by the Committee. He did not file any appeal.


14. Mr B. M. Sachdeva (RFA (OS)No 26/99): he booked 160 sq. ft. , paid 109. 37 per cent of the price. As it was more than 100 per cent, the committee held that he would be entitled to entire area booked with allotment of physical area of 112 sq. ft. His claim is rejected only because he did not file any suit. However, he has filed RFA (OS)No. 26/99. It is held that he is entitled to physical area allotment of 112 sq. ft. as per the recommendation of the Committee.


15. Shaloo Agencies,: (S. No2. 098/96 and RPA)(OS)No 129/97). This flat buyer booked 160 sq. ft. and paid 150. 87 per cent of the sale consideration. The learned single Judge allotted the entire area of 160 sq. ft. in the 5th Floor. For the reasons stated above, we hold that Shaloo Agencies would be entitled to 112 sq. ft. after deducting 30% common area recommended by the committee.


16. Global Aviation Service. Pvt, Ltd , (S. NO. 2212/96): this company booked 623 sq. ft. , paid 112. 67 per cent of the agreed price and held entitled to the entire area booked with physical area allotted as 436 sq. ft. The learned Single Judge allotted the entire area of 623 sq. ft. without making the provision for common area. After making the provision for common area, this company would be entitled to 436 sq. ft. physical area as recommended by the Committee.


17 Mrs. Ranjit Kaur (S. No. 4491/92 and 8/98): she booked 500 sq. ft. , paid 81. 13 per cent of the total consideration as per the agreement. Therefore, the Committee allotted proportionate area of 406 sq. ft. with physical area allotment as 284 sq. ft. She has filed appeal mainly challenging the direction to deposit Rs. 3,250. 00per sq. ffc. She would be entitled to 284 sq. ft. of physical area.


18 Dr (Mrs)Sudarshan. Kapur (S. No 3689/92 and RFA (OS)No 64 /98)She bookod 360 sq. fl. , paid 107. 73 per cent of the total consideration and therefore, was held entitled to entire area booked with physical allotment of 252 sq. ft. , by the Committee. The learned Single judge allotted the entire area of 360 sq. ft. without considering the 30 per cent common area. For the reasons stated above, wo hold that she would be entitled to 252 sq. ft. as recommended by the cornmittee.


19. William. Jacks (P)Ltd (S. No. 728/87): as already discussed in Special Cases, it's claim is admissible to the extent of 4822 sq. ft. as recommended by the Committee.


20. Nidhi /abha Gupta (S. No 2758/92 and RFA (OS)No 154/97). They booked 500 sq. 'ft. , paid 90. 02 per cent of the price of the flat. The area was proportionately reduced to 450 sq. ft. by the Committee and the physical area allotted was by the committee as 315 sq. ft. we hold that they would be entitled to 315 sq. ft. as per recommendation of the Committee.


21. Mr Ravinder Kumar (S. No. 913/91 and RFA (OS)No 17/98): he booked 500 sq. ft. , paid 141. 52 per cent of the sale consideration. The Committee recommended that he should have been allotted 550 sq. ft. with physical area allotment as 385 sq. ft. He filed suit which was dismissed by the learned Single Judge on the ground that he had not shown his willingness to pay additional amount, if ordered by the court and the learned Single judge directed that he be refunded the amount paid by him. The approach of the learned Single Judge is clearly erroneous, inasmuch as the decree could have been passed with the condition that he would pay the amount as ordered. The suit could not have been dismissed merely because he had not specifically stated that lie was willing to pay the additional amount, if ordered by the court. The learned Single Judge clearly ignored that he had paid more than one and half times the sale consideration and dismissing his suit for specific performance would clearly be unjust to him. He has filed appeal challenging the dismissal of the suit. The appeal is accepted. The suit of the plaintiff stands decreed. However, the approach of the committee in allotting him 550 sq. ft. instead of 500 sq. ft. booked is also not correct. It is not understood how the Committee allotted him more area than booked. Therefore, we hold that Mr. Ravinder Kumar would be entitled to allotment of 500 sq. ft. and the physical area allotted to him would be 350 sq. ft.


22. Smt. Prem Gurcharan Singh and ors (S. No. 2,255/96 and REA (OS)No. 71/97): they had booked 500 sq. ft. , paid 99. 01 per cent of the sale consideration on the basis of which the Committee allotted them 495 sq. ft. with physical area allotment of 317 sq. ft. The learned Single Judge allotted the entire 500 sq. ft. They have filed appeal and the contention is that the Committee wrongly stated that the payment made was 99. 01. per cent. In fact the total price as per the agreement was Rs. 3 lacs and not rs. 3,53,000/- as mentioned by the Committee. The payment of Rs. 3,49,500. 00 therefore would be much more than 100 per cent. The counsel for Skippers agreed that the price as per the agreement was Rs. 3 lacs. Therefore, there appears to be error by the Committee in mentioning the cost of the flat as Rs. 3,53,000. 00 instead of Rs. 3 lacs. They are therefore entitled to the entire booked area i. e. 500 sq. ft. with physical area of 350 sq. ft.


23. Mr. Anurag Aggarwal (S. No, 1271 / 92 and Rfa (OS). No. 92/97: he booked 500 sq. ft., paid 92. 97 per cent of the agreement price. . The Committee therefore allotted him 465 sq. ft. with physical area of 326 sq. ft. His suit is dismissed by the learned Single Judge on the ground that there is no space available at the Upper ground Floor. He filed appeal challenging,this finding on the ground that this was not a relevant consideration inasmuch as even the learned Single Judge accommodated. such persons on other floors. In fact this situation arose holding that no space was available only because. without making provision for 30 per cent common area. The learned Single Judge had decreed various suits for the entire area booked by such persons. Since we are making tills provision in this appeal area would clearly be available for mr. Anurag Aggarwal. The judgment of the learned Single judge qua him is therefore set aside. The suit is decreed. He shall be entitled to 326 sq. ft. physical area as recommended by the Committee.


24. M L. . D,, K. Gupta (S. No. . 2184/96. . and, RFA. . . (OS)No,75/. 98,). He booked 300 sq. ft. , paid 115. 06 per cent that is much more than the sale consideration. Therefore, the Committee held that he was entitled to entire area booked and physical area allotted was 210 sq. ft. The learned Single Judge has also decreed his suit. He has filed appeal challenging the direction of rs. 3,250/-per sq. ft. He is entitled to 210 sq. ft. as physical area recommended by the Committee.


25. Mrs. . . Kamlesh Vasudeva (,s , No,, 2394/96 and. . C M No. 49 /2001). She booked 435 sq. Ft. , made payment of 94. 69 per cent of the sale consideration. Therefore, the committee reduced the allotment of area proportionately to 412 sq. ft. with physical area allotted as 288 sq. ft. The learned Single Judge has allotted her the entire 435 sq. ft. For the reasons already recorded above, she would be entitled to 288 sq. ft-physical area.


26. Mr, G. Dubey (. S, No. . . 2537/96 and. RFA (OS)No, 94/97: ho applied for 325 sq. ft. , paid consideration of 60. 11 per cent only. By proportionately reducing his area, the Committee found,that he was entitled to 195 sq. fb. and the physical area allotted was 137 sq. ft. However, in suit filed by him, he is allotted the entire 325 sq. ft. We have already held above that those persons who made much lessor payment, approach of the learned Single Judge in allotting full area, was not correct. Therefore, he shall also be entitled to 137 sq. ft. physical area. The decree is modified to this extent. He filed appeal challenging the direction of Rs. 3,250. 00 per sq. ft.


27. Mr. Himanshu Gupta (S. No. 2706/92 RFA (OS)No. 160,/97): he booked 500 sq. ft. , paid 81. 83 per cent of the sale consideration. By proportionately reducing the area, the Committee found that he should be allotted 409 sq. ft. with physical area as 286 sq. ft. The learned Single Judge has, without giving any reasons, held that he is entitled to 400 sq. ft. This entitlement is on no basis whatsoever. we are satisfied that the Report of the Committee is, correct. He shall be entitled to physical area of 286 sq. ft. as per the Committee's recommendation. In appeal although he admits that he has paid Rs. 2,50,000. 00 but he submits that the sale consideration was Rs. 2,49,500/~ as per certificate dated 10/11/1988 issued by the skippers and therefore he had made the full payment. On tills basis he has challenged the recommendation of the Committee as well as learned Single Judge and has submitted that he should be held entitled to the entire area of 600 sq. ft. The Committee has mentioned in the report that the cost of the fiat was Rs. 3,05,500. 00. However the agreement produced by Mr. Gupta allows that he had booked 500 sq. ft. at the rate of Rs. 500/~ per sq. ft. Therefore, the total consideration would be rs. 2,50,000/ -. Thus he, having made the full payment, would be entitled to the total area of 500 sq. ft. with allotment of physical area as 350 sq. ft.


28. Mr. Sanjeev Malhotra (S. No4110/92): in the suit filed by him, his claim for allotment/specific performance is rejected and the learned Single judge has held that he would be entitled to refund of Rs. 1,51,000. 00. The learned Single Judge held that the agreement as Ex. P-1 proved before the court was dated 26/12/1986/ 5/05/1988. On this basis the relevant date was taken as 5/05/1988 which was after the cut off date of 31/12/1986, and therefore, the claim for specific performance was rejected. He has not filed any appeal. It is clear that there two dates mentioned on the agreement namely, 26/12/1986 and 5/05/1988 whereas the Committee took the date of 26/12/1986. The learned Single Judge accepted the date of 5/05/1988 as the date of agreement. The date of 5/05/1988 appears to be correct. May be originally the spaces were booked on 26/12/1986 but no payment was made. It seems that in May 1988 the flat buyer again approached the Skippers and therefore, the agreement was treated as on 5/05/1988. It would be clear from the fact that payments are made only after may , 1988. It appears that this fact was overlooked by the Committee. Although there is no appeal, the judgment of the learned Single Judge is even otherwise correct.


29. M r. A. R. . Wig (S. No. 1957/96 and RFA, (OS). No. 128/97): he booked 650 sq. ft. paid 82. 60 per cent of the sale consideration on which basis the Committee allotted him 537 sq. ft. with allotment of physical area 376 sq. ft. In the suit filed by him, the learned single Judge has not granted specific performance but directed refund of the payment. It may be mentioned here that he filed objections against the Report of the committee IAS. 1466/95, 1470/95 in Suit. while rejecting his claim for allotment, the learned Single judge observed as under:"74;mr. A. R. wig has claimed 650 sq. ft. on the basis of agreement dated 26/12/1986. The Committee had noted that he had paid a sum of Rs. 2,34,100. 00 as against the cost of Rs. 2,83,400. 00and thus 82. 60 per cent had been paid. The committee allotted 530 sq. ft. (376 sq. ft. physical area)in. Flat No-509-B. He had filed objections 'to the Report of the committee IA 1466/95 and 1470/95. He had also filed Suit No. 1957/96. In the plaint it is stated that on 4. 3. 1982 the plaintiff agreed to purchase a space of 650 sq. ft. on the Upper Ground Floor and the rate was Rs. 300. 00per sq. ft. The plaintiff paid a slim of Rs. 25,000. 00 on 4. 3. 1-982. In may 1986 the plaintiff paid a sum of Rs 2 ,04 ,100/- as against the agreed price of Rs. 1,95,000. 00. On 25. 5. 1900 the plaintiff requested mr. Tejwant Singh to increase the area to 1000 sq. ft. instead of 650 sq. ft. Mr. Tejwant Singh agreed. The plaintiff paid extra amount of Rs. 1,90,130. 00. The plaintiff paid Rs. 3,94,230. 00. On 12. 4. 1991 the plaintiff paid the final payment of Rs. 41,220. 00. The plaintiff was given possession on the Upper Ground floor and he applied for telephone connection and in September 1994 the plaintiff installed the telephone and he spent more than Rs. 2 lakhs for furnishing. The plaintiff is in actual physical possession of the Flat. The plaintiff filed claims before the committee and he filed objections later on. The defendant is under legal obligation to execute the sale deed in respect of office 204 Upper Ground Floor to the extent of 1000 sq. ft. Thus the plaintiff claims specific performance in respect of office space No. 204 Upper ground Floor. Mr. A. R. wig examined himself as Ex. P. W. I. He spoke to the agreement dated 4. 3. 1982 which is marked as Ex. P. 1. According to him on 25. 5. 1986 mr. Tejwant Singh agreed to sell additional space of 350 sq. ft. He had marked receipts Ex P. 2 to P. 15 showing the payments. According to the witness, the original receipts have been lost. The statement of account given by the defendant is marked as Ex. P. 16. According to the plaintiff, the receipt dated 9. 2. 1991 showing the payment of rs. 50,000/- had also been lost by him. He produced certificate from the State bank of India dated 25. 9. 1984 stating that Rs. 50. 000. 00 had been debited from the account of the plaintiff. That is marked Ex. P. 17. Mr. Jaswant Singh, Vice president of the Flat Buyers Association cross examined Mr. wig. To a question whether the agreement dated 4. 3. 1982 would refer to a particular flat, the answer as "i do not remember the date when I signed the agreement". It was put to him that he filed I As. 4608/90 and 4609/98 along with Mr. K. S. Jolly, Deputy general Manager, PTI, Mr. Sarabjit Singh, mr. D. B. Khare and Mr. Harsarup on 7. 6. 1990. His answer was that "i might have signed some documents but I do not remember what exactly they are", when a question was put to him why did not get any-order from this Hon'ble court for taking possession and whether you were aware of stay of handing over or taking over possession. The answer was "i was not aware of it. " he would state that he was not aware of any contempt petition No. 153/92 pending against him. He would state that he filed objections to the report of the committee, when a'question was put to him that he did not file any receipt before the Committee, the answer was "the committee did not give me time so I could not file the receipts". In the suit he has claimed for the following reliefs:"it is therefore, prayed that this hon'ble court be pleased to pass a decree of specific performance of the sale of 1000 sq. ft. office space in favour of the plaintiff and against defendant, with costs of suit, thereby directing the defendant, its officials, etc. to execute the sale deed in respect of office space No. 204, Upper Ground Floor of Skipper Bhawan, 22, Barakhamba Road, new Delhi, having about 1000 sq. ft. forthwith as shown red in plan attached in favour of the plaintiff and to present the said sale deed for registration before the concerned Sub-Registrar, New delhi, as per law and in case if the defendant fails to execute the sale deed then this court be pleased to direct the registrar of this Hon'ble court to execute the sale deed in favour of plaintiff on behalf of defendant as per law, along wit It costs of the suit. In case the sale deed is for an area less than 1000 sq. ft. in that event plaintiff is entitled to damages of Rs. 20,00,000. 00 (Rupees twenty lakhs only). "ex. P. I is the allotment letter dated 4. 3. 1982 wherein reference is made to first floor 650 sq. ft. Rate was Rs. 300. 00 per sq. ft. Ex. P. 2 is a receipt dated 13. 3. 1984 for payment of Rs. 20,000. 00 by cheque for space area in the First Floor. Ex. P. 3 is a receipt dated 27. 9. 1984 for payment of Rs. 20,000. 00 by way of cheque. Ex. P. 4 is receipt dated 14. 12. 1984 for rs. 50,000/- by cheque for the First Floor for 650 sq. ft. Ex. P. 5 is receipt dated 9. 3. 1985 for Rs. 30,000. 00 by way of cheque for Flat No. 6 Upper Ground Floor. Ex. P. 6 is receipt for Rs. 10,000. 00 by cheque dated 4. 5. 1985 for Flat No. UB-6 on Upper basement 650 sq. ft. Ex. P. 7 is receipt dated 25. 5. 1985 for Rs. 9,600. 00 by cheque for Flat No. 6, Upper Ground Floor 650 sq. ft. Ex. P. 8 is receipt dated 19. 7. 1985 for Rs. 9,750. 00 by"cheque for Upper Ground floor. Flat number is not mentioned. Ex. P. 9 is receipt dated 11. 12. 1985 for payment of Rs. 9,750. 00 by cheque for Upper ground Floor 650 sq. ft. Flat number is not mentioned. Ex. P. 10 is receipt dated 27. 11. 1986 for Rs. 30,000. 00 by cheque towards marble etc. for Flat No. 1, Upper ground Floor. This receipt is issued by skipper Towers Pvt. Ltd. Ex. P. 11 is receipt dated 23. 1. 1987 for payment of rs. 25,000/- by cheque for Flat in Upper ground Floor. Ex. P. 12 is receipt dated 5. 8. 1987 for payment of Rs. 30,000. 00 by cheque for Flat No. 6, Upper Ground Floor 650 sq. ft. Ex. P. 13 is receipt dated 8. 7. 1988 for payment of Rs. 4,160. 00 by cheque for Upper Ground Floor 650. sq. ft. No flat number is mentioned. Ex. P. 14 is receipt dated 8. 7. 1988 for Rs. 9,750. 00 by cheque for Upper Ground Floor 650 sq. ft. No flat number is mentioned. Ex. P. 15 is the receipt dated 12. 4. 1991 for payment of Rs. 41,220. 00 by cheque for Upper Ground floor 650 sq. ffc- Flat number is not mentioned. Ex. P. 17 is a letter dated 15. 9. 1994 issued by the State Bank of india, Kasturba Gandhi Marg Branch which states as follows:"your Savings Bank A/c No. 1797. with reference to your letter dated 9. 9. 94, we advise that cheque No. 014006 dated 22. 1. 93 has been issued by you in favour of self and obtained in cash. Further cheque No. 268739 dated 1. 2. 91 has been drawn in favour of Skipper Towers pvt. Ltd. which has been paid on 9. 2. 91 for Rs. 50,000. 00. a sum of Rs. 20. 00 has been recovered as a service charges by debit to your account. "ex. P. 18 is the statement of account issued by Skipper Towers Pvt. Ltd. 75. Having regard to the facts and circumstances when Ex. P. 1 refers to First floor, the plaintiff cannot claim on the basis of allotment on the Upper Ground floor. The whole case is pegged on the agreement with reference to Upper Ground floor. I am of the view that the plaintiff has not established his claim for any allotment. Therefore, the claim for allotment to the plaintiff is rejected. The suit stands dismissed. IAs. 1466/95 and 1470/95 are dismissed. There shall be a decree dismissing the claim for allotment. The plaintiff shall be paid the sum of Rs. 3,94,230/~ from out of the common pool. "


