Hon'ble Saurabh Lavania,J.
(Per-Saurabh Lavania,J. ) Heard Sri Pradeep Kumar, learned counsel for the petitioner, Sri Syed Shabab Haider Zaidi, learned counsel for U.P. Awas Evam Vikas Parishad, Lucknow (hereinafter referred in short as "Parishad") and Sri Gopal Kumar Srivastava, learned counsel for the opposite party No.3/Central Bank of India, Hazratganj, Lucknow (hereinafter referred in short as "Bank").
The petitioner, who was allotted Flat No.8/B-4/102 at Sector-8 Gangotri Enclave of Avadh Vihar Yojana, Sultnapur Road, Shaheed Path, Lucknow by the Parishad, has approached this Court by means of present writ petition seeking direction to opposite parties to provide possession of the flat which was allotted to the petitioner.
For purposes of reliefs sought in the instant writ petition, it is stated by the petitioner that in view of terms and conditions of advertisement as also the order of allotment, petitioner was required to pay Rs.25.25/- lakh in quarterly installments and the said amount was paid by the petitioner from 14.09.2013 to 16.05.2016.
It is also stated that Rs.1,13,625/- towards Service Tax @ 4.5% on total cost of Rs.25.25/- lakh, was also deposited by petitioner on 03.05.2017 in Account No.005500200001537 of Parishad. Despite entire amount deposited by petitioner, Parishad has failed to provide possession of the flat in question. Hence, this writ petition.
In the supplementary affidavit filed by the petitioner, it has been stated that after filing of instant writ petition, Parishad issued the allotment letter dated 05.12.2019, which was received by petitioner on 10.12.2019.
The petitioner has also questioned certain conditions mentioned in the allotment letter dated 05.12.2019, as stated in supplementary affidavit, which are as under:-
"Firstly, petitioner is suppose to deposit miscellaneous expenses by 31.10.2019 with Axis Bank, which is absurd preposition because petitioner received demand after the schedule date of deposit.
Secondly, petitioner had deposited Rs.25.25/- lakh till 16.05.2016 but by means of above mentioned letter, amount deposited with opposite parties by the petitioner has been shown as Rs.22,85,000/- and there is difference of Rs.2,40,000/- although petitioner has annexed all the payment receipts as Annexure No.3 to writ petition. Even after timely deposit of installment with schedule Bank of opposite parties by petitioner, an additional interest of Rs.16,474/- against adjustment amount has been imposed.
Thirdly, a charge of Rs.1,29,840/- has been imposed as additional interest against unadjusted amount.
Fourthly, a service tax @ 4.5 to the tune of Rs.1,21,530/- has been imposed by opposite parties, although, petitioner has already deposited Rs.1,13,625/- as per Demand letter dated 06.04.2017 against Service Tax."
With regard to deposit of Rs.2,40,000/-, which was paid through Demand Draft No.031549, dated 09.11.2015, it is stated that said amount was timely deposited with Parishad and petitioner was never informed with regard to reasons for return of said Demand Draft nor was it returned to him.
As per counter affidavit of Parishad, the Demand Draft No.031549 amounting to Rs.2,40,000/- submitted by petitioner was returned with remark "RETURN REASON CODE-36" by Bank and accordingly, the amount, under Draft, has not been credited in the account of Parishad and if petitioner deposits balance amount, the sale deed would be executed and possession of flat in question would be handed over. Its Counter affidavit also says that letters dated 19.11.2016, 14.11.2017, 20.04.2019, 27.11.2019, 08.04.2019 and 08.08.2019 were sent to the Manager, Central Bank of India, Hazratganj, Lucknow in relation to clarification regarding the payment under Demand Draft No.031549 dated 09.11.2015 but the same were not responded by the Bank.
This Court, after considering the material available on record as also the submissions of learned counsel for the parties, on 05.03.2020, passed the following order:-
"Heard Shri Pradeep Kumar learned counsel for the petitioner, Shri Gopal Kumar Srivastava, learned counsel for respondent no.3-Bank and Shri S.H. Zaidi, learned counsel for respondents no. 1 and 2.
