Case: AGGARWAL ASSOCIATES (PROMOTERS) LIMITED Vs. DELHI DEVELOPMENT AUTHORITY

us if you have got any objection in the matter so that necessary steps are taken in this matter. 6. As the dispute continued between the parties without any solution in sight, the appellant filed Writ Petition No. 2388 of 1994. It was alleged in the petition that MCD, Respondent 2, was claiming title to the plot which had been auctioned by DDA in favour of the appellant. That DDA did not inform the intending buyers about the dispute between DDA and MCD. That the appellant was justified in his expectation that the property which had been auctioned by DDA would be free from encumbrances. In view of the dispute between MCD and DDA, DDA could not hand over the vacant possession of the property to the appellant. It was further stated that since DDA was not in a position to hand over the peaceful possession of the plot, the auction held by DDA could not be implemented. The appellant in addition to the other reliefs claimed that he was entitled to refund of the earnest money. 7. DDA contested the writ petition and inter alia pleaded that the auction conditions provided for forfeiture of the earnest money in case the bidder did not act in consonance with the terms and conditions of the auction-notice. DDA was always ready to hand over possession of the property and, as a matter of fact, the appellant by letter dated 16-4-1994 asked for extension of time by 45 days for the payment of the balance amount. The possession of the plot was always with DDA and in terms of Clause 2(viii) of the terms and conditions of the auction, the auction was liable to be cancelled and DDA was entitled to pass an order forfeiting the earnest money. 8. The High Court dismissed the writ petition by observing: In the instant case, the petitioner Aggarwal Associates must have inspected the site before bidding at the auction. DDA was bound to deliver possession of the property only on the petitioners depositing the balance 75% of the bid money. Admittedly, the petitioner had not deposited the amount. The petitioner wanted to project a case that DDA was not in a position to put the petitioner in possession. It is merely a make-believe affair. The case of the petitioner cannot be accepted. Therefore, the reliefs prayed for by the petitioner cannot be granted in law. The writ petition, accordingly, stands dismissed. There shall be no order as to costs. 9. To hold that the appellant was not entitled to the refund of the earnest money, the High Court placed reliance on two judgments of this Court, namely, Delhi Development Authority v. Grihsthapana Coop. Group Housing Society Ltd., 1995 Supp (1) SCC 751 and Chandigarh Housing Board v. Avtar Singh, (1995) 5 SCC 313. 10. We agree with the view taken by the High Court. Before complying with the terms and conditions provided in the auction-notice the appellant tried to take possession of the property by putting up his board at the site. The appellant could claim possession of the property only after collecting the allotment-cum-demand letter and on deposit of 75% of the balance bid money. Admittedly, the appellant had not deposited the amount and instead started projecting the case as if DDA was not in a position to deliver the possession of the auctioned property to him as DDA had already transferred the possession of the auctioned property to MCD. The appellant could take all these pleas only after performing his part of the obligation under the terms and conditions of the auction-notice. DDA in its written statement before the High Court had taken a categorical stand that the appellant did not act in consonance with the terms and conditions of the auction-notice. That DDA was in possession of the plot and was always ready to hand over possession of the property provided the appellant complied with the terms and conditions of the auction-notice. We are of the considered view that since the appellant had failed to comply with the terms and conditions of auction, he had no right to claim either the possession or the allotment of the plot in his favour. The plot was sold to him on an as-is-where-is basis. It had been made clear in the terms and conditions of the auction that it would be presumed that the intending purchaser has inspected the site and had familiarised himself with the prevalent site conditions in all respects before giving the bid. The appellant cannot be heard to say that he did not familiarise himself with the prevalent conditions which existed on the site. Instead of collecting allotment-cum-demand letter and paying the balance amount the appellant tried to enter into possession of the property by erecting its board at the site. The appellant did not have the right to enter into possession of the property before collecting the allotment-cum-demand letter and the payment of the balance amount. Since the appellant failed to comply with the terms and conditions of the auction-notice there was no concluded contract between the parties. 11. The counsel in the end prayed that in equity and fairness the earnest money deposited by him should be refunded to him. We do not find any merit in this submission. As the transaction fell through by reason of the default or failure of the purchaser, the earnest money could be forfeited as per terms and conditions of the auction-notice. The terms agreed between the parties have to be considered while considering the question of the forfeiture of the earnest money. On facts we find that the appellant tried to play smart to take possession of the property without getting the demand-cum-allotment letter in his favour and the payment of the balance bid money. A person who pleads for equity has to act fairly. Since the appellant did not act fairly, he is not entitled to any sympathetic consideration of his demand for refund of the earnest money. The prayer is rejected.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]10. We agree with the view taken by the High Court. Before complying with the terms and conditions provided in the auction-notice the appellant tried to take possession of the property by putting up his board at the site. The appellant could claim possession of the property only after collecting the allotment-cum-demand letter and on deposit of 75% of the balance bid money. Admittedly, the appellant had not deposited the amount and instead started projecting the case as if DDA was not in a position to deliver the possession of the auctioned property to him as DDA had already transferred the possession of the auctioned property to MCD. The appellant could take all these pleas only after performing his part of the obligation under the terms and conditions of the auction-notice. DDA in its written statement before the High Court had taken a categorical stand that the appellant did not act in consonance with the terms and conditions of the auction-notice. That DDA was in possession of the plot and was always ready to hand over possession of the property provided the appellant complied with the terms and conditions of the auction-notice. We are of the considered view that since the appellant had failed to comply with the terms and conditions of auction, he had no right to claim either the possession or the allotment of the plot in his favour. The plot was sold to him on an as-is-where-is basis. It had been made clear in the terms and conditions of the auction that it would be presumed that the intending purchaser has inspected the site and had familiarised himself with the prevalent site conditions in all respects before giving the bid. The appellant cannot be heard to say that he did not familiarise himself with the prevalent conditions which existed on the site. Instead of collecting allotment-cum-demand letter and paying the balance amount the appellant tried to enter into possession of the property by erecting its board at the site. The appellant did not have the right to enter into possession of the property before collecting the allotment-cum-demand letter and the payment of the balance amount. Since the appellant failed to comply with the terms and conditions of the auction-notice there was no concluded contract between the parties.We do not find any merit in this submission. As the transaction fell through by reason of the default or failure of the purchaser, the earnest money could be forfeited as per terms and conditions of the auction-notice. The terms agreed between the parties have to be considered while considering the question of the forfeiture of the earnest money. On facts we find that the appellant tried to play smart to take possession of the property without getting the demand-cum-allotment letter in his favour and the payment of the balance bid money. A person who pleads for equity has to act fairly. Since the appellant did not act fairly, he is not entitled to any sympathetic consideration of his demand for refund of the earnest money. The prayer is rejected.