(85)AFTER going through the record, we are satisfied that the date of original date of agreement is of 4/03/1982. However, this agreement is for 650. sq. ft. only. Therefore, the Committee was right in considering the claim of 650 sq. ft. Mr. wig was not able to establish the allotment of additional area of 350 sq. ft. Moreover, even otherwise when the consideration of 650. sq. ft. was Rs. 2,03,400/- on 4/03/1982 and the total payment made by rs. 2,34,100/-, he would not be entitled to the space on the basis of 1000 sq. ft. However, we are also of the view that the rejection of his claim in respect of 650 sq. ft. merely because Ex. P-1 refers to First Floor and the plaintiff could not make claim on that basis in the upper Ground floor is not sustainable. Admittedly, many Flat buyers who booked the space in a particular floor are adjusted in some other floors. In the instant case, Mr. wig was given possession on the Upper ground Floor. Even if the possession was given to him was in violation of the injunction order, the effect of that would be to dispossess him. However, his claim on the basis of agreement has still to be considered on its merits. If on the basis of Ex. P-1 he would not be entitled to allotment of Upper Ground Floor then the learned Single Judge could have considered his claim for First Floor to which Ex. P-1 refers to. However, it may be mentioned that even the Committee did not allot him the area at Upper Ground Floor but on 5th Floor. we also agree with the judgment of the learned Single judge that he has not been able to establish any payments in respect of the additional area allegedly allotted and his claim that he paid total amount of rs. 3,94,230 is not acceptable, we accept the figure as given by the Committee, we set aside the judgment of the learned Single Judge and hold that he shall be entitled to physical area of 376 sq. ft.


30. M/s. Fateh Printing Press. (s. No. 296491)RFA (OS)No. 61/97:


This flat buyer booked 760 sq. ft. , paid 91. 42 percent of the sale consideration and on that basis allotted area of 695 sq. ft. with physical area of 487 sq. ft. by the Committee. The learned Single Judge refused to grant relief of specific performance and held that it would be entitled to refund of the amount paid along with interest at the rate of 18 per cent per annum. "para 81: m/s Fateh Printing Press, a partnership concern, had claimed 760 sq. ft. on the basis of agreement dated 3. 3. 1981. The committee had noted that it had paid a sum of Rs. 4,25,503. 00 as against the cost of Rs. 4,64,360. 00 thereby it had paid 91. 42%. The Committee had allotted 695 sq. ft. (487 sq. ft. physical area)in Flat no. 110 in the First floor. Fateh printing Press had filed Suit No. 2964/91 claiming the relief of specific performance and also-for injunction. The defendants are Skippers Sales Pvt. Ltd. first defendant. Skipper Towers Pvt. Ltd. , 2nd defendant, William Jacks and company (India)Ltd. 3rd defendant, it is the case of the plaintiff that international Industries Annual obtained the rights to purchase Flat No. 110 measuring 760 sq. ft. from Mr. V. K. Gupta by agreement dated 5. 3. 1981. On 15. 10. 1981 the plaintiff purchased the flat in question from International industries Annual. On 8. 1. 1986 Skipper sales Pvt. Ltd. handed over physical possession of Flat No. 110. measuring 760 sq. ft. to the plaintiff. On 12. 9. 1986 the plaintiff received a letter from the first defendant that it had assigned the project to the second defendant Skipper towers Pvt. Ltd. The plaintiff had paid a sum of Rs. 4,25,503. 50,to defendants 1 and 2. The plaintiff came to know that third defendant William Jacks and Co. (India)Ltd. contested the suit and defendants 1 and 2 did not appear to contest. Mr. Manjit singh was examined as P. w. 1. on behalf of the plaintiff partnership concerned. Ex. P. I is marked which is the partnership deed and Ex. P. 2 is photocopy of the certificate of Registration of the plaintiff's partnership. Ex. P. 3 is the agreement which the plaintiff entered into with the International Industries annual. Ex. P. 4 dated 5. 3. 1981 is letter from Mr. V. K. Gupta. According to P. M. I the rate was Rs. 500. 00 per sq. ft. and the area booked was 760 sq. ft. Ex. P. 5 is the plan given by the first defendant showing the area allotted to the plaintiff. Exs. P. 6 to P. 36 are the receipts to show the payments. Ex. P. 37 is the letter of possession. 82. I have perused the documents. Ex. P. 4 is the letter alleged to hove been written by Mr. V. K. Gupta to the first defendant stating that he had booked Flat on 27. 12. 1977 and he was assigning his rights in favour of his nominee 'international Industries Annual. Ex. P. 3 is' dated 15. 10. 1981 from International industries Annual to first defendant skipper Sales Pvt. Ltd. stating that it had assigned the rights to Fateh Printing press. The agreement dated 27. 12. 1977 has not been produced. The payment alleged to have been made by Mr. V. K. Gupta on 27. 12. 1977 to the tune of Rs. 38,000. 00 is not evidenced by any document and that is not proved. Receipts Ex. P. 7,p. 8, p. 10, P. 15, P. 16, P. 17, P. 19, P. 21, P. 22, p. 23, P. 25, P. 26, P. 27, P. 28, P. 29, P. 30, p. 31, P. 32, P. 33, P. 34 and P. 35 show that payments had not been made directly but there were some adjustments and by drawing of bills. Receipts Ex. P. 12, P. 13 and P. 14 show that the payment was made in cash. Ex. P. 36 is receipt dated 31. 8. 1990 on which date no payment could have been made because the plaintiff must have been well aware that there was an order of injunction by this court operating against the defendants 1 and 2. Ex. P. 37 reads as under:"sub. Flat No. 110 measuring 760 sq. ft. on first Floor at Skipper Bhawan, 22, barakhamba Road. we have this 8th day of January 1986 handed over provisional physical possession of Flat No. 110 measuring 760 sq. ft. on First Floor at 22, Barakhamba road, New Delhi. Till such time as the permanents electric connection is not given, we shall provide you with one light and one fan. "this only shows that the plaintiff and defendants 1 and 2 were anxious to create evidence to show the possession. The first defendant had not obtained completion certificate from the NDMC and the building was under construction and under what circumstances the letter came to be issued is not explained by the plaintiff. Ex. P. 38 is letter dated 29. 8. 1988 from the Telephone Department to Mr. A. R. wig, Chief Editor wherein it is stated that telephone of Mr. Manjit Singh of Pateh Weekly had boon dealt with out of turn priority basis and a new number had been given. This only shows that the plaintiff somehow colluding with defendants 1 and 2 make it appear as if it had taken possession of the property and to conform it had brought about evidence to show that telephone also had been installed. It may also be noticed that the plaintiff is Fateh weekly. Mr. Manjit Singh may be the person operating both. On 15. 5. 1990 Mr. Manjit singh writes to Chief General Manager, delhi, Telephones that even though telephone was installed on 24. 8. 1988 the telephone was not functioning. This would also show that the installation of telephone was only to establish the fact of possession which was not at all authorised. There is also on record letter dated 16. 6. 1990 from the plaintiff to the Post Master, G. P. O. complaining that letters addressed to Fateh Printing press are taken by the postman to Skipper towers Pvt. Ltd. in the Ground Floor and necessary instructions should be given to the postman. This again shows the anxiety on the part of the plaintiff. Ex. P. 5 is the plan filed by the plaintiff to show that along with a letter of possession the planiwas given. It is not shown that it was the plan approved by the NDMC. This only shows a document created for this purpose. 83. I am unable to accept the case of the 'plaintiff that it had entered into any agreement for the purchase of the flat in the first floor. The Committee had not considered that the plaintiff came forward with the case of agreement dated 27. 12. 1977 and that agreement had not been filed to show the genuineness of the claim. The plaintiff has not established his case for allotment and I reject the claim of the plaintiff. So far as the payments made by the plaintiff by adjustment or otherwise, defendants 1 and 2 do not contest the same. Therefore, the plaintiff is entitled to a decree for for recovery of the amount accordingly, there shall be a decree dismissing the suit of the plaintiff for allotment and directing the defendants 1 and 2 to pay to the plaintiff a sum of Rs. 4,25,503. 60 along with interest at the rate of 18 per cent per annum from the date of suit till realisation. "


(86)THE aforesaid reasoning is not correct and as it ignores certain material facts and documents on record. It may be mentioned that Die original flat allottee was one Mr B. K. Gupta -who booked the flat on 27/12/1977. It is alleged that he made payment of Rs. 38,000. 00. Although it is stated by the learned Single Judge that the payment of Rs. 38,000. 00 is not evidenced by any document, what is ignored is that this flat buyer had produced on record document dated 5th March, 1981 (Ex. P. 4)which is the letter of substitution/assignment in favour of M/s International industries Annual who in turn nominated M/s Fateh printing Press as its nominee for the space booked. This document has been duly admitted by the Skippers and was also produced before the Committee. The original agreement dated 27/12/1977 could not be produced by this flat buyer as on assignment being done in favour of the appellant, that was taken back by the Skippers. The appellant was basing its claim on subsequent letters of allotment/assignment dated 5/03/1981 and 15/10/1981 which were duly produced and exhibited. It is already held above that in such transfer cases which were duly accepted by the skippers, it is the original date of agreement which is to be taken into consideration. The appellant has paid a sum of Rs. 4 ,25 ,503. 60 paisa as sale consideration which has also not been disputed by the Skippers and this payment was substantiated before the Committee as well. This constitutes only 91. 42 per cent of the sale consideration, we, therefore, hold that the learned single Judge wrongly rejected the claim of the appellant, we accordingly accept this appeal and hold that this flat buyer shall be entitled to area of 695 sq. ft. with physical area of 487 sq. ft. as allotted by the Committee.


31. Mithani. Enterprises, (C M. No. 499 / 2000)


(87)IT booked 1000 sq. ft. , made 113. 04 per cent and therefore held entitled to area booked with physical area of 700 sq. ft. as recommended by the committee. It's claim is rejected only because it did not file any suit. However, this company has filed CM in the appeal pursuant to public notice issued by this court, we hold that this company would be entitled to physical area of 700 sq. ft. as recommended by the committee. .


32. Ms, Gita Anand and Ms, Ranjan anand (S. No. 1346/92. and CM No. 30/ 2001}:


(88)THEY booked 440 sq. ft. , made payment to the extent of 99. 71 per cent of the cost of flat on which committee allotted 439 sq. ft. with physical area of 307 sq. ft. The learned Single Judge has decreed their suit for the entire area of 440 sq. ft. without making provision for the common area. The judgment is modifled and the area stands reduced to 307 sq. ft. physical area as recommended by the Committee.


34. Mr,manish Gupta (RFA (OS)No. 155. 97):


(89)HE booked 760 sq. ft. but made payment to the extent of 73. 79 per cent on the basis of which the super area was reduced to 561 sq. ft. and physical area of 393 sq. ft. by the Committee. He having died his lrs. Mr. Mukul Gupta and Smt. Kunj Gupta filed suit no. 3970/92. The learned Single Judge has allotted 700 sq. ft. having regard to the space available but without taking into consideration the common area of 30 per cent and the less payment made. Their entitlement was therefore to the extent of 393 sq. ft. physical area as per the Committee's Report. 35 and 38. Niryat Pyt. Ltd. (S. No. 3075 / 90 and rfa (OS)No. 68. / 97): it booked two flats of 550 sq. ft. each. In respect of one flat payment made was to the extent of 86. 22 per cent and in respect of other flat to the extent of 101. 94 per cent. 'the Committee therefore recommended super area of 474 sq. ft. and 550 sq. ft. respectively with physical area of 332 sq. ft. and 385 sq. ft. respectively. The learned Single Judge has, against 1100 sq. ft. in respect of both the flats, made the allotment of 900 sq. ft. keeping in view the space available. Since the more space would now be available and the Committee has allotted a total space of 1024 sq. ft. (474 sq. ft. + 550 sq. ft.)we restore the same and allot the physical area of 332 sq. ft. add 385 sq. ft. respectively as per the recommendation of the committee.


36. Mannu Electronics (CM No. 497/20qo):


(90)THIS company booked 750 sq. ft. and made the payment to the extent of 101. 36. per cent and therefore, the Committee held that it was entitled to entire space booked and allotted physical area of 525 sq. ft. The claim is however, rejected by the learned Single Judge on the ground that no suit was filed. This company has however filed CM pursuant to public notice issued in the appeal, we hold that this company would be entitled to physical area of 525 sq. ft. as recommended by the Committee.


37. Cdr. Narindra Pratapsingh: (S. No rfa (OS)No. 145 / 97)


(91)HE booked 500 sq. ft. area and paid more than 100 per cent i. e. 115. 06 per cent of the cost. Holding that he is entitled to the entire area allotted, physical area allotted to him by the committee is 350 sq,ft. The learned Single Judge has allotted him the entire area of 500 sq. ft. without taking into consideration 30 per cent common area. we reduce the same to 350 sq. ft. physical area.


39. Mr. Balram Bhasin: (S. No. 3796/92 and rfa (. OS)No. 71/98):


(92)HE booked 500 sq. ft. , made payment to the extent of 93. 20 per cent of the total cost. On this basis, the allotment of super area by the Committee was proportionately reduced to 481 sq. ft. with physical area allotment as 337 sq. ft. The learned Single Judge has allotted him the entire 500 sq. ft. without considering the provision of 30 per cent common area. For the reasons stated above, the physical area allotted to him would stand reduced to 337 sq. ft.