On 18.2.2020, after hearing the learned counsel parties, we passed the following order :-
"Heard Sri Pradeep Kumar, learned counsel for the petitioner, Sri Puneet Chandra, learned Advocate on behalf of Sri Jaideep, learned counsel for respondent no. 1 and 2 and Sri Gopal Kumar Srivastava for respondent no. 3.
Learned counsel for the petitioner has submitted that though respondent no. 3 Bank has received the Draft of Rs. 2,40,000/- dated 09.01.2015 issued by Vijya Bank but from the Bank side i.e. respondent no. 3, the same has been wrongly deposited in the State Bank of India and therefore, the same has been returned with a memo that "out cheque returned/wrongly delivered/not drawn on us", and therefore, the amount was not deposited in the account of respondent no. 1 and 2 and due to non deposition of said amount, no sale deed has been executed.
Considering the aforesaid, the Bank (respondent no. 3) is liable to pay all the penal charges and interest w.e.f. the date of receipt of Demand Draft no. 031549 dated 09.11.2015 issued by the Vijya Bank, Branch Code-7171, deposited with Central Bank of India.
Learned counsel for respondent no.1 and 2 has filed an illness slip and therefore we fix the matter after a week as fresh and direct respondent no. 1 and 2 to give the detail of interest/penal charges which has been levied against the petitioner so that the same may be deposited in the account of respondent no. 1 and 2 and thereafter sale deed be executed."
Learned counsel for the U.P. Awas Evam Vikas Parishad, Lucknow submits that today, he has filed counter affidavit in the registry of this Court.
That being so, office to verify and place it on record.
It is not disputed that respondent no.3-Bank has received Draft of Rs.2,40,000/- on 9.1.2015 issued by Vijiya Bank but the same has wrongly been deposited in the State Bank of India and, therefore, said amount was not deposited in the account of respondent no.1.
Learned counsel for the petitioner has submitted that as the balance amount has been deposited vide Demand Draft dated 9.1.2015 and, therefore, interest and other charges on the aforesaid dues of Rs.2,40,000/- is liable to bear by respondent no.3-Bank.
Learned counsel for the U.P. Awas Evam Vikas Parishad, Lucknow has drawn our attention of the chart showing charges on total dues of Rs.7,24,936/- which includes the interest and penalty on the amount of Rs.2,40,000/-, as the same was not deposited in time in the account of the opposite parties no.1 and 2.
Learned counsel for the petitioner has drawn our attention towards supplementary affidavit particularly in para 4 and submitted that in respect of Demand of service tax @ 4.5 per cent, the petitioner has already deposited Rs.1,13,625/- but without adjusting the aforesaid amount, the Demand of Rs.1,29,840/- has been imposed. The additional interest amounting to Rs.16474/- and charge of Rs.1,29,840/- has to be bear by respondent no.3-Bank.
Considering the aforesaid, as prayed by learned counsel for the respondent nos. 1 and 2, we grant last opportunity of ten days time to file supplementary counter affidavit and point out the details about the interest and penalty as additional interest impose in respect of non-payment of Rs.2,40,000/- and whether he has adjusted the amount of service tax as deposited by the petitioner amounting to Rs.1,13,625/.
List after two weeks, as fresh."
After the aforesaid the Bank-opposite party No.3 filed counter affidavit and according to the same on 19.11.2015 the opposite party No.2-Parishad deposited the Demand Draft No.031549 of Rs.2,40,000/- issued by Vijaya Bank, which was deposited by petitioner with Parishad and the said Demand Draft was sent by the Bank for clearing through SSB, Lucknow. The Draft in question was not cleared and returned with the remark "Out Cheque Returned" and thereafter the said Draft was returned to Parishad which is also borne out from the letter of Parishad dated 19.11.2016. Consequently the amount of the Draft in issue was not credited in the account of Parishad and, as such, the said amount can not be treated as deposited. It further says that Draft in issue was not re-presented by Parishad after being returned/received by it. There is no fault of Bank in this regard.
