1. Heard learned counsel for the appellant and learned counsel for the first respondent.2. We had adjourned the matter in order to explore the possibility of some sort of settlement and for which, learned counsel for the appellant had sought time to obtain instructions.3. The order passed by us on 01.09.2020 and again on 22.09.2020 are extracted herein under:1. Learned representing counsel Mr.Arun Kumar holding brief for Mr.N. Neduncheziyan has appeared and prays for an adjournment.2. Learned counsel for the appellant submitted that if the respondents / petitioner is willing to pay the amount which is requirement for re-allotment, the same can be considered.3. Learned counsel for the respondent / petitioner may obtain instructions on this and inform the Court, for which, an adjournment is sought for.4. List on 22.09.2020.22.09.20201. Learned counsel for the respondents submits that he will serve a copy of the affidavit on the learned counsel for the appellant by 24.09.2020 in respect of the offer indicated in the order dated 01.09.2020.2. Learned counsel for the appellant submits that in order to give quietus to the issue, she will obtain instructions accordingly and inform the Court next week.3. List on 05.10.2020.4. Affidavits have been filed and it appears that the first respondent has made an offer which is nowhere near to the demand raised by the appellant. There is, therefore, no possibility of any such settlement as per the affidavits filed before us.5. In the wake of the aforesaid facts, we have proceeded to hear the matter on merits.6. Learned counsel for the appellant has taken us through the various communications right from the allotment order dated 28.02.1991 upto the communication dated 26.09.2020. The first respondent, who had tendered only 27 instalments out of 60, had admittedly defaulted in the payments as per the agreement.7. It is further pointed out that in terms of the application, the agreement was entered into which contains clause 15 that is extracted herein under:“15. If the Lessee/Purchaser commits a breach of any of the conditions to be performed by him under these presents or makes default in the payment of rent or other monies payable under these presents, he shall be liable to be evicted from the premises despite previous payment over and above the minimum purchase price and in case the Lessee/Purchaser is so evicted, he/she shall not be entitled to claim from the Lessor/Vendor any compensation towards the value of the improvements or the Superstructure erected by him on the property by virtue of and in purpose of these presents;Non-payment of instalment/rent before the prescribed date shall entitle recovery of such sums under the Revenue Recovery Act and or cancellation of allotment and forfeiture of amounts already paid.”8. Learned counsel for the appellant submits that the allotment had already been cancelled on 03.09.1992 and inspite of repeated opportunities, even thereafter, the first respondent has failed to clear the dues and to the contrary, vide communication dated 01.02.1995, had made a request to take back the plot and repay the amount with 18% interest, or restrain the authorities from raising any further demand. The third request made by the first respondent was to allot a commercial plot in the middle of the scheme.9. The said request was not accepted by the Board and an intimation was given on 10.07.1995 to the first respondent to make full and final payment or else the plot will be treated to have been cancelled and the cancellation will be deemed to be confirmed.10. The first respondent did not respond to the same and on 14.07.2009 a publication was made by the Tamil Nadu Housing Board calling upon flat/house/plot owners to get the allotment regularised and make the default payments good.11. Learned counsel for the appellant submits that this is not for commercial plots and therefore it was not applicable in the case of the first respondent.12. The first respondent filed the writ petition and the learned Single Judge has allowed it on the ground that the appellant had deposited a sum of Rs.85,265/- out of the total amount of Rs.1,21,265/- and therefore, the first respondent was entitled to the benefit of the publication dated 14.07.2009 referred to above. The learned Single Judge also went on to indicate that it will not be appropriate now to send the first respondent before the revocation committee.13. Learned counsel for the appellant contends that the aforesaid findings of the learned Single Judge are contrary to the terms and conditions of the agreement and an erroneous assumption was made with regard to the applicability of the publication dated 14.07.2009 which had been specifically raised but was negatived by the learned Single Judge for no valid reason. It is therefore submitted that the impugned judgment deserves to be set aside and the petition deserves to be dismissed.14. Learned counsel for the first respondent/petitioner on the other hand contends that it was the hard earned savings of the first respondent / petitioner that were deposited with the appellant and inspite of repeated requests and more than 2/3rd of the amount having been deposited, the appellant failed to accept the request of the first respondent / petitioner which ought to have been done keeping in view the representations made and the own publication of the appellant dated 14.07.2009.15. It is urged that the first respondent / petitioner was always willing and ready to purchase the property, but, the appellant created impediments and did not accede to the request of the first respondent / petitioner for no valid reason. The deposit already made with the appellant has earned huge dividends and therefore, had the money been deposited in some bank, it would have earned a sizable amount of interest/profit, of which, the first respondent / petitioner has been deprived. The first respondent/petitioner is still willing to purchase the property on the terms and conditions that had been agreed upon with the balance of the payment and therefore, the impugned judgment does not call for any interference.16. We have considered the submissions raised and we find that this is one of those peculiar cases where even though the first respondent/petitioner has made a substantial payment, yet, has fallen into the category of a defaulter. The forfeiture clause as pointed out by the learned counsel for the appellant also stares on the face of it.17. The learned Single Judge has nowhere considered these aspects and has rather applied the publication dated 14.07.2009 in favour of the first respondent / petitioner. We are unable to subscribe to the said view, inasmuch as the said publication nowhere indicates that it is also applicable for commercial plots nor any material has been brought before us to demonstrate that any such concession has been granted in respect of any commercial plots having been allotted by the Tamil Nadu Housing Board. In the said circumstances, to construe that the said publication also was meant for commercial plots is not correct.18. Even otherwise the first respondent/petitioner had been time and again intimated about the cancellation through the communications which have been brought on record and have been perused by us. These communications clearly indicated cancellation of the allotment and it confirms that the communications do not appear to have been challenged.19. In the said circumstances, to file a writ petition and then seek a re-allotment may not be permissible in the background aforesaid.20. However, we find a relatively harsh position, in which, the first respondent/petiti
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oner has been placed that inspite of having paid a sum of Rs.85,265/- which is not disputed, she is being made to face the forfeiture clause. In our considered opinion, and as a special case, without laying down any precedent, we find it expedient that even though the forfeiture clause does not allow us to award any interest on the amount so deposited by the first respondent/petitioner, we find it expedient and in the interest of justice, the first respondent/petitioner should be restored atleast the principal amount as already deposited with the appellant.21. We therefore, allow the appeal setting aside the impugned judgment dated 27.03.2019, but, at the same time, direct the appellant to refund the amount of Rs.85,265/- to the first respondent / petitioner within three weeks from today.22. The appeal stands allowed accordingly. No costs.