41 and 42. Orilole Exports: (S. NO. 3043/90 and rfa (os)No. 69/97)


(93)IT booked two space i. e. 750 sq. ft. and 760 sq. Ft. respectively and paid 98. 31 per cent and 99. 20 per cent respectively. Accordingly, the allotment of super area was reduced to 737 sq. ft. and 754 sq. ft. respectively by the Committee which allotted physical area of 516 sq. ft. and 528 sq. ft. respectively. The learned Single Judge in the impugned judgment has held that on the basis of documents produced, this company established its claim. However, while making the allotment, the learned Single Judge allotted 900 sq. ft. on the First Floor, why area of 900 sq. ft. has been allotted has not been explained. As per the Committee, this company would be entitled to the allotment of 1491 sq. ft. as super area and 1044 sq. ft. as physical area. we modify the order of the learned Single Judge qua this company and substitute that of the Committee with the direction that this company be allotted 516 + 528 sq. ft. physical area.


43. Mr. Prabhat,mehta, (S. N0. l945/96 and CM No 51/2001)


(94)HE booked 440 sq. ft. and made payment of 104. 53 per cent and therefore allotting him super area of 440 sq. ft. The Committee allotted physical area of 308 sq. ft. The learned Single Judge has allotted him the entire area of 440 sq. ft. without making provision for common area. Therefore, his entitlement shall stand reduced to 308 sq. ft. of physteal area. He has filed CM challenging the direction of rs. 3,250/- per sq. ft.


44. Mr. Manish Garg : (S. No. 3662/92 and RFA (os)No. 117/97)


(95)HE booked 167 sq. ft. and made payment of 110. 12 per cent on the basis of which the Committee held that he was entitled to the entire super area with 117 sq. ft. physical area. 'the learned Single Judge has allotted him 160 sq. ft. without making provision for common area. He, therefore, would be entitled to 117 sq. ft. of physical area. He filed appeal challenging the direction of Rs. 3,250. 00 per sq. ft.


45. Mr. Rajiv Gupta:


(96)AS already discussed in Special Cases.


46. Mr. R. Mohan (HUF):


(97)THIS case has already been considered while dealing with the case of Rajiv Gupta Group.


47. Mysore Electronics: (RFA (OS)No. 56/98)


(98)IT booked an area of 1000 sq. ft. and made the payment to the extent of 113. 93 per cent The area allotted by the Committee was 1000 sq. ft. with physical area of 700 sq. ffc. The learned Single Judge has rejected its claim on the ground that it has not filed any suit. However, it has filed RFA (OS)No. 56/98. Since, we have entertained these appeals even when the suits arer not filed, for the reasons recorded above, the appeal is accepted and it would be entitled to physical area of 700 sq. ft.

48. Mr. Rahul Bhatnagar: (S. No. 3095/92 RFA (OS)No. 48/98


(99)HE booked 500 sq. ffc. and paid 117. 83 of the sale consideration. The Committee allotted him 500 sq. ft. with physical area of 350 sq. ft. The learned single Judge has dismissed his suit in so far as claim for allotment is concerned. Decree for Rs. 3,04,000. 00 with interest of 18 per cent is passed. The suit is dismissed on the ground that the plaintiff could not prove the agreement dated 3/02/1979. It is only because the learned Single Judge went by another contract dated 7/01/1987 which was after the cut off date. However, what was ignored by the learned single Judge is that initially agreement was with mr. Rahul Bhatnagar which was dated 3/02/1979 as the contract dated 7/01/1987 was the contract of assignment by which M/s Mysore electroplating Pvt. Ltd. , originally assigned the contract in favour of Mr. Rahul Bhatnagar. Therefore, it is the original date of agreement which is to be seen as assignment was with the consent of the skippers. Learned counsel for the Skippers, during the arguments, accepted this position The Judgment of the learned Single Judge is accordingly sot aside qua him. The suit is decreed. Mr. Bhatnagar is held entitled to 350 sq. ft. physical area. He filed appeal dial longing the direction of Rs. 3,250. 00 per sq. ft.


49. Mr. Yoginder Raj (S. No. 1336/92 and RFA (OS)NO. 136/97)


(100)HE booked 500 sq. ft. , made payment to the extent of 103. 25 per cent. The Committee allotted him 500 sq. ft. with physical area of 350 sq. ft. However, the learned Single Judge rejected the claim for specific performance and held that he would be entitled to refund of the amount. Reasoning given is that the he did not prove the original agreement to sell, although he appeared as a witness and had categorically stated that the original agreement was seized by the income-tax Department and Search List was produced as ex. P. 1 to prove this. This reasoning of the learned single Judge is not sustainable more so when the skippers are not disputing the agreement dated 5/05/1983. In the absence of any dispute, and further when the Committee was satisfied that such an agreement existed pursuant to which payment was made, the suit should have been decreed for specific performance, we accordingly set aside the judgment of the learned single Judge qua him and hold that he would be entitled to allotment of 350 sq. ft. physical area.


50. Mr. Sarabjit Singh: (S. No. 148 / 93 and RFA (OS)No. 10/98:


(101)HE booked 350 sq. ft. and made payment to the extent of 112. 12. percent. The Committee allotted 350 sq. ft. with physical area of 245 sq. ft. The learned single Judge has allotted the entire 350 sq. ft. without taking into consideration the common area. His allotment therefore shall stand reduced to 245 sq. ft. as recommended by the Committee. He filed appeal challenging the direction of rs. 3,250/- per sq. ft.


51. Smt,pushpa Kapoor (S. No. 2135/96 and, RFA (os)No. 3/98:


(102)SHE booked 225 sq. ft. and made payment to the extent of 98. 53 percent. The Committee proportionately allotted 222 sq. ft. with physical area of 155 sq. ft. The learned single Judge has allotted the entire 225 sq. ft. without taking into consideration the common area. Her allotment therefore shall stand, reduced to 155 sq. ft. as recommended by the Committee. THIRD FLOOR:


52. M/s Deena Paints (S. No. 2423/96 ,and. . RFA (OS). No,54/97)


(103)IT booked 750 sq. ft, made payment to the extent of 89. 44 per cent of sale consideration. The committee proportionately reduced the area to 671 sq. ft. with allotment of physical area as 470 sq. ft. In suit filed by it, the learned Single Judge has allotted the entire area of 750 sq. ft. without taking into consideration the lesser payment and without making provision For common space. As we have already held above, this approach of the learned Single Judge is not correct, this company would be entitled to 472 sq. ft. physical area.


53. Divya Industries : (. S. No. 2424/96 and RFA (OS), nos. . 52 and. . 53 / 97).


(104)IT booked 550 sq. ft. , made payment to the extent of 89. 44 per cent of sale consideration. The committee proportionately reduced the area to 492 sq. ft. with allotment of physical area as 344 sq. ft. In suit filed by it, the learned Single Judge has allotted the entire area of 500 sq. ft. without giving any reasons. However, for the reasons stated above, as the provision has to be made for common area, the physical area allotted to this company shall stand reduced to 344 sq. ft.


54. Mr. Vinod khanna (S. No. 3668/92 and RFA (O S)No. 72. /98:


(105)HE booked 550 sq. ft. made payment to the extent of 118. 50 per cent of sale consideration. The committee allotted 550 sq. ft. with allotment of physical area as 385 sq. ft. In suit filed by it, the learned Single Judge lias allotted the entire area of 550 sq. ft. without taking into consideration the common area. He would be entitled to 385 sq. ft. as recommended by the Cornrnittee. He filed appeal challenging the direction of Rs. 3,250. 00 per sq. ft. which shall be dealt with separately.


55. Shamsher Singh. (S. No. 2285/96 and RFA (os)No. 106/97):


(106)HE booked 570 sq. ft. , made payment to the extent of 109. 33 per cent of sale consideration. The committee allotted 570 sq. ft. with allotment of physical area as 399 sq. ft. In suit filed by him, ho claimed that he had booked 600 sq. ft. and the Skippers had wrongly reduced it to 570 sq. ft. The learned single Judge accepted this plea and passed the decree of 600 sq. ft. He filed appeal challenging the direction of Rs. 3,250. 00 per sq. ft. Perusal of the judgment of the learned Single Judge shows that the agreement proved in this case was for 600 sq. ft. for which the entire payment was made. Therefore, he shall be entitled to 600 sq. ft. However, making provision of 30 per cent common area, the physical allotment would be 420 sq. ft.


56. Dr. Surinder Bir Singh and. Ors. (S. No. 3781/92 and RFA (os)No. 93/97:


(107)HE booked 550 sq. ft. , made payment to the extent of 191. 08 per cent of sale consideration. The committee allotted 550 sq. ft. with allotment of physical area as 385 sq. ft. In suit filed by him, the learned Single Judge has allotted 500 sq. ft. without giving any reasons and without making provision for common area. After making provision for common area, the physical area would come to 385 sq. ft. He filed appeal challenging the direction of Rs. 3,250. 00 per sq. ft.


57. Mr. J. S. Kohli (S. No. 2529/96 and RFA (OS)No. 37/98 :


(108)HE booked 750 sq. ft. , made payment to the extent of 110. 08 per cent of sale consideration. The committee allotted 750 sq. ft. with allotment of physical area as 525 sq. ft. In suit filed by him, the learned Single Judge has allotted 700 sq. ft. without making provision for common area. As we have already held above, he shall be entitled to allotment of 525 sq. ft. physical area as recommended by the Committee. He filed appeal challenging the direction of payment of rs. 3,250/- per sq. ft.


58. Mr. Rajinder Sehgal (S. No. 3003/96 andrfa (OS)N0. 119/97.


(109)HE booked 750 sq. ft. , made payment to the extent of 85. 80 per cent of sale consideration. The committee proportionately reduced the area to 644 sq. ft. with allotment of physical area as 451 sq. ft. In suit filed by him, the learned Single Judge has allotted him 700 sq. ft. without giving any reasons and without making provision for common area and not considering the less payment made by him. we hold that the recommendation of the Committee was correct and he is entitled to 451 sq. ft. physical area. He filed appeal challenging the direction of payment of rs. 3,250/- per sq. ft.


59. Mr. Rajiv ohri (S. No. 3610/90 andrfa. (OS)No,, 6/98):


(110)HE booked 550 sq. ft. , made payment to the extent of 106. 04 per cent of sale consideration. The committee allotted 550 sq. ft. with allotment of physical area as 385 sq. ft. In suit filed by him, the learned Single Judge has allotted 500 sq. ft. without giving any reasons and without making provision for common area. Therefore, the area shall stand reduced to 385 sq. ft. physical area. He filed appeal challenging the direction of payment of Rs;3,250/- per sq. ft.


60. Ms. Kumud Malik:


(111)SHE booked 500 sq. ft. , made payment to the extent of 115. 65 per cent of sale consideration. the committee allotlod 500 sq. ft. with allotment of physical area as 350 sq. ft. Mr. Manohar Lal Sharda and his wife Mrs. Subhra sharda filed suit No. 2385/96. Their case is that ms. Kumud Malik booked 500 sq. ft. area at the rate of rs. 415 per sq. ft. and agreement dated 29/04/1978 was executed. She assigned rights in the said flat to m/s Central Estate Agency who in turn assigned the same to them on 19/07/1986. It may be mentioned that the Committee accepted the claim and allotted flat no. 306-8 in the name of Ms. Kumud Malik the original allottee. However, the learned Single Judge lias dismissed the suit on the ground that transaction does not appear to be genuine. The reasons given by the learned Single Judge do not appear to be correct inasmuch as the claim was made and established before the Committee and even the Skippers admitted the validity of the agreement and payment of the amount by means of cheque dated 29/04/1978. Since the receipt was issued on 5/03/1979 the learned single Judge has presumed that it was on this date that cheque was given which was stale cheque. This presumption is clearly incorrect inasmuch as the receipt can be issued at a later date. Merely because the receipt is dated 5/03/1979 would not show that the cheque dated 29/04/1978 was given on 5/03/1979. Further the Skippers have accepted the fact that cheque dated 29/04/1978 was given and encashed also. Therefore, we do not agree with the learned Single Judge that the transaction in question is not genuine. The impugned Judgment in suit no. 2385/96 is accordingly set aside. The appeal (RFA (OS)No. 70/97)of the appellants is accepted. As per the recommendations of the Committee, they would be entitled to 350 sq. ft. physical area.


61. Mr. P. Oudhbir (RFA (OS)No. 21/98):


(112)HE booked 500 sq. ft. , made payment to the extent of 117. 83 per cent of sale consideration. The committee allotted 500 sq. ft. with allotment of physical area as 350 sq. ft. There is no discussion about this case by the learned Single Judge as suit was not filed. He has filed appeal. The appeal is accepted. Me hold that he would be entitled to physical area of 350 sq. ft. as recommended by. the Committee.


62. Sh. Inderjeet singh (S. No. 3044/96 and RFA (OS)No. 95/97:


(113)HE booked 500 sq. ft. , made payment to the extent of 122. 02 per cent of sale consideration. The committee / allotted 500 sq. ft. with allotment of physical area as 350 sq. ft. In suit filed by him, the learned Single Judge has allotted 500 sq. ft. without making provision for common area. Therefore, the area shall stand reduced to 350 sq-ft. physical area. He filed appeal challenging the direction of payment of Rs. 3,250. 00 per sq. ft.


63. Mrs. Swaran Kumar (S. No. 3ll4/92 and RFA (OS)134/97):


(114)SHE booked 760 sq. ft. , made payment to the extent of 117. 83 per cent of sale consideration. The committee allotted 760 sq. ft. with allotment of physical area as 532 sq. ft. In suit filed by her, the learned Single Judge lias allotted 750 sq. ft. without giving any reasons and without making provision for common area. After making provision for common area, the physical allotment would bo 532 sq. fb. She Filed appeal challenging the direction of payment of Rs. 3,250. 00 per sq. ft.


64. Mr. Vijender Singh (S. No2284/96 andrfa (OS). 78/97):


(115)HE booked 1275 sq. ft. , made payment to the extent of 80. 02 per cent of sale consideration. The committee proportionately reduced the area to 1020 sq. ft. with allotment of physical area as 714 sq. ft. The learned Single Judge dismissed the suit holding that he has not been able to prove the agreement dated 14/01/1985. It may be mentioned that Mr. Vijender Singh was the owner of the land and his case has been dealt with separately in the 'special Cases'. However, in addition to claim as owner, this is the case where he had booked the space on payment for which two agreements both dated 14/01/1985 were entered into. One was for 1000 sq. ft. on the Third Floor and the other was 275 sq. ft. on the 10th Floor, while rejecting the claim, the learned Single Judge has given the following reason:


"225. This case is not on the basis of ownership but on the basis of agreements. Mr. Ajay Singh was examined as P. W. I on 8. 11. 1996. According to him, there was an agreement dated 13. 5. 1982 for 1275 sq. ft. comprising 1000 sq. ft. on the third Floor and 275 sq. ft. on the 10th floor. The total consideration was rs. 4,46,000/ -. The agreements are marked exs. P. 1 and P. 2. The receipt of the amount has been acknowledged by Skipper sales Pvt. Ltd. on 9. 4. 1906 which is marked as Ex. P. 3. There is a letter dated 19. 6. 1987 as Ex. P. 4. According to him, the Committee had allotted 1020 sq. ft. on the Third Floor as per the final Report. Mr. Jaswant Singh, Vice president of the Flat Buyers Association was permitted to cross-examine Mr. AJay singh. In the cross-examination Mr. AJay singh would state that the sum of rs. 4,68,000/- was transferred to the account of the builder from the account of Mr. Manmohan Nath, who is his uncle. Tills transfer is effected on 30. 6. 1984. He admits that no" orders were issued by the Income Tax Department for this transfer. Mr. Manmohan Nath has not been examined in this case. The transfer of the amount is not proved. Dr. Manmohan nath examined himself as P. W. 1 in his suit No. 2271/96 on 11. 10. 1996. In the cross examination he stated that he owed money to Mr. Vijender Singh and he brought about a transfer entry to show the payment of Rs. 4,68,000. 00. He would state "the entry was debited to Mr. Vijender singh and credited to Skippers", when he was asked whether there was any letter evidencing a loan due from Mr. Vijender singh to him, he said there was no letter. He was also not in a position to state the date or month or year of the loan. It was by transfer entry. The amount was paid over by Mr. Vijender singh. what is stated by Dr. Manmohan nath, should be proved by production of relevant documents? In the absence of relevant materials, I am not able to see that there was any transaction between mr. Vijender singh and Dr. Manmohan Nafch and the amount was paid by Dr. Manmohan nath to Skipper Sales Pvt. Ltd. , by transfer entry. To substantiate this, dr. Manmohan Nath should have produced his transaction with Skippers Sales Pvt. Ltd. 226. In the light of this, I have no hesitation in coming to the conclusion that Mr. Vijender Singh has not proved his agreement and, therefore, his claim for allotment is rejected. The suit is accordingly dismissed.