On 07.01.2021, this Court passed the following order:-
"After hearing the parties, prima facie, it appears that opposite party Nos.2 and 3 have turned the litigant petitioner into a Badminton Shuttlecock. While the Bank says that the Demand Draft was not honoured and was returned back on 19.11.2015 but in support thereof it is not able to show any proof of returning of the Demand Draft except some entry made in the statement of account.
On the other hand, the counsel for the Awas Vikash Parishad says that the Demand Draft was returned to it only on 08.06.2016 that too much after the expiry of the validity period of three months, therefore a letter dated 19.11.2016 was written by the opposite party No.2 to opposite party No.3 as to for what reason the Demand Draft has been returned.
The counsel for the Awas Vikas Parishad further says that the said Demand Draft bearing No.031549 was returned back to opposite party No.3 vide letter dated 19.11.2016, a copy of which is annexed as Annexure CA-2 to the counter affidavit of opposite party No.3 itself and on which reliance has been placed by Sri Gopal Kumar Srivastava, learned counsel for opposite party No.3. However, learned counsel for Awas Vikas Parishad has not annexed the document nor any averment has been in the counter affidavit of the opposite party No. 2 that the said Demand Draft was received on 08.06.2016.
Learned counsel for Awas Vikas Parishad shall file a supplementary counter affidavit within two days mentioning all relevant facts and annexing all relevant documents as the opposite party No.2 may so desire, in its defence after serving a copy thereof upon the petitioner as also learned counsel for the opposite party No.3.
In addition he shall also serve all the pleadings filed by him before this Court in these proceedings upon Sri Gopal Kumar Srivastava, learned counsel for the opposite party No.3.
The petitioner and opposite party No.3, if they choose, may file a response positively within the next two days i.e. by 11.01.2021.
In addition to it, if opposite party No.3 wants to file any pleadings to defend itself, may do so by 11.01.2021. The Sampatti Adhikari alonwith the Joint Commissioner, Sampatti U.P. Awas Vikas Parishad, Lucknow shall appear before this Court on the next date and in interregnum they shall try to sort out the matter as the petitioner can not be made to suffer merely because of opposite party Nos.2 and 3 and the misplacement of the Demand Draft by either of them.
The Senior Manager of Central Bank of India, Hazratganj Branch, who is present before this Court on his own namely Shivtap Gulshan, shall also appear on the next date.
List this case on 12.01.2021. The matter shall be taken up as the first case on the next date. "
Pursuant to order dated 07.01.2021 Parishad, filed short supplementary affidavit dated 11.01.2021. In the affidavit, main contention is to the effect that Demand Draft No.031549 of Rs.2,40,000/- dated 09.11.2015 issued by Vijaya Bank was returned with remark "RETURN REASON CODE-36", and was received in the office of Parishad on 08.06.2016, i.e. after expiry of its validity period. The Parishad, in the short supplementary affidavit dated 11.01.2021, has stated that Original Draft in issue, which was returned by Bank, was sent to Bank vide letter dated 19.11.2016 alongwith Bank statement and e-mail addressed to petitioner for clarification regarding payment pertaining to Demand Draft No.031549 dated 09.11.2015, in view of Bank E-mail to petitioner dated 13.10.2016 by which petitioner had been infromed by the Bank that the Draft amount had been credited in Parishad's account and in support thereof, reliance has been placed on documents annexed as Annexure Nos. SA-1, 2 and 3 to the short supplementary affidavit. It appears that as the amount in question as per E-mail dated 13.10.2016, was credited on 19.11.2015 therefore Parishad sought clarification but it did not receive any response and another letter was also sent by the Parishad to the Bank on 20.04.2019 on the same issue. In support of this contention Parishad has also placed on record copy of Dispatch Register (Annexure No.SA-3 to Short Supplementary Affidavit). Parishad, therefore, says that the original draft, which could not be encahsed, is with the Bank and not with the Parishad as it had been sent to the Bank vide letter dated 19.11.2016.