(116)WE do not agree with the findings of the learned Single Judge. In so far as agreements dated 14/01/1985 and 13/05/1982 are concerned, the same were proved as Exs. P. l and P. 2. The learned single Judge has stated in detail the manner in which the consideration is paid on which, it appears that, the learned Single Judge bad some doubt Inasmuch as according to the witness produced. Dr. Manmohan Nath who had allegedly made the payment to Mr. Vijender Singh had made the payment to the Skippers on behalf of mr. Vijender Singh. what is stated is that the appellant did not prove the transaction between mr. Vijender Singh and Dr. Manmohan Nath. That was not required to be proved. The relevant aspect to be considered is as to whether payment was received by the skippers or not, whether by transfer entry or otherwise. The receipt of this amount was admitted by the Skippers itself vide receipt dated 9/04/1986 which was proved as Ex. P. 3. Therefore, the agreement for booking the space as well as the payment was proved before the learned Single Judge the suit should not have been dissmissed. we, therefore, reverse the findings of the learned Single Judge and decree the suit. In the appeal it is stated by the appellant that amount paid was Rs. 4,68,000. 00 which is not in dispute. However, what is stated is that the consideration was also Rs. 4,68,000. 00 and therefore the total consideration was paid. The Committee has however stated that total cost was Rs. 5,97,338. 00 and therefore the payment is made to the extent of 80. 02 per cent. The appellant has not been able to show how the consideration was Rs. 4,68,000. 00 and not rs. 5,97,338/ -. We, therefore, accept the figures of the Committee and hold that Mr. Vijender Singh would be entitled to proportionate allotment of 1020 sq. ft. with physical area as 714. The suit is decreed in this manner.


65. Ms. Champa, Wati (RFA (OS)No 18/98):


(117)SHE booked 140 sq. ft. , made payment to the extent of 102. 84 per cent of sale consideration. The committee allotted 140 sq. ft. with allotment of physical area as 98 sq. ft. There is no discussion about this case by the. learned Single Judge as suit was not filed. She has filed appeal. The appeal is accepted, we hold that she would be entitled to physical area of 98 sq. ft. as recommended by the Committee.


66. M/s. Sona Enterprises (,s, No. 3068/96 and RFA (OS)No. 112/97):


(118)IT booked 140 sq. ft. , made payment to the extent of 94. 08 per cent of sale consideration. The committee proportionately reduced the area to 132 sq. ft. with allotment of physical area as 92 sq. ft. This claim is rejected by the learned Single judge on the ground that there is no space available in the Third Floor although holding that the agreement was valid and acceptable one, and therefore, direction is issued to refund the payment of Rs. 67,960. 00. Since the area would be available now, this flat buyer is entitled to 132 sq. ft. super area and 92 sq. ft. as physical area.


67. Mr, Pramod Bhatia (S,no, 3974/9l):


(119)HE booked 465 sq. ft. , made payment to the extent of 74. 44 per cent of sale consideration. Committee proportionately reduced the area to 346 sq. ft. with allotment of physical area as 242 sq. ft. This claim is rejected by the learned Single judge on the ground that there is no space available in the Third Floor although holding that the agreement was valid and acceptable one, and therefore, direction is issued to refund the payment of Rs. 4 ,12,669/ -. Since the area would be available now, this flat buyer is entitled to 242 sq. ft. physical area.


68. Mrs. S. Malhotra and Ors. (S. No. 2291 / 96)and RFA (OS)No. 102/97 :


(120)THEY booked 300 sq. ft. , made payment to the extent of 111. 14 per cent of sale consideration. The committee allotted the entire area of 300 sq. ft. with allotment of physical area as 210 sq. ft. This claim is rejected by the learned Single judge on the ground that there is no space available in the Third Floor although holding that the agreement was valid and acceptable one, and therefore, direction is issued to refund the payment of Rs. 2,75,300. 00. Since the area would be available now, this Fiat buyer is entitled to 2102 sq. ft. physical area.


71. Mrs. Krishna Bhanotra (S. No. 2290 / 96)


(121)SHE booked 225 sq. ft. , made payment, to the extent of 114. 89 per cent of sale consideration. Committee allotted the entire area of 225 sq. ft. sq. ft. with allotment of physical area as 158 sq. ft. This claim is rejected by the learned Single judge on the ground that there is no space available in the Third Floor although holding that the agreement was valid and acceptable one, and therefore, direction is issued to refund the payment of Rs. 2,38,000/~. Since the area would be available now, this flat buyer is entitled to 158 sq. ft. physical area.


FOURTH FLOOR : 72. DR. Manmohan Nath (S. No. 2271 / 96 and RFA (OS)No. 72 / 97


(122)HE booked 4085 sq. ft. , made payment to the extent of 112. 62 per cent of sale consideration. The committee allotted him the entire area of 4085 sq. ft. with allotment of physical area as 2860 sq-ft. The learned Single Judge has given him the entire area of 4085 sq. ft. without making the provision for common area. After making the provision for 30 per cent common area. his entitled shall stand reduced to 2860 sq. ft. as recommended by the committee. He has filed appeal challenging the direction of payment of Rs. 3,250. 00 per sq. ft.


73. Mrs. Laxmi Devi Choraria (S. No. 2213 / 96 and RFA (OS)No. 108 / 98):


(123)SHE booked 140 sq. ft. , made payment to the extent of 69. 93 per cent of sale consideration. Committee proportionately reduced the area to 98 sq. ft. sq. ft. with allotment of physical area as 69 sq. ft. Her claim is rejected by the learned Single judge on the ground that there is no space available in the Fourth Floor after allotment to Dr. Manmohan Nath. It may be stated here here that after allotting the area of 4085 sq. ft. to Dr. Manmohan Nath the learned Single judge held that Mr. Vijender Singh as owner shall be entitled to rest of the space in the 4th Floor i. e. 3375 sq. ft. and therefore all other claims of 4th floor are rejected on the ground that no space is available. Since we propose to proceed on the basis of committee's recommendation, all these persons shall be entitled to the space. She is accordingly held to be entitled to 69 sq. ft. as physical area.


74. Ms. Bala Gupta (RFA (OS)No. 23/99)


(124)SHE booked 140 sq. ft. , made payment to the extent of 101. 86 per cent of sale consideration. Committee allotted the entire area of 140 sq. ft. sq. ft. with allotment of physical area as 98 sq. ft. Her claim is rejected by the learned Single judge on the ground that she did not file any suit. As this approach of the learned-Single Judge is held to be not correct, she would be entitled to 98 sq. ft. physical area.


75. MR. D. Singh and Ors. (S. No. 3863 / 90 and RFA (OS)No. 110/ 97):


(125)THEY booked 369 sq. ft. , made payment to the extent of 115. 46 per cent of sale consideration. Committee allotted the- entire area of 369 sq. ft. sq. ft. with allotment of physical area as 258 sq. ft, their claim is rejected by the learned Single judge on the ground that there is no space available in the Fourth Floor. As already mentioned above, this was not the correct approach, they would be entitled entitled to 258 sq. ft. physical area.


76. Mr. N. S. Ahluwalia (S. No. 2356/92 and RFA (OS)No 101 / 97).


(126)HE booked 502 sq. ft. , made payment to the extent of 102. 71 per cent of sale consideration. Committee allotted the entire area of 502 sq. ft. sq. ft. with allotment of physical area as 351 sq. ft. This claim is rejected by the learned Single judge on the ground that there is no space available in the Fourth Floor. As already mentioned above, this was not the correct approach, he would be entitled entitled to 351 sq. ft. physical area.


77. Mr. Arun Kapoor (S. No. 2292/96 and RFA (OS)No. 91/97).


(127)HE booked 300 sq. ft. , made payment to the extent of 111. 14 per cent of sale consideration. Committee allotted the entire area of 300 sq. ft. sq. ft. with allotment of physical area as 210 sq. ft. This claim is rejected by the- learned Single judge on the ground that there is no space available in the Fourth Floor. As already mentioned above, this was not the correct approach, lie would be entitled to 210 sq. ft. physical area.


79 Mr. Pramod Khanna (S. No. 1990/96 and RFA (OS)No. 35/98):


(128)HE booked 300 sq. ft. , made payment to the extent of 93. 76 per cent of the sale consideration. The Committee proportionately reduced the area to 281 sq. ft. sq. ft. with allotment of physical area as 197 sq. ft. His claim is rejected by the learned Single judge on the ground that there is no space available in the Fourth Floor. As already mentioned above, this was not the correct approach, since the area would now be available, he would be entitled to 197 sq. ft. physical area as recommended by the Committee.


FIFTH FLOOR : 80-83 and 85: Ms. Anju Jain , Mr. Vinod Kumar Jain , Mr. Vineet Jain and Mr. Munish Jain :


(129)CLAIMS of these four persons, namely, Ms. Anju jain, Mr. Vinod Kumar Jain, Mr. Vineet Jain and Mr. Munish jain who booked space on 5th Floor belonging to the group of Jain Shudh vanaspati have already been treated in 'special Cases*.


84. Divya Enterprises : (S. No. 2425/96)


(130)THIS company had booked 750 sq. ft. , made payment to the extent of 88. 0 per cent and the committee proportionately reduced the area to 660 sq. ft. with allotment of physical area as 462 sq. ft. The learned Single Judge has allotted the entire area of 750 sq. ft. without giving consideration to lessor payment and the common area. Therefore, this allotment would stand substituted by 462 sq. ft. physical area.

86- Ms. Cherry Aggrawal (Decd.)thr ' LRs. (S. No. 3621/92 and RFA (OS)No. 133/97):


(131)SHE had booked 500 sq. ft. , made payment to the extent of 120. 31 per cent of sale consideration. Committe allotted the entire area of 500 sq. ft. sq. ft. with allotment of physical area as 350 sq. ft. The learned Single allotted the entire area of 500 sq. f. without considering the 30 per cent common area. As already stated above, we hold that she would be entitled to 350 sq. ft. physical area as recommended by the Committee. She filed appeal challenging the direction of payment of Rs. 3,250. 00 per sq. ft.


87. Ms. Ishwinder Singh (Suit No. 2180/96 and RFA (OS)No. 2/98):


She booked 500 sq. ft. , made payment to the extent of 119. 84 per cent of sale consideration. Committee -allotted the entire area of 500 sq. ft. sq. ft. with allotment of physical area as 350 sq. ft. The learned Single allotted the entire area of 500 sq. f. without considering the 30 per cent common area. As already stated above, we hold that she would be entitled to 350 sq. ft. physical area as recommended by the Committee. 88. Mr. Bimal Sangari (S. No 2242/96 and RFA (OS)No. 14/98):


(132)HE booked 140 sq. ft. , made payment to the extent of 77. 83 per cent of sale consideration. The committee proportionately reduced the area to 109 sq. ft. sq. ft. with allotment of physical area as 76 sq. ft. The learned Single allotted the entire area of 140 sq. f, without considering the lessor payment and provision for 30 per cent common area. As already stated above, we hold that he would be entitled to 76 sq. ft. physical area as recommended by the Committee. He filed appeal challenging the direction of payment of Rs. 3,250. 00 per sq. ft.


90. Ms. Varsha Bhatia (S. No. 2866/92 and RFA (OS)No. 49/98):


(133)SHE booked 140 sq. ft. , made payment to the extent of 114. 60 per cent of sale consideration. The committee allotted the entire area of 140 sq. ft. sq. ft. with allotment of physical area as 98 sq. ft. The learned Single allotted the entire area of 140 sq. f. without considering the provision for 30 per cent common area. As already stated above, wo hold that he would be entitled to 98 sq. ft. physical area as recommended by the Committee. She filed appeal challenging the direction of payment of Rs. 3,250. 00 per sq. ft.


91. Mr. Prem Chopra (CM No. 498/2000):


(134)HE booked 500 sq. ft. , mode payment to the extent of 90. 32 per cent of sale consideration. Committee proportionately reduced the area to 452 sq. ft. sq. ft. with allotment of physical area as 316 sq. ft. There is no discussion about this case by the learned Single Judge as suit was not filed. However, he has filed CM pursuant to public notice issued in the appeal, we hold that he would be entitled to physical area of 316 sq. ft. as recommended by the Committee.

92. Mrs. Neeru /aaina Jain (S. No. 1683/92):


(135)THEY booked 200 sq. ft. , made payment to the extent of 82. 48 per cent of sale consideration. The committee proportionately reduced the area to 165 sq. ft. sq. ft. with allotment of physical area as -116 sq. ft. The learned Single allotted the entire area of 200 sq. f. without considering lessor payment and provision for 30 per cent common area. As already stated above, wo hold that they would be entitled to 116 sq. ft. physical area as recommended by the committee.


6th FLOOR : 93. Mr. Arjun Singh Gupta (S. No. 1931/96 and RFA (0s)No. 146/97):


(136)HE booked 550 sq. ft. , made payment, to the extent of 122. 82 per cent of sale consideration. The committee allotted the entire area of 550 sq. ft. sq. ft. with allotment of physical area as 385 sq. ft. The learned Single allotted the entire area of 550 sq. ft. without considering the provision for 30 per cent common area. As already stated above, we hold that he would be entitled to 385 sq. ft. physical area as recommended by the Committee. He filed appeal challenging the direction of payment of Rs. 3,250. 00 per sq. ft.


94. Dr. Usha Sikka (S. No. 1926/96 and RFA (OS)No. 139/97):


(137)SHE booked 550 sq. ft. , made payment to the extent of 119. 19 per cent of sale consideration. The committee allotted the entire area of 550 sq. ft. sq. ft. with allotment of physical area as 385 sq. ft. The learned Single allotted the entire area of 550 sq. ft. without considering the provision for 30 per cent common area. As already stated above, we hold that she would be entitled to 385 sq. ft. physical area as recommended by the Committee. She filed appeal challenging the direction of payment of Rs. 3,250. 00 per sq. Ft.


95. Mr. Bhim Sen Gupta (S. No. 1928/96 and RFA (OS)No,98/97):


(138)HE booked 750 sq. ft. , made payment to the extent of 162. 23 per cent-of sale consideration. The committee allotted the entire area of 750 sq. ft. sq. ft. with allotment of physical area as 525 sq. ft. The learned Single allotted the entire area of 750 sq. ft. without considering the provision for 30 per cent common area. . As already stated above, we hold that he would be entitled to 525 sq. ft. physical area as recommended by the Committee. He filed appeal challenging the direction of payment of Rs. 3,250. 00 per sq. ft.


96. Ms. Priyanka Mehta (S. No. 2163/96 and RFA (OS)12/98):


(139)SHE booked 590 sq. ft. , made payment to the extent of 236. 71 per cent of sale consideration. The committee allotted the entire area of 590 sq. ft. sq. ft. with allotment of physical area as 413 sq. ft. The learned Single allotted the entire area of 590 sq. ft. Without considering the provision for 30 per cent common area. As already stated above, we hold that she would be entitled to 413 sq. ft. physical area as recommended by the Committee. She filed appeal challenging the direction of payment of Rs. 3,250. 00 per sq. ft.


97. Mr. Karan Mehta (S. No. 2162/96 (RFA (OS)No. 13/98)


(140)HE booked 590 sq. ft. , made payment to the extent of 236. 71 per cent of sale consideration. The committee allotted the entire area of 590 sq. ft. sq. ft. with allotment of physical area as 413 sq. ft. The learned Single allotted the entire area of 590 sq. ft. without considering the provision for 30 per cent common area. As already stated above, we hold that he would be entitled to 413 sq. ft. physical area as recommended by the Committee. He filed appeal challenging the direction of payment of Rs. 3,250. 00 per sq. ft.