The Bank, on the other hand, has denied the averments related to receiving of Original Demand Draft in issue as also the receiving of letter dated 19.11.2016 from the Parishad. The Bank in its pleading has also stated that Draft in issue was never re-presented for payment.
From the pleadings on record it is indisputable that Draft in issue which has submitted by petitioner within the validity period was never given back to the petitioner after it was allegedly not encashed, whether within its validity period or thereafter, and it remained either with the Parishad or the Bank. The dispute herein is only with regard to the Bank Draft of Rs.2,40,000/- as the Parishad claims non payment of such amount on account of non credit of the draft amount, as already discussed.
The submission of learned counsel for the petitioner is that petitioner is entitled to possession of flat in issue as also execution of sale deed in his favour as he has deposited entire consideration for the flat which was alloted to him by Parishad and there is no fault on the part of petitioner in regard to payment to be made to the Parishad. He has deposited the entire sale consideration. He had also deposited the amount of Rs.2,40,000/-, which is in dispute, through Demand Draft No.031549 dated 09.11.2015, within the validity period with the Parishad and Parishad had deposited the same within the validity period in its account with the Bank. The said Demand Draft was never received back by petitioner and petitioner was informed by the Bank through E-mail, dated 13.11.2016 that amount under Draft in issue had been credited in the account of Parishad. Regarding subsequent information received by petitioner, as mentioned in vide letter dated 19.11.2016 of Parishad, which is to the effect that amount under Draft in issue has not been cleared/credited in the account of Parishad and the same was returned with remark "OUT CHEQUE RETURN/ WRONGLY DELIVERED/ NOT DRAWN ON US" and "RETURN REASON CODE-36", the petitioner is not at fault rather the same is on account of fault of Bank as from remark pertaining to return of the Draft it appears that the Bank did not present the Draft for its clearance before appropriate Bank i.e. Vijaya Bank or its appropriate Branch, instead, it was sent elsewhere, on account of which it could not be encashed in time. Had it been returned to him, he would have got it revalidated and presented it again to the Parisahd/Bank, but as it was never returned to him he could not do so. Demand Draft is prepared on payment of cash or debit from account. Petitioner has paid Rs. 2,40,000/- to the Parishad and if there is any dispute between the bank or the Parishad in this regard he can not be made to suffer on this count.
Even at the cost of repetition we may state that it is indisputable that the Demand Draft in question was never received back by Petitioner after it had been deposited by him and it is nobody's case that it was the petitioner who failed to deposit the draft/amount in time. The Parishad alleges that it was returned to the Bank whereas the Bank says it was returned to the Parishad. Only on account of this dispute, petitioner, though he has been allotted a house, is neither being given actual physical possession nor sale deed is being executed by the Parisahd.
Learned counsel for the Parishad, on the basis of the pleadings, submitted that in fact Parishad is not at fault as the Parishad deposited the Draft within time with the Bank and thereafter the said Draft was received from Bank on 08.06.2016 with remark "RETURN REASON CODE-36" and, thereafter, Parishad on 19.11.2016 sought clarification on the issue of payment under Draft. The clarification was sought taking into account the communication of Bank to petitioner, wherein, it has been specifically stated that amount under Draft in issue dated 09.11.2015 has been credited in the Account No.3242059457 of Parishad. Again letters were sent to Bank for clarifying the issue pertaining to payment under Draft but Bank failed to respond to the same. The Original Draft was also sent to Bank vide letter No.7246, dated 19.11.2016, which was duly received by Bank. In this regard, reliance has been placed on Annexure No.SA-3 (Dispatch Register) to the Short Supplementary Affidavit dated 11.01.2021. On account of non-payment of installment of Rs.2,40,000/- which is the amount under Draft neither possession was handed over to petitioner nor sale deed was executed in his favour by the Parishad. The Parishad has already issued the letter of allotment/Demand note dated 05.12.2019 and is ready to execute the sale deed and handover the possession of flat in issue subject to payment of amount mentioned in letter dated 05.12.2019.