98. Ms. Ruby Khanna (S. No. 1879/96 and RFA (OS)No. 36/98)


(141)SHE booked 580 sq. ft. , made payment to the extent of 119. 84 per cent of sale consideration. The committee allotted the entire area of 580 sq. ft. sq. ffc. with allotment of physical area as 406 sq. ft. The learned Single allotted the entire area of 580 sq. ft. without considering the provision for 30 per cent common area. As already stated above, we hold that she would be entitled to 406 sq. ft. physical, area as recommended by the Committee. She has filed appeal challenging the direction of payment of Rs. 3,250. 00 per sq. ft.


99. Mr. Inderjit Singh (S. No. 2161/96 and RFA (OS)No. 83/97):


(142)HE booked 750 sq. ft. , made payment to the extent of 114. 69 per cent of sale consideration. The committee allotted the entire area of 750 sq. ft. sq. ft. with allotment of physical area as 525 sq. ft. The learned Single allotted the entire area of 750 sq. ft. without considering the provision For 30 per cent common area. As already stated above, we hold that he would be entitled to 525 sq. ft. physical area as recommended by the Committee. He filed appeal challenging the direction of payment of Rs. 3,250. 00 per sq. ft.


100. Mr. Narasimhan (S. No. 1181/91 and RFA (OS)No. 20/98)


(143)HE booked 550 sq. ft. , made payment to the extent of 116. 15 per cent of sale consideration. The committee allotted the entire area of 550 sq. ft. sq. ft. with allotment of physical area as 305 sq. ft. The learned Single allotted the entire area of 550 sq. ft. . without considering the provision for 30 per cent. common area. As already stated above, we hold that he would be entitled to 385 sq. ft. physical area as recommended by the Committee. He filed appeal challenging the direction of payment of Rs. 3,250. 00 per sq. ft.


101. Mr. Amarjit Singh (RFA (OS)No. 147/97):


(144)HE booked 550 sq. ft. , made payment to the extent of 118. 20 per cent of sale consideration. The committee allotted the entire area of 550 sq. ft. sq. ft. with allotment of physical area as 385 sq. ft. He filed suit No. 2354/96. The learned Single judge has decreed the suit but changed the allotment from 6th to 7th Floor which it appears that has been accepted by the appellant as the appellant lias filed appeal only challenging the direction of deposit of rs. 3,250/- per sq. ft.


102. Mr. Sarabjeet Singh (S. No. 3620/92 and RFA (OS)132/97):


(145)HE booked 500 sq. ft. , made payment to the extent of 70. 06 per cent of sale consideration. The committee proportionately reduced the area to 350 sq. ft. with allotment of physical area as 245 sq. ft. The learned Single allotted the entire area of 500 sq. ft. without considering lessor payment and the provision for 30 per cent common area. we hold that he would be entitled to 245 sq. ft. physical area as recommended by the Committee. He filed appeal challenging the direction of payment of Rs. 3,250. 00 per sq. ft.


103. Mr. Anil K. Arora (S. No. 1935/96 and RFA (OS)90/97):


(146)HE booked 424 sq. ft. , made payment to the extent of 189. 53 per cent of sale consideration. The committee allotted the entire area of 424 sq. ft. sq. ft. with allotment of physical area as 297 sq. ft. However, in suit filed by him, he stated that his agreement was for 375 sq. ft. and not for 424 sq. ft.-Therefore, the learned Single Judge allotted him 375 sq. ft. Since he is claiming that the booking was for 375 sq. ft. , his entitlement would be 375 sq. ft. as held by the learned Single Judge. However, after making provision for common area, his entitlement would come to 263 sq. ft. He filed appeal challenging the direction of payment of Rs. . 3,250. 00 per sq. ft.


104. Mr. Arvind Thirani (S. No. 2256/96 and RFA (OS)73/97):


(147)HE booked 1000 sq. ft. , made payment to the extent of 112. 72 per cent of sale consideration. The committee allotted the entire area of 1000 sq. ft. sq. ft. with allotment of physical area as 700 sq. ft. The learned Single allotted the entire area of 1000 sq. ft. without considering the provision for 30 per cent common area. After making the provision for common area, we hold that he would be entitled to 700 sq. ft. physical area as recommended by the Committee. He filed appeal challenging the direction of payment of Rs. 3,250. 00 per sq. ft.


105. Mr. Naqsudan Lal (S. No. 3115/92 and RFA (OS)9/98):


(148)HE booked 750 sq. ft. , made payment to the extent of 118. 41 per cent of sale consideration. The committee allotted the entire area of 750 sq. ft. sq. ft. with allotment of physical area as 525 sq. ft. The learned Single allotted him the area of 600 sq. ft. without giving any reason. Keeping in view the area available although the allotment stands increased to 750 sq. ft. after making provision for common area, he is allotted 525 sq. ft. He filed appeal challenging the direction of payment of Rs. 3,250. 00 per sq. ft.


106. Ms. Indira Duggal (S. No. 3297/91 and RFA (OS)120/97):


(149)SHE booked 500 sq. ft. , mode payment to the extent of 78. 98 per cent of sale consideration. The committee proportionately reduced the area to 395 sq. ft. sq. ft. with allotment of physical area as 277 sq. ft. It. may be stated that the Committee accommodated her on 11th Floor and the learned Single judge while rejecting her claim, noted that 11th Floor has already been allotted to william Jacks and Co. and that when she had entered into agreement on 6th Floor, there can be no allotment in other floor. This reasoning is not correct inasmuch as there are various other persons who have been allotted space on different floors. Even in the case of William Jacks and Co. and rajiv Gupta allotment on different floors given. The appeal is accepted. The judgment of the learned Single judge qua her is set aside and she would be entitled to 277 sq. ft. physical area as recommended by the committee and can be accommodated on llth Floor. Since the area of william Jacks and Co. also stands reduced, there would be area available on (. his Floor.


107. Mr. Shashi Bhushan (S. No. 2125/94 and RFA (OS)121/97):


(150)HE booked 750 sq. ft. , made payment to the extent of 96. 18 per cent of sale consideration. The committee proportionately reduced the entire area to 72. 1 sq. ft. sq. Ft. . with allotment of physical area as 505 sq. ft. The learned Single Judge rejected his claim on the ground that no space was available on 6th Floor. He has filed appeal. For the reasons stated in the case of Ms. Indira Duggal, he would also,be entitled to 505 sq. ft. physical area as recommended by the committee as the space would now be available on 6th floor.


108. Hindustan Oils (S. No. 2192/96 and RFA (OS)66/97):


(151)THIS company booked 500 sq. ft. , made payment to the extent of 124. 19 per cent of sale consideration. The Committee allotted the entire area of 500 sq. ft. sq. ft. with allotment of physical area as 350 sq. ft. The learned Single Judge rejected its claim on the ground -that no space was available on 6th Floor. This company has filed appeal. For the reasons stated above, this company would also be entitled to 350 sq. ft. physical area as recommended by the Committee as the space would now be available on 6th Floor.


110. Mr. Kailash Kathuria (RFA (OS)22/98):


(152)HE booked 140 sq. ft. , made payment to the extent of 90. 20 per cent of sale consideration. The committee proportionately reduced the area to 127 sq. ft. with allotment of physical area as 88 sq. ft. The learned Single Judge rejected his claim on the ground that he has not filed suit. However, he lias filed appeal. As we are accepting such appeals he shall be entitled to 88 sq. ft. physical area as recommended by the Committee.


111. Sona Enterprises (S. No. 3071/96 and RFA (OS)124/97):


(153)THIS company booked 140 sq. ft. , made payment. to the extent of 94. 08 per cent of sale consideration. The Committee proportionately reduced the area to 132 sq. ft. with allotment of physical area as 92 sq. ft. The learned Single Judge rejected its claim on the ground that no space was available on 6th Floor. The learned Single Judge has not adopted an uniform policy as persons are accommodated on other floors. In this case, the Committee had accommodated it on 3rd floor. This company has filed appeal. The appeal is accepted. This company would be entitled to 92 sq. ft. physical area as recommended by the Committee.


112. Mrs. Anju Ghai (S. No. 2991/92)


(154)SHE booked 500 sq. Ft. , made payment to the extent of 86. 55 per cent of sale consideration. The committee proportionately reduced the area to 433 sq. ft. with allotment of physical area as 303 sq. ft. The learned Single Judge rejected her claim on the ground that no space was available on 6th Floor. The learned Single Judge has not adopted an uniform policy as persons are accommodated on other floors. In this case, the Committee bad-accommodated her space on 11th Floor. Since the area would now become available on the 11th Floor, we hold that she is entitled to 303 sq. ft. physical area on llth Floor as recommended by the Committee.


113. Mrs. Sarojini Choudhary (S. No. 2086/966 and RFA (OS)126/97):


(155)SHE booked 760 sq. ft. , made,payment to the extent of 138. 92 per cent of sale consideration. The committee allotted the entire area of 760 sq. ft. with allotment of physical area as 532 sq. ft. The learned Single Judge rejected her claim on the ground that no space was available on 6th Floor. The learned Single Judge has not adopted an uniform policy as persons are accommodated on other floors. In this case, the Committee had accommodated her on llth floor. She has filed appeal. The appeal is accepted. She would be entitled to 532 sq. ft. physical area as recommended by the Committee.


114 116 and 117. R,mohan (HUF)


(156)IT has already been considered while dealing with the case of Rajiv Gupta group


115. Mr. Arvind Sharma (S. No. 2195/96 and RFA (OS)42/98):


(157)HE booked 140 sq. ft. , made payment to the extent of 124. 60 per cent of sale consideration. The committee allotted him the entire area of 140 sq. ft. with allotment of physical area as 98 sq. ft. The learned Single Judge rejected its claim on the ground that no space was available on 6th Floor and 10th Floor. The learned single Judge has not adopted an uniform policy as persons are accommodated on other floors. In this case, the Committee had accommodated him on 7th Floor. He has filed appeal. The appeal is accepted. He would be entilled to 98 sq. ft. physical area as recommended by the Committee.


118. Ms. Usha/manjari and Anjali Jain (S. No. 2212/96 and CM No. 519/2000)


(158)THEY had booked 550. sq-ft. , made payment to the extent of 1. 06. 11 per cent of sale consideration. The Committee allotted them the entire area of 550 sq. ft. with allotment or physical area as 385 sq. ft;. . The learned' Single judge allotted them the entire area of 550 sq. ft. without making provision for common area. After making provision for common area, their entitlement would come to 385 sq. ft. physical area as recommended by the Committee.


119. Mr. Iqbal Krishan (S. No. 2902/96)


(159)HE booked 550 sq. Ft. , made payment to the extent of 75. 29 per cent of sale consideration. The committee propertionately reduced the area to 414 sq. ft. with allotment of physical area as 290 sq. ft. The learned Single judge allotted him the entire area of 550 sq. ft. without considering the less or payment and provision for common area. we hold that he shall be entitled to 290 sq. ft. physical area as recommended by the Committee.


120. Mrs, Veena Bajaj (S. No. 815/91)


(160)SHE booked 750 sq. ft. , made payment to the extent of 120. 19 per cent of sale consideration. The committee allotted her the entire area of 750 sq. ft. with allotment of physical area as 525 sq. ft. The learned Single Judge allotted her the entire area of 750 sq. ft. without considering the provision for common area. we hold that she shall be entitled to 525 sq. ft. physical area as recommended by the Committee.


121. O. P. Bajaj/shalini (S. No. 813/91)


(161)HE booked 750 sq. ft. , made payment to the extent of 78. 78 per cent of sale consideration. The committee proportionately reduced the area to 591 sq. ft. with allotment of physical area as 414 sq. ft. The learned Single Judge allotted him the entire area of 750 sq. ft. without considering the lessor payment and provision for common area. we hold that he shall be entitled to 414 sq. ft. physical area as recommended by the Committee.


122. Mr. Vipin Kapoor (S. No. 2286/96)


(162)HE booked 750 sq. ft. , made payment to the extent of 122. 59 per cent of sale consideration. The committee allotted him the entire area of 750 sq. ft. with allotment of physical area as 525 sq. ft. The learned Single Judge allotted him the entire area of 750 sq. ft. without considering the provision for common area. we hold that he shall be entitled to 525 sq. ft. physical area as recommended by the Committee.


123. Mrs. Pratima Mukhi (S. No. 2269/96 and RFA (OS)No. 16/98)


(163)SHE booked 500 sq. ft. . , made payment to the extent of 118. 98 per cent of sale consideration. The committee allotted her the entire area of 500 sq. ft. with allotment of physical area as 350 sq. ft. The learned Single Judge allotted her the entire area of 500 sq. ft. without considering the provision for common area. He hold that she shall be entitled to 350 sq. ft. physical area as recommended by the Committee. She filed appeal challenging the direction of payment of Rs. 3,250. 00 per sq. ft.


124. Virender Bahri and Sons (S. No. 3752/92 and RFA (OS)60/98


(164)HE booked 550 sq. ft. , made payment to the extent of 128. 20 per cent of sale consideration. The committee allotted the entire area of 550 sq. ft. with allotment of physical area as 385 sq. ft. The learned Single Judge allotted him the entire area of 550 sq. ft. without considering the provision for common area. we hold that he shall be entitled to 385 sq. ft. physical area as recommended by the Committee. He filed appeal challenging the direction of payment of-Rs. 3,250/- per sq. ft.


125. Mr. Kiran Kamal Bhasin (S. No. 1804/92 and RFA (OS)No. 99/97)


(165)HE booked 500 sq. ft. , made payment to the extent of 80. 79 per cent of sale consideration. The committee proportionately reduced the area to 404 sq. ft. with allotment of physical area as 283 sq. ft. The learned Single Judge allotted him the entire area of 500 sq. ft. without considering the lessor payment and provision for common area. we hold that he shall be entitled to 283 sq. ft. physical area a (r)recommended by the Committee.


127. Mrs. Indu Grover (S. No. 1576/92 and RFA (OS)62/97.


(166)SHE booked 750 sq. ft. , made payment to the extent of 96. 07 per cent of sale consideration. The committee proportionately reduced the area to 721 sq. ft. with allotment of physical area as 505 sq. ft. The learned Single Judge rejected her claim. She has filed appeal challenging the Judgment of the learned Single Judge. In fact during arguments, the skippers accepted the agreement was in fact entered into between the parties. The payment as noted by the committee was also accepted, and therefore, this appeal stands allowed. She will be entitled to 505 sq. ft. of physical area as recommended by the Committee.


128. Mr. Rahul Gupta (S. No. 1873/96)


(167)HE booked 400 sq. ft. , made payment to the extent of 165. 41 per cent of sale consideration. The committee allotted him the entire area of 400 sq. ft. with allotment of physical area as 280 sq. ft. The learned Single Judge has allotted him the entire area of 400 sq. ft. without making the provision for common area. We hold that he will be entitled to allotment of 280 sq. ft. physical area as recommended by the Committee.


129. Mr. Vinod Kapoor (S. No. 693/91 and RFA (OS)NO. 89/97)


(168)HE booked 550 sq. ft. , made payment to the extent of 88. 56 per cent of sale consideration. The committee proportionately reduced the area to 487 sq. ft. with allotment of physical area as 341 sq. ft. The learned Single Judge has allotted him the entire area of 550 sq. ft. without considering the lessor payment and provision for common. area. After making the provision for common area, we accordingly hold that he will be entitled to 341 sq. ft. physical area as recommended by the Committee. He filed appeal challenging the direction of payment of Rs. 3,250. 00 per sq. ft.


130. Col. H. S. Lamba and Anr. (S. No. 2215/96 and RFA (OS)No. 158/97 and 86/97)


(169)THEY booked 140 sq. ft. , made payment to the extent of 110. 79 per cent of sale consideration. The committee allotted them the entire area of 140 sq. ft. with allotment of physical area as 98 sq. ft. The learned Single Judge has allotted them the entire area of 140 sq. ft without making the provision for common area. Accordingly, we hold that they will be entitled to 90 sq. ft. physical area as recommended by the Committee. They Filed appeals challenging the direction of payment of Rs. 3,250. 00 per sq. ft.


131. Sona Enterprises (S. No,3070/96. and. RFA (OS)No 118/97):


(170)THIS company booked 140 sq. ft. , made payment to the extent of 94. 08 per cent of sale consideration. The Committee proportionately reduced the area to 132 sq. ft, with allotment of physical area as 92 sq. ft. The learned Single Judge has allotted this company the entire area of 140 sq. ft, without considering the lessor payment provision for common area. Accordingly, we hold that this company will bo entitled to 92 sq. ft. physical area as recommended by the Committee. This company filed appeal challenging the direction of payment of Rs. 3,250. 00 per sq. ft.


132. G. S. T Corporation. thr' Mr. R. N. Grover (S. No. 1573/92. and. RFA. (OS)No 63/97)


(171)THIS company booked 500 sq. ft. , made payment to the extent of 108. 21 per cent of sale consideration. The Committee allotted it the entire area of 500 sq. ft. with allotment of physical area as 350 sq. ft. The learned Single Judge rejected the claim of this company on the ground that no space is available. Since the space would now be available after taking into consideration the common area, the appeal is allowed. This company would be entitled to 350 sq. ft. physical area as recommended by the committee.


133. Mr,rajat Ghai (S. No 2993/92)


(172)HE booked 500 sq. ft. , made payment to the extent of 114. 49 per cent of sale consideration. The committee allotted tho entire area of 500 sq. ft. with allotment of physical area as 350 sq. ft. The learned Single Judge rejected his claim on the ground that no space was available. Since the space would now be available after taking into consideration /the common area, he would be entitled to 350 sq. ft. physical area os recommended by the committee.


135. Rajiv Gupta. Discussion in 'special Cases'. 136. Mrs Usha Chopra (S. No. 2605/96)


(173)SHE booked 225 sq. ft. , made payment to the extent of 96. 42 per cent of sale consideration. The committee proportionately reduced the area to 217 sq. ft. with allotment of physical area as 152 sq. ft. The learned Single Judge rejected her claim on the ground that no space was available. Since the space would now be available after taking into consideration the common area, he would be entitled to 152 sq. ft. physical area as recommended by the committee.


8th/9th FLOORS: 137. Jain Shudh Vanaspati: as discussed in 'special Cases'. 138. Punjab and Sind Bank: as discussed in 'special Cases'. 139. Mrs Ishwar Kaur (S. No 1142/92. and RFA (QS)No 125/97


(174)SHE booked 500 sq. ft. , made payment to the extent of 114. 57 per cent of sale consideration. The committee allotted her the entire area of 500 sq. ft. with allotment of physical area as 350 sq. ft. The learned Single Judge dismissed the suit holding that the transaction in question was not genuine. The learned Single Judge has observed that. she booked 500 sq. ft. at the rate of Rs. 500. 00. Therefore, the total consideration was Rs. 2,50,000. 00. She paid 1 lac at the time of booking and the allotment letter dated 28/02/1981 was issued. For Rs. 1 lac receipt dated 28/02/1981 was given which mentioned total cost of Rs. 2 ,50,000. 00 of the flat. However, on 1/08/1990, the plaintiff paid another sum of Rs. 2,50,000. 00 thereby making a payment of Rs. 3,50,000. 00. The learned Single Judge also observed that it was not explained as to why rs. 3,50,000/- was paid when the consideration was rs. 2,50,000/- and it was not, explained why rs. 2,50 ,000/- instead of Rs. 1,50,000. 00 was paid on 1/08/1990 i. e. after 9 and half years after the date of booking. She has filed appeal in which it is also stated that the possession was given to her on 13/05/1991. This possession is clearly given after the injunction order passed by the court. It appears that. after the injunction order, the Skippers induced the appellant to pay more payment and therefore took rs. 1,50,000/- and gave possession. Of course the appellant was rightly dispossessed and dispossession will not give her any right. Fact remains that she has made payment of more than 100 per cent and the Skippers accepted the agreement also. It was, therefore, not correct on the part of the learned Single Judge not to believe the transaction as genuine. This appeal is accordingly allowed. However, the appellant shall be entitled to 350 sq. ft. physical area as recommended by the Committee.


140. Mr. Sameer Arora (S. No. 2457/92 and RFA (OS)No. 153/97)


(175)HE booked 502 sq. ft. , made payment to the extent of 90. 73 per cent of sale consideration. The committee proportionately reduced the area to 455 sq. ft. with allotment of physical area as 319 sq. ft. The learned Single Judge allotted him the entire area without considering the lessor payment and provision for common area. After making the provision for common area, we hold that he will be entitled to 319 sq. ft. physical area as recommended by the commmittee. He filed appeal challenging the direction of payment of Rs 3,250/-per sq. ft.


141. Mr Lal Chand Chimnan (S. No. 2812/96 and rea (OS)No. 43/99)

(176)HE booked 514 sq. ft-, made payment to the extent of 97. 85 per cent of sale consideration. The committee proportionately reduced the area to 503 sq. ft. with allotment of physical area as 352 sq. ft. The learned Single Judge allotted him the entire area without considering the lessor payment and provision for common area. After making the provision for common area, we hold that he will be entitled to 352 sq. ft. physical area as recommended by the committee.


142. Ms. . . Sangeeta Gupta


(177)THIS case has already been discussed while dealing the case of Rajiv Gupta'group.


143. M. S Urvika Gupta


(178)THIS case has already been discussed while dealing with the case of 'rajiv Gupta' group.


144. Mrs Ritika Gambhir and Ors. (S. No. . 2084/96 and RFA. (OS)No. 113/97).


(179)SHE booked 140 sq. ft. , made payment to the extent of 103. 88 per cent of sale consideration. The committee allotted the entire area of 140 sq. ft. with allotment of physical area as 98 sq. ft. The learned Single Judge allotted the entire area of 140 sq. ft. without making provision for common area. Aftor making the provision for common area, we hold that he will be entitled to 98 sq. ft-physical area as recommended by the Committee. They filed appeal challenging the direction of payment of Rs. 3,250/-per sq. ft.


146. Mrs Kalpana Singhal (S. No. 2204/96 and RFA (OS)150/97)


(180)SHE booked 225 sq. ft. , made payment to the extent of 93. 64 per cent of sale consideration. The committee proportionately reduced the area to 211 sq. ft. with allotment of physical area as 148 sq. ft the learned Single Judge dismissed the suit on the ground that nobody came forward to substantiate the claim. However, she has filed appeal. The claim of the appellant has been accepted by the Skippers. She had proved her claim before the Committee. Therefore, we accept the appeal. She would be entitled to 140 sq. ft. physical area as recommended by the Committee.


147. Mrs Indu Anand (S. No. 2465/96 and no 159/97):


(181)SHE booked 525 sq. ft. , made payment to the extent of 69. 55 per cent of sale consideration. The committee proportionately reduced the area to 365 sq. ft. with allotment of physical area as 256 sq. ft. The learned Single Judge allotted the entire area of 526 sq. ft. without considering the lessor payment and provision for common area. After making the provision for common area, we hold that she will be entitled to 246 sq. ft. physical area as recommended by the Committee.


140. Mr. Rajiv Gupta :. Discussion in 'special Cases': 10th FLOOR 149. Jain Exports P. Ltd discussion in 'special Cases' 150. Punjab and. Sind. Bank discussion in 'special Cases'. 151. M/s. Sona Enterprises S. No. 3069/96 and RFA. (OS)No. 111/97):


(182)THIS company booked 140 sq. ft. , made payment to the extent of 94. 08 per cent of sale consideration. The Committee proportionately reduced the area to 132 sq. ft. with allotment of physical area as 92 sq. ft. . The learned Single Judge has allotted this company the full area of 140 sq. ft. without considering the lessor payment and provision for common area. After making the provision for common area, we hold that this company would be entitled to 92 sq. ft. physical area as recommended by the Committee. It has filed appeal challenging the direction of payment of Rs. 3,250. 00 per sq. ft.


152. Mr Sanjeev June (RFA (OS)No. 22/99:


(183)HE booked 140 sq. ft. , made payment to the extent of 104. 82 per cent of sale consideration. The committee allotted him the entire area of 140 sq. ft. with allotment of physical area as 98 sq. ft. There is no discussion about this cose by the learned Single Judge as suit was not filed. He filed appeal. For the reasons stated, this appeal is allowed. He would be entitled to physical area of 98 sq. ft. as recommended by the Committee.


153. Mrs Opindra Chadha (S. No. 1978/92, and RFA (OS)No. 55/97:


(184)SHE booked 500 sq. ft. , made payment to the extent of 118. 22 per cent of sale consideration. The committee allotted the entire area of 500 sq. ft. with allotment of physical area as 350 sq. ft. The learned Single Judge allotted the full area without making the provision for 30 percent common area. After making the provision for common area, her entitled would stand reduced to 350 sq. ft. physical area as recommended by the Committee. She filed appeal challenging the direction of payment of Rs. 3,250. 00 per sq. ft,


154 and 155 M/s M. L. Talwar and Co. and 8harat medicos (S. No. 1,741/92, 1803/92. and. RFA (OS)Nos. 94 and 96/ 98)


(185)THEY booked 500 sq. ft. , but paid only 17. 75 per cent which was the earnest money of Rs. 50,000. 00. On this basis, the Committee reduced the allotment to 89 sq. ft. with allotment of physical area as 62 sq. ft. The learned Single Judge decree their suit. As per receipt dated 22nd October, 1985 it was specifically agreed that balance payment would be made only at the time of taking over possession of the flat and on the completion of the building, when this was the specific stipulation- in the agreement, the reasoning given by the learned Single Judge appears to be correct. They would therefore be entitled to 500 sq. ft. and would pay the balance consideration plus further amount as demanded for all flat buyers. However, after making the provision of 30 per cent common area, the physical area allotted to them is 350 sq. ft.


156. Mr S. M. Dewan. (S. No. 2280/93 and CM 50/2001):


(186)HE booked 470 sq. ft. , made payment to the extent of 88. 85 per cent of sale consideration. The committee proportionately reduced the area to 410 sq. ft. with allotment of physical area as 293 sq. ft. The learned Single Judge allotted the full area without considering the lessor payment and the provision for 30 percent common area. After making the provision for common area, his entitled would stand reduced to 293 sq. ft. physical area as recommended by the Committee. He filed CM to the Public Notice and did not file appeal challenging the direction of payment of rs. 3,250/- per sq. ft.


157. Mr Anupam Awasthy (S. No 2417/96)


(187)HE booked 520 sq. ft. , made payment to the extent of 104. 49 per cent of sale consideration. The committee allotted the entire area of 502 sq. ft. with allotment of physical area as 351 sq. ft. The learned Single Judge allotted the full area without making the provision For 30 percent common area. After making the provision for common area, his entitled would stand reduced to 351. sq. ft. physical area as recommended by the Committee.


150 : M/s M. L. Talwar and Co (S. No. 1,737/92 and RFA (OS)No. 98/98)


(188)IT booked 140 sq. ft. , but paid only 31. 69 per cent which was the earnest money of Rs. 25,000. 00. On this basis, the Committee reduced the allotment to 44 sq. ft. with allotment of physical area as 31 sq. ft. The learned Single Judge decreed the suit. As per receipt dated 28th January, 1986 it was specifically agreed that balance payment would be made only at the time of taking over possession of the flat and on the completion of the building, when this was the specific stipulation in the agreement, the reasoning given by the learned Single Judge appears to be correct. It would therefore be entitled to 140 sq. ft. and would pay the balance consideration plus further amount as demanded for all flat buyers. However, after making the provision of 30 per cent common area, the physical area allotted to them is 98 sq. ft.


159. Mrs Vandana Aggarwal (S. No 1335/92 and rfa (OS)No 6. 5/97)


(189)SHE booked 140 sq. ft. , mode payment to the extent of 102. 17 per cent of-sale consideration. The committee allotted the entire area of 140 sq. ft. with allotment of physical area as 98 sq. ft. The learned Single Judge allotted the full area without making the provision for 30 percent common area. After making the provision for common area, her entitled would stand reduced to 98 sq. ft. physical area as recommended by the Committee.


160. M/sspring. Valley Finance. and Trade. . Ltd (S. No. 1788/93. and. CM,,no. 56/2001):


(190)THIS company booked 1300 sq. ft. , made payment to the extent of 76. 64 per cent of sale consideration. The Committee proportionately reduced the area to 996 sq. ft. with allotment of physical area as 697 sq. ft. The learned Single Judge allotted 900 sq. ft. area with a view to making equitable distribution. However, since the area would now be available, the allotment of entire 996 sq. ft. recommended by the committee is approved. However, the physical area would come to 697 sq. ft. The allotment stands modified to this extent.


161. M/s. Golden. Polyster Pvt Ltd. (S. No. 1790/93. and. CM No. 57/2001):


(191)THIS company booked 760 sq. ft. , made payment the Committee proportionately reduced the area to 502 sq. ft. with allotment of physical area as 407 sq. ft. The learned Single Judge allotted 760 sq. ft. without considering the lessor payment and provision for common area. AFter making provision for common area, we hold that tills company will be entitled to 407 sq. ft. as recommended by the Committee.


162. M/s Golden Cylinders Pvt Ltd (S. No. 1789/ 93and ,cm. . No 55/2001):


(192)THIS company booked 750 sq. ft. , made payment to the extent of 76. 64 per cent of sale consideration. The Committee proportionately reduced the area to 575 sq. fc. with allotment of physical area as 403 sq. ft. The learned Single Judge allotted 750 sq. ft. without considering the lessor payment and provision for common area. After making provision for common area, we hold that this company will be entitled to 403 sq. ft. as recommended by the Committee.


163. Mr Nirmal Puri (S. No. 1308/92 and RFA (OS)No. 135/97):


(193)HE booked 225 sq. ft. , made payment to the extent of 112. 59 per cent of sale consideration. The committee allotted the area of 225 sq. ft. with allotment of physical area as 158 sq. ft. The learned Single Judge allotted the full area of 225 sq. ft. without making provision for common area. After making provision for common area, we hold that he will be entitled to 158 sq. ft. as recommended by the Committee. He filed appeal challenging the direction of payment of Rs. 3,250. 00 per sq. ft.


164. Mr Subhash Chopra Ms. Rita. Kharbanda and Mr Sameer Kharbanda (S. No. 2289/96 and RFA (OS)No 84/97):


(194)THEY booked 464 sq. ft. , made payment to the extent of 102. 91 per cent of sale consideration. The committee allotted 464 sq. ft. with allotment of physical area as 325 sq. ft. The learned Single Judge allotted the entire area of 464 sq. ft. without making the provision for common area. After making provision for common area, we hold that they will be entitled to 325 sq. ft. as recommended by the Committee. They filed appeal challenging the direction of payment of Rs. 3,250. 00 per sq. ft.


165. Mr Jeet Babal Singh (S. No. 4289/92 and bfa (OS)No 85/97)


(195)HE booked 300 sq. ft. , made payment to the extent of 105. 79 per cent of sale consideration. The committee allotted 300 sq. ft. with allotment of physical area as 210 sq. ft. The learned Single Judge allotted the entire area of 300 sq. ft. without making the provision for common area. After making provision for common area, we hold that he will be entitled to 21. 0 sq. ft. as recommended by the Committee.-He filed appeal challenging the direction of payment of Rs. 3,250. 00 per sq. ft.


166. Mrs. Meera Khanna (S No 908/91 and RFA (OS)100/97


(196)SHE booked 1100 sq. ft. made payment to the extent of 79. 45 per cent of sale consideration. The committee proportionately reduced the area to 874 sq. ft. with allotment of physical area as 612 sq. ft. The learned Single Judge allotted the area of 730 sq. ft. keeping in view the area available. After making the provision for 30 per cent common area since the physical area would be 612 sq. ft. as per the committee, the area of 612 sq. ft. is allotted to her. She filed appeal challenging the direction of payment of Rs. 3,250. 00 per sq. ft.


167. M/s. Sanjay Talwar and Associates (S. No,1738/92 and RFA (OS)Nos 95and 99/98):


(197)IT booked 500 sq. ft. , made payment to the extent of 6. 24 per cent of sale consideration on the basis of which the Committee allotted 31 sq. ft. with 22 sq. ft. physical area. The learned Single Judge had dismissed the suit on the ground that no space is available. In any case since the payment is only 6. 24 per cent according to us, this firm shall not be entitled to any space, and therefore, we affirm the judgment of the learned single Judge. The appeal stands dismissed.


168. M /s M. L. Talwar and Associates. (S. No. 1736/92 and REA (OS)No 98/98):


(198)IT booked 500 sq. ft. , made payment to the extent of 6. 24 per cent of sale consideration on the basis of which the Committee allotted 31 sq. ft. with 22 sq. ft physical area. The learned Single Judge had dismissed the suit on the ground that no space is available. In any case since the payment is only 6. 24 per cent according to us, this firm shall not be entitled to any space, and therefore, we affirm the judgment of the learned single Judge. The appeal stands dismissed.


170. Mr. Dhruv Gupta


(199)THIS case is already decided while discussing the cases of Rajiv Gupta Group in 'special Cases' as per which he would be entitled to area as per the recommendation of the Committee.


171. M/s Industrial Foams (S. No. 1,934/96 and RFA (OS)No. 109/97)


(200)THIS firm booked 500 sq. ft. , made payment to the extent of 78. 12 per cent of sale consideration. The Committee proportionately reduced the area to 391 sq. ft. with allotment of physical area as 274 sq. ft. The learned Single Judge dismissed the suit on the ground that no space was available. Since the area would now be available, appeal is accepted. This firm would be entitled to 274 sq. ft. as per the recommendation of the Committee.


172. Ms. Surinder Kaur (S. No. 2410/96 and RFA (OS.)No. 75/97)


(201)SHE booked 300 sq. ft. , made payment to the extent of 25. 23 per cent of sale consideration. The committee proportionately reduced the area to 76 sq. ft. with allotment of physical area as 53 sq. ft. The learned Single Judge dismissed the suit on the ground that no space was available. Since the payment made is only 25. 23 per cent, we are not inclined to interfere with the reasoning of the learned single Judge and affirm the Judgment of the learned single Judge holding that she would not be entitled to any specific performance of space. The appeal stands disposed of.


173. Mr. Hardip Singh (S. No. 120/91 and rfa (OS0)No. 33/98)


(202)HE booked 400 sq. ft. made payment to the extent of 102. 42 per cent of sale consideration. The committee allotted the area of 400 sq. ft. with allotment of physical area as 280 sq. ft. The learned Single Judge rejected his claim on the ground that no space was available. Since the space would now be available, he is held entitled to 280 sq. ft. physical area as per the recommendation of the Committee subject to this flat buyer approaching the court and filing the requisite court fee and complying with the direction regarding payment of further amount which is demanded from all flat buyers.


1 Mrs. Rajinder Kaur (RFA (OS)No. 104/97):


(203)MRS. RAJINDER Kaur filed suit No. 2253/96 stating that she had booked space of 500 sq. ft. in upper Ground Floor for which letter of allotment dated 17/01/1984 was given. Total consideration agreed was Rs. 1,50,000. 00. Against this a sum of Rs. 2 lacs was paid by her and thus payment was more than 100 per cent. The name of Mrs. Rajinder Kaur appears in the list of allottees prepared by the Committee which is filed as Annexure E. I to the final Report. However, she did not appear or file claim before the Committee, and therefore, her case has not been considered by the committee. She filed the suit. In para 79 of the impugned Judgment, the learned Single Judge has discussed her case and refused to grant her the space only on the ground that she approached the court only on 16/09/1996. Since we have considered all the cases on merits who filed the suits, appeal or responded to the public notice issued in this appeal, she shall be entitled to the area booked. The appeal is accepted. As she made the payment of more than 100 per cent, the physical area allotted her is 350 sq. ft.


2 Raj Overseas Travels Pvt Ltd (RFA (OS)50/97)


(204)THIS company filed suit No. 2209/93. Its case is that Ms. Ritu Arora booked 500 sq. ft. and was allotted flat No. 111 by letter dated 16/11/1981. She assigned her rights in favour of this company which were duly intimated to the Skippers and assignment was accepted. She had made certain payments and after assignment this company also made payments. By allotment letter -dated 6/11/1989 the skippers allotted this company flat No. 1o1-A on the first Floor. The Committee has placed its case in the waiting list i. e. Annexure-G filed to the Report. It appears that the Committee has taken the date of 6/11/1989. For same reason, the learned single judge dismissed the suit for allotment and decreed the suit for refund of Rs. 5,78,000. 00 which payment is not disputed. In the suit filed by this company it was stated that Flat No. 111 was allotted to Ms. Gita Anand and ors. which should not have been done, and therefore, prayer was made for declaration that the company was entitled to flat No. Ill and in the alternative flat no. lol-A should be allotted. From the documents on record, we are convinced that the Committee fell into error in putting the case of this company in waiting list. when the original booking is dated 16/11/1981 in favour of Ms. Ritu Arora and there is a valid assignment in favour of this company, it is the original date of booking which should have been considered for the purpose of allotment, more so when the payment made by Ms. Ritu Arora has been taken into consideration. For same reasons, the judgment of the learned Single Judge is also erroneous, we set aside the same and hold that M/s Raj Overseas Travels shall be entitled to space booked. Since flat No. Ill stands allotted to Ms. Gita Anand, this company shall be allotted flat at 209 or any other available in the building. we leave it to the committee to decide the same. The physical area allotted would be 350 sq. ft.


3. Mrs. Savitri Devi Kohli (RFA (OS No. 53/98):


(205)SHE filed suit No. 62/95 stating that she had entered into agreement on 20/01/1984 for flat no. 101. She did not appear before the Committee and therefore her case is not considered by the Committee. Her suit has been dismissed as she did not examine herself to establish her claim. She has preferred appeal. She has produced on record agreement dated 20th January, 1984 which pertains to flat No. 101. The rate agreed was Rs. 574 per sq. ft. and the area booked was 750 sq. ft. She has made payment to the extent of 70 per cent of the sale consideration. These facts were - admitted by the Skippers during arguments. Since we Have considered all the cases on merits who filed the suits, appeal or responded to the public notice issued in this appeal, she shall be entitled to reduced area of 525 sq. ffc. The appeal is allowed. As she made the payment of less than 100 per cent, the physical area allotted to her is 350 sq. ft.


(206)AT this stage, we shall deal with those cases. where the Committee examined the claims but the concerned flat buyer did not file any suit or appeal or cm in response to public notice issued. Following persons fall in this category.


S. No.


S. No. as in Ann. I


Party name


(Report of the Committee)



1.


33


Ms. Asha Gulati


2.


40


Ms. Indu Tandon


3.


78


Joginder Kr. Gupta



4.


89


Ms. Monica Gulati



5.


109


Mr. B. K. Singh



6.


126


Mr. V. Kaira



7.


134


Mrs. Pushpa Devi



8.


145


Mr. N. K. Arora


9.


169


Mr. A. P. Sehgal


(207)IN the absence of any suit filed by them, the learned Single Judge has not allotted them any space and rejected their claims. Since they have not responded by filing any appeal or even CM pursuant to public notice issued by this court, it could be presumed that they are not interested in getting any space. Their cases are accordingly rejected. WAITLISTEDS. Party name S. No. Appeal/cm


No. No.


1. Bharat Securities (P)Ltd. 2890/96 34/98


2. M/s Nagarjuna Finance Ltd. 3686/92 6/99


3. ? DO? 3687/92 7/99


4. S. Surjeet Singh 126/91 28/99


5. M/s Donhill Tobaco Co. (P)Ltd. 2486/92 ?


6. M/s Laxmi Distributors Ltd. 2490/92 ?


7. Mr. Baj. dev Singh 2326/96 142/97


8. Mrs. Prem Gulati 2181/96


9. Mr. AJay Luthra 1898/92 CM No. 31/01


10. Mrs. Vidhu Seth 2308/91 114/97


11. Master Udit Choudhari 1955/96 40/98


12. Mr. Har Govind V. Navani 1963/96 41/98


13. Col. Bhagvan Chandra Shukia 2035/96 ?


14. Mr. Dinesh Aggarwal 2330/96 ?


15. Mrs. Manmohan Kaur Kohli 2356/96 123/97


16. M/s Marine Container Services. 2952/96 ?


17. Mr. Har Swarooop 2131/86 97/97


18. M/s JTB Financial Services (P)Ltd. 2203/93 19/98


19. Mr. Inder Pardasani 1191/91 148/97


20. Ms. Anubha Pahwa 1819/92


21. Mr. R. K. Arora 3912/92


22. Mr. K. D. Mehra 2092/96


23. M/s Mahesh Metal Works 2133/96 4/98


24. Mr. S. C. K. Bajaj 2194/96 CM 28/2001


25. Mr. Manjit Singh Rikhy 1087/92 ?


26. Mrs. Rupinder Kurnari 1918/91


27. Mrs. Bimla Rani 2569/96 111/98


28. Mr. K,j. Arora 1831/91 ?


29. Mr. Jagdish Prasad 1789/92 -


30. M/s Solan Beverages Pvt. Ltd. 3840/92 69/98


31. Mr. Satya Narain Gupta 3413/92 77/97


32. Mrs. Surjit Kaur 3740/92 63/98


33. M/s Surjit Beverages Pvfc. Ltd. 3741/92 68/98


34. Mrs. Rupinder Kumari 1354/96 -


35. Mrs, Kamala Manchanda 2016/96


36. Mr. Deepak Singhal 2134/96 116/97


37. Ms. Priya Mehta 2191/94 -


38. Mr. Giriraj, Mrs. Rajni Gupta & 2313/96 CM 16/2001
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r /> M/s Chhabra Steel Tubes 39. M/s Rama Leasing Co. Ltd. 1623/92 - (208)AFORESAID suits, appeals and CMs. are filed by those flat buyers who booked the space after the cut-off date i. e. 31/12/1986. In view thereof, the Committee placed their cases in the waiting list. The learned Single Judge has also dismissed their claims for allotment of space on the same ground. These cases are therefore treated as waitlisted cases. Since more space would be available now because of the availability of more space in view of changed bye-laws and also because of the fact that many flat buyers did not respond at all by filing suit or appeal or responding pursuant to public notice, this available space would be allotted to these waitlisted flat buyers by applying same principle of first-CUM-FIRST SERVE' with reference to the amount paid for booking the flats. The Committee appointed by orders in this Judgment would be authorised to undertake this exorcise. CASES OF UPPER AND LOWER BASEMENT the Committee has made the allotment to those persons who had booked the spaces in Upper and Lower basements. These spaces were mainly booked as car parking spaces by different allottees for which proper agreements were entered into and consideration was paid. The detailed exercises done in this respect giving allotment to various persons finds place in annexure-I. However, the learned Single Judge hoe rejected all these claims on the ground that there cannot be booking of any space in the Basements which cannot be' used for commercial purposes. Appeals are filed challenging this decision of the learned Single judge by the allottees of spaces in these Basements. we are of the view that the approach of the Committee was more appropriate. The user will not determine outcome of these cases. The Committee rightly pointed out that although the space was allotted as per the agreements, this space shall not be used for commercial/office purposes. Therefore, with the direction that the allottees of these spaces shall not use these spaces contrary to bye-laws, recommendations of the Committee are accepted. Judgment of the learned single Judge on this account is set aside and allotments done by the Committee as per the Annexure-I are accepted. (209)AT this stage, it would be appropriate to deal with RFA (OS)7 of 1998 filed by Chaturanan Industries ltd. . Vide agreement to sell dated 27/12/1989 the Skippers agreed to sell super area of 8625 sq. ft. with covered area of 7,500 sq. ft. to this party. This area was earlier comprised of an office which the skippers were having in Upper Basement. Once the skippers thought that the said office was no more required by them, they sold this space to Chaturanan industries Ltd. . Although this agreement is after 31/12/1986, this case stands apart on its peculiar facts inasmuch as tills area was not at all sold by the skippers earlier to any person. In fact it became available only in the year 1989 after the Skippers decided to abandon their office. Therefore, the case of Chaturanan Industries is on an altogether different footing. This party had an agreement with the Skippers for specific space for which site plan was annexed. This space was where Skippers had its office. The agreement was inclusive of all fixtures and fittings including air conditioners. Earnest money was paid as per the agreement. Balance amount was payable on delivery of possession. Still the party paid further amount on request of builder though delivery of possession was being postponed by the builder. Therefore, there is no question of default in payment. (210)THE Committee has kept the case of this flat buyer in the wait-list presumably for the reason that the agreement is after 31/12/1986. However, this case cannot be treated at par with the cases of other fiat buyers in view of the aforesaid reason, namely, this area earlier being in possession of the skippers from where they were running the office, was not available for sale at all before the agreement was entered into between Chaturanan Industries Ltd. and the Skippers. Therefore, the concept of cut-off date would not be applied in this case inasmuch as this area is sold to the Chaturanan Industries Ltd. for the first time in 1989 and it is not a case where there are more than one claims over this area. Another significant fact is that there is no other agreement with any party with respect to this space. Therefore, in our view, this party should get what it agreed to purchase. Therefore, this area stands allotted to M/s Chafcuranan Industries Ltd. . (211)HAVING dealt with these individual cases, we have accomplished the task of deciding as to how much area is available in the building for allotment which flat buyers are entitled for allotment and how much area needs to be allotted to each flat buyer. The committee had gone a step ahead by even recommending the place in the building where the flat buyers are to be given the space. Some exercise was done by the learned Single Judge also. In view of our aforesaid decision, since there going to be changes in what was suggested by the committee or the learned Single Judge, where exactly these persons should be accommodated has to be decided afresh. We are not doing this exercise ourselves as we feel that it would be better to leave this matter to a committee which will accomplish this Job with the assistance of experts, we are adopting this approach also for the reason that constituting a Committee is inevitable to complete some of the unfinished agenda particularly relating to the completion of building which aspect we would advert to shortly. In most of the cases, however, the specific flat and floor earmarked for them would remain the same. (212)INCIDENTAL ISSUES: certain incidental issues which arise in this case generally and some of such issues are subject matter of specific appeals remain to be decided, we proceed to deal with these issues now: vi Claim of Land and Development (Landdo). By their letter dated 26. 5. 79, the Builder acting in his capacity as attorney for the lessees, applied to the Land and Development Officer of the government of India (the Lessor)for permission to construct a commercial building on the demised premises at 22, Barakhamba Road, New Delhi. Terms were offered for this purpose by the Land and Development Officer by his letter dated 24. 7. 80 and a sum of Rs. 60,57,817 was demanded by the Landdo as additional premium. (213)THEREAFTER, a dispute arose between the Landdo and the Builder. On 27. 3. 87, the Landdo wrote to the builder suggesting that the sum of Rs. 60. 57. 817 be paid in three instalments. The first instalment was to be paid within 90 days of the receipt of the letter; the second instalment within one year thereafter and the third instalment within two years thereafter. The Landdo also demanded interest at the rate of 14% which according to him worked out to a total sum of rs. 8,48,094. This interest was worked out on the assumption that the entire payment would be made by 27/06/1989. when the builder did not make the payment, the union of India filed the said Suit No. 2341/87. (214)IT may be mentioned that at the time of filing of the suit the demand of Landdo was Rs. 60,57,817. 00. In this suit an interim order dated 16/05/1988 was passed by the learned Single Judge directing the Skippers to pay the Union of India/landdo a sum of Rs. 68,95,911 plus future interest at the rate of 14% thereon by paying quarterly instalments of Rs. 10 lakhs. On making this payment the Skippers were entitled to carry out the construction of the building. The payment was, however, to be made under protest. Still payment was not made and there is some dispute regarding this. As we shall demonstrate immediately hereafter, in any case landdo treated the same as default on the part of the skippers and reentered the building. Now Landdo is demanding the conversion charges calculated again at the present rate. The amount claimed on this account before the Committee was Rs. 14,80,86,305. 00. The committee after going into this claim suggested that the same be settled at Rs. 58,95,911. 00 plus simple interest thereon at the rate of 14% p. a. as envisaged in order dated 16-5-1988 passed in this suit by the learned Single Judge. Thereafter in the impugned judgment while deciding the aforesaid suit of the Union of India, learned Single Judge has also maintained that the Union of India is entitled to a sum of rs. 58,95,911. 78p. However, interest is awarded by the learned Single Judge at the rate of 18?. p. a. from 16. 5. 1988 up to the date of payment. (215)UNION of India/landdo has preferred Appeal no. RFA (OS)No. 47/99 challenging the aforesaid Judgment and decree passed by learned Single Judge in this suit and maintaining that it is entitled to rs. 14,80,,86,305/ -. Before coming to the merit of this appeal. Some more facts about the manner in which the suit proceeded and development took place after the filing of this suit may be stated. (216)AS already mentioned above in Suit No. 2341/87 filed by the Union of India/landdo, order dated 16/05/1988 was passed. It would be necessary to reproduce this order as this order discloses the basis of working out the amount of Rs. 60,57,870. 00 directed to be paid by the Skippers to Landdo with interest. It reads as under: "the position as it stands today, is that the prospective flat owners have paid over Rs. 6 crores in respect of various flats in the said building. The demand of the plaintiff against the defendants is only Rs. 60,57,870 plus interest at the rate of 141. If the injunction as prayed for by the plaintiff is granted, the effect would be that the defendants would be restrained from finishing the construction of the said building and the further effect would be that the plaintiff would not be able to realise their Rs. 60 lakhs and the prospective flat purchasers who have spent over Rs. 6 crores would not get the possession of their flats and will not be able to enjoy the fruits of their investment. To may mind it will be wholly inequitable to bring the entire project to a standstill and, therefore, a solution has to be found so that no one is in any way prejudiced. The claim of the plaintiff is that without paying the conversion charges the defendants cannot construct. It is not the case of the plaintiff that the construction is otherwise prohibited in the area. The building plans of the defendants have been sanctioned by the new Delhi Municipal Committee. According to the plaintiff the plans should also have been approved by the Land and development Officer. The plaintiffs, as is evident from the correspondence on record, are willing to accord approval, but are wanting their pound of flesh, namely, Rs. 60,57,870. 00 being the conversion charges plus 14% interest thereon. Under the circumstances and for the benefit of all the parties concerned, including those who are not before the court, namely, the buyers of the flats who have invested more than Rs. 6 crores in the building, I think it will be proper to permit the construction of the building to be completed, but at the same time, safeguard the interest of the plaintiff. I, therefore, direct that the defendants would be entitled to carry out the construction of the building by paying under protest, the demand of the plaintiffs, namely, Rs. 60,57. 870 plus interest thereon as claimed in the letter dated 27/03/1987 of the plaintiff. the total amount of which comes rs. 68,95,911 plus future interest at the rate of 14 thereon by paying quarterly instalments of Rs. 10 lakhs, till the claim of the plaintiff is paid. " (217)AFTER the above mentioned order was passed, cheques of Rs. 10 lakhs were issued by the Builder and encashed by the Landdo. Subsequently 33 cheques were sent by the Builder which were dishonoured. we are inclined to maintain the order of learned Single Judge for payment of Rs. 58,95,911/- with 18 per cent interest thereon, we do so after having regard to the following circumstances. 1. As per the order dated 16-5-1988 passed by the learned Single Judge in this suit the demand of the union of India against the Skippers was Rs. 60 ,57 ,870/-along with interest. On the date of the passing of the order this amount came to Rs. 68,95,911. 00. Direction to pay this amount was given along with future interest as per letter dated 27. 3. 1987 of the Landdo itself. There is no dispute to this extent. 2. Landdo had in fact allowed the conversion subject to payment of certain charges at that time. The claim of the Landdo was, therefore, only for money for which suit was also filed. Money demanded while allowing conversion was Rs. 60,57,870. 00. For non-payment of this amount, the Landdo can claim decree to recover this amount for which even the suit was filed. It, therefore, could not calculate afresh the conversion charges as on later date. 3. There is some dispute as to whether the cheques given by the Skippers were dishonoured due to fault of the Skippers or that of the Landdo. Learned counsel for the Skippers tried to explain that cheques given were not encashed by the Landdo on due dates which were kept by the Landdo with it without presenting to the bankers. Therefore, fault lies with the Landdo. Be that as it may, the fact remains that even if there was some fault of the builder and the conduct of the builder was not proper, Landdo authorities acquiesced into what the skipper was doing without making payment to the Landdo i. e. continuing with the construction of the building, selling the space/fiats and recovering money from the flat buyers. Timely action of the Landdo would have prevented such a situation. 4. The Skippers are not interested in settling the liability of the Landdo now. As of today, burden falls on the flat buyers to discharge this liability for which they have no escape. It is the flat buyers who are suffering due to delay in obtaining the completion certificate as they are not being able to enjoy the fruits of their investment. They cannot be allowed to suffer further because of the alleged fault of the Skippers as they are themselves victims of mis-deeds of the Skippers. In the peculiar facts of this case, it would be proper to maintain the conversion charges demanded initially and not the conversion charges recalculated on the basis of 1992 rates. 5. The interest on the amount payable is awarded at the rate of 18 per cent although by order dated 16/05/1988 the interest was awarded at the rate of 14 per cent. The interest has also accrued for substantial period. The amount which becomes dues after the calculation of the interest at the rate of 18 per cent for the aforesaid period would be almost Rs. 2 crores. Thus UOI/landdo gets suitably compensated in this way. (218)WE accordingly dismiss the appeal of the Union of India/landdo. (219)VII. TASK AHEAD by the interim order dated 16-7-1993 passed in one of the suits, the building was ordered to be sealed and possession was handed over to the NDMC. The NDMC was directed to take care of the building. Thereafter, order dated 26-11-1996 was passed directing the NDMC to post security guards. However, the harsh reality is that building today is in a sorry state/dilapidated condition. Most of the electrical and toilet fittings as well as fittings including doors, windows etc. have been stolen. (220)PLANE of the building were sanctioned by the ndmc on 18-1-1980 which were revised from time to time. Completion plans were submitted by the Skippers after allegedly completing the building. These plans were rejected by the NDMC. Before the Committee Shri v. P. Gupta, Chief Architect, NDMC appeared on several occasions. He pointed out that there are certain deviations in the building because of which completion certificate could not be granted. Some of these deviations were compoundable while others were non-compoundable. The Committee had mentioned in its report that the deviations which are not compoundable will have to be corrected. However, as of today, due to the removal and theft of fittings building is in a neglected position. All the parties before us admitted that the task to be accomplished for completing the building in all respects would be much more than what was contemplated by the Committee. The Committee had also noted that for obtaining completion certificate, no Objection Certificate from Chief Fire Officer, clearance from the Chief Engineer, Electrical, NDMC as well as Lift Fitness Certificate were also required. Final sanction from NDMC i. e. completion certificate is also required. For all these Jobs, modalities have to be worked out. Two things are to be determined for this purpose: no. 1. Under whose supervision this work is to be done. No. 2. How much money is required and who should pay the same. No. 1. The Skippers had offered to do this job. It had also suggested that flat buyer should pay at the rate of Rs. 750. 00 per sq. ft. Going by the bitter experience of past when repeated faults and various irregularities were committed by the Skippers, we cannot repose trust in the Skippers. All the flat buyers also, in one voice, opposed this suggestion of the Skippers. We, therefore, feel that a Committee should be constituted to undertake the aforesaid Jobs. It would also be appropriate to have technical as well as legal experts in the Committee. The earlier committee consisted of Justice Avadh Behari Rohtagi and justice Charanjit Talwar. They had dealt with each issue minutely and extensively. It may be appropriate to count on the rich experience of the Committee. Unfortunately, Justice Charanjit Talwar has since expired. We, therefore, appoint Justice Avadh Behari rohtagi as the Chairman of the Committee who will be assisted by the following members of the Committee: A. Mr,k. K. Khanna, Retired Chief Engineer. CPwd, r/o A-l/85, Ground Floor, Safdarjung Enclave, New delhi B. Mr. B. S. Duggal , former Director General, cpwd r/o B-l30/2 East of Kailash, New Delhi. (221)THE Committee shall be entitled to take assistance of any other person on payment of fee or otherwise as it deems fit while carrying out its function. The Committee is hereby authorised to undertake all the Jobs enumerated in this judgment including but not limited to: a. Allotment of the specific areas to the flat buyers. b. Completion of the building including demolition of unauthorised and uncompoundable area, providing of necessary fittings and fixtures, bringing the building inconformity with the requirements of NDMC and other statutory authorities and for this purpose appointment of Contractors. c. Obtaining permission/clearance/no objection Certificate from Chief Fire Officer, Chief engineer (Electrical)of NDMC, Lift Fitness Certificate from Delhi Administration, final sanction from NDMC. d. Other jobs required and are mentioned in the Committee's report. (222)WE fix the fee of the Committee at two per cent of the total amount which would be collected from the flat buyers required to be spent on completion of the building. This fee would be shared by the Chairman and the two Members in the ratio of 40:30:30. The fee shall be payable in four stages, namely: (i)25 per cent within one month of the last date on which flat buyers would be required to pay the money demanded from them/first instalment of the money demanded from them. (ii)25 per cent after the completion of task (i)above and before the start of task (ii). (iii)25 per cent after the completion of task (ii)above, (iv)Remaining 25 per cent after all the jobs performed by the Committee. No. 2. This brings us to the question of raising the corpus fund for undertaking the unfinished tasks enumerated above. It is clear that the Skippers would not contribute any amount. In fact, learned counsel for the Skippers made this intention clear at the time of arguments and even submitted that as far as the Skippers are concerned they had already completed the building in all respects and, therefore, they cannot be made to spend all over again. This may not be fully correct. Fact remains that no purpose would be served in giving direction to the Skippers in this respect as it would not yield any fruits and the sufferings of the flat buyers would again perpetuate. Keeping in view this , the Committee as well as learned single Judge opined that it is the flat buyer who will have to contribute the money for this purpose, we also feel that this is the only course of action which can be adopted in the given circumstances, we may also point out that at the time of arguments most of the counsel stated that the flat buyers were ready to cough out reasonable amount ordered by this Court. (223)THE Committee had suggested that the flat buyer should pay at the rate of Rs. 250. 00 per sq. ft. as area allotted to each flat buyer. This may not be adequate amount inasmuch as not only cost of construction has gone up tremendously over the period of time, the work now required to be done is much more than anticipated by the Committee. Secondly, the decree in favour of the Landdo has to be satisfied. (224)THE learned Single Judge in the impugned judgment has directed payment of Rs. 3,250. 00per sq. ft. on this account. As already mentioned above, almost all appeals filed by the flat buyers have challenged this direction. We find that the grievance of the flat buyers on this account is justified inasmuch as not only the amount deposited at this rate is exorbitant, in the impugned judgment no basis/for appearing at flits figure is given by the learned Single Judge. The only observations found in the impugned judgment are that the prevailing rate in the locality is between rs. 20,000/- and Rs. 25,000. 00 per sq. ft. and, therefore. even by paying at the rate of Rs. 3250. 00 per sq. ft plus the amount already paid by these flat buyers they stand to gain a lot. That may be a good reason for directing the flat buyers to pay. However, the basis of fixing the rate of Rs. 3250. 00 per sq. ft is not discernible. No reasons in support thereof can be found in the impugned judgment, we, therefore, set aside this direction in the impugned judgment. (225)WHILE arriving at the estimated amount, which the flat buyers should be made to contribute, it would be appropriate to take account of the expenditure required to complete the building, the amount needed for Landdo dues, fire fighting charges/provision, electricity sub-station, lifts, electrical works, sanitary fittings, civil work and other contingencies. The estimated figure under the aforesaid heads as given to us are as under; 1. L and DO Dues Rs. 1,85,00,000 (appox.)Principal amount rs. 58,95,911. SI 18 and p. a. calculated from 27. 6. 1989 to 27. 6. 2001. 2. Fire Rs. 50,00,00,0 Estimated amount required, fighting 3. Electric sub-Rs. 40,00,000 Estimated amount required station (28l in 1. 994)4. Lifts (2)Rs 40,00. 000 2 New Lifts + Repair of old lifts. 5. Electrical work Rs. 25,00,000 Estimated amount required. 6. Sanitary Rs. 40,00,000 Approx. 200 WCs. @ fittings Re. 20,000/- each 7. Civil work Rs. 1,50,00,000 Including repair, erection of portion walls restoration of facade, common areas etc. 8. Contingency Rs. 53,00,000 10% of all costs. Total Rs. 5,83,00,000 (say Rs. 6 crores). (226)KEEPING in view the extent of area allotted to the flat buyers, to generate the aforesaid amount, the flat buyers may have to pay at the rate of Rs. 550. 00 per sq. ft. by those who are- allotted the area on Ground floor and above and Rs. 300. 00per sq. ft. by those who are allotted the area in the Basements. Therefore, the flat buyers are directed to make the payment on the aforesaid basis. The allotment to these flat buyers in the manner mentioned above would be subject to the condition that this amount is deposited by the fiat buyers. The appeals filed by the appellants challenging the fixing of Rs. 3,250. 00 per sq. Ft. are accordingly allowed and substituted by this direction. Some flat buyers however paid more than 100 per cent of the cost. They would be allowed the adjustment of the excess payment while calculating the amount payable by them now. In case of those who had paid lessor amount since their area stands proportionately reduced while making the allotment to them, they would pay at the rate of Rs. 550. 00/rs. 350/- per sq. ft. It is however made clear that in case further funds are required by the Committee in completing the building, liberty is granted to the Committee to seek appropriate directions. The Committee is authorised to cancel allotment to any party failing to pay further amount as directed now on such terms and conditions as may be considered proper by the Committee and such space be allotted afresh to the wait-listed persons. These payments be deposited in a separate account in the name of Justice Avadh Behari Rohatgi for Skippers Bhawan. The Chairman will open this account in a Bank and decide the manner in which the account is to be operated. (227)VIII. Directions against the Skippers : it was strenuously argued by lt. Col. Jaswant singh, Vice President of the Skippers Bhawan Flat buyers Association that this situated is created because of the illegal and unethical acts of the skippers, they should be fastened with the liability and responsibility for completion of the building and the money required for this purpose should be paid by the Skippers. While it cannot be denied that the conduct of the Skippers has been blameworthy, we have still asked the flat buyers to pay for completing the unfinished task. while doing so, we have taken a realistic view inasmuch as directions to the Skippers to foot the bill would lead us nowhere and the result would be that building would remain incomplete and flat buyers would remain stranded. However, we may note here that the learned Single Judge, while allowing the money claims of various parties, had directed that the same would be paid from the funds collected from the flat buyers, we set aside this direction and hold that this liability would be that of the Skippers. It may also be mentioned that in other proceedings filed by the Association before the National Consumer Disputes redressal Commission, the Skippers have been saddled with liability to pay interest which, we are informed, has been upheld by the Supreme Court. Therefore, no further direction may be necessary against the Skippers in these cases relating to specific performance of suits. (228)WE started this judgment by recording the sad state of affairs occasioned by the shady and dubious activities of the Skippers which has resulted in unending wait For the flat buyers to take possession of the space/flats booked by them in the building at 22, barakharnba Road, New Delhi. By the present exercise accomplished with the help of counsel for all the parties who appeared in these cases and assisted and argued the matter for more than six months, we hope there may be a glimpse of some light and we have reached the end of the tunnel. Be that as it may, our duty is to see that the long. journey and patience wait comes to an end and with this hope we approached the problem. All the appeals and CMPs stand disposed of.
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