Learned counsel for the Bank submitted that the Draft issued by Vijaya Bank submitted/deposited in its Bank Account by the Parishad was sent for clearing through SSB, Lucknow. However, it was not cleared and returned with remark "OUT CHEQUE RETURNED". The amount under Draft in issue was not credited in the account of Parishad and Parishad never re-presented the Draft, after re-validation, for payment of the amount under Draft as such, amount under Draft can not be treated as amount deposited in the account. It is further submitted that Bank never receives stale instruments, which in the present case is a Draft. On the basis of averments made in para 9 of the Supplementary Counter Affidavit dated 12.01.2021 it is stated that as per Bank records no such Draft was received back by Bank. The Bank has denied receipt of letter dated 19.11.2016 specifically.
The instrument, which in the present case is a Draft, has been returned and the reason shown is "Code-36", which has been clarified as "OUT CHEQUE RETURN/WRONGLY DELIVERED/NOT DRAWN ON US" in letter of Parishad dated 19.11.2016, contents of which neither have been denied nor clarified by Bank in the affidavit filed by it. Accordingly, we are of the view that if an instrument was wrongly delivered or was not drawn on a particular Bank the same would be returned under "Code-36". The reason for non credit of the draft, in the facts of the case, is not attributable to petitioner.
It appears from the record, particularly Annexure No.4 to the writ petition that amount in issue in the instant writ petition relates to seventh quarterly installment, which was to be paid between 01.09.2015 and 30.11.2015. The amount of Rs.2,40,000/- pertaining to seventh quarterly installment was paid by petitioner within time through Draft No.031549, dated 09.11.2015 and the same was deposited by Parishad in its account with Bank on 18.11.2015 as is evident from Annexure No.3 to the Counter Affidavit of Parishad, which is a letter dated 19.11.2016 of the Parishad. Bank Draft is a negotiable instrument where payment is guaranteed by the issuing Bank. The draft of Rs.2,40,000/-, as stated, was admittedly submitted by the petitioner with the Parisahd/Bank. Due to some reason not attributable to the petitioner, it could not be encashed within its validity period. In normal course it should have been returned to petitioner for re-presentation after getting it revalidated. This was not done. Bank says it returned the original demand draft to the Parisahd. The date of return is not way clear but its receipt by Parishad is admitted in letter of Parishad dated 19.11.2016. However, by the same letter, Parishad claims to have returned the original draft to the Bank for clarification as already referred. The Parishad has filed the dispatch register to assert receipt of its letter dated 19.11.2016 by Bank on 23.11.2016. Bank denies this assertion.
That the Draft in issue was not received back by petitioner is an undisputed fact, therefore, for all practical purposes he has paid the amount of Rs.2,40,000/- to the Parishad and it is to be treated as paid by him to the Parishad. Question, as to who is in possession of original draft, whether the Parishad or the Bank, is one which is between the Parisahd and the Bank and they can sort out this factual dispute amongst themselves or by taking recourse to appropriate legal remedies as, this disputed question between opposite parties inter-se can not be gone into in these summary proceedings, but, we have not doubt that the petitioner can not be made liable in this regard nor can he be deprived of possession and execution of sale deed in respect to the Flat in question by the Parishad. More than 6 years have passed since he was selected for allotment of Flat and he has not yet got possession thereof.
In view of aforesaid, we are of the view that petitioner is not at fault in any way as the due amount was deposited by petitioner through Draft within due time with the Parishad. The dispute regarding amount under Draft in issue, in our view, is between the Parishad and the Bank and petitioner can not be made to suffer nor can he be denied possession of the Flat and execution of sale deed in respect thereof in his favour. Thus, we hold that petitioner, a bonafide allotee of Parishad, is not at fault in making payment of due amount of Rs.2,40,000/- and is entitled to possession of the flat in issue as also execution of sale deed in his favour taking into consideration that he made payment to Parishad as per terms and conditions of Parishad in due time, which includes the amount of Rs.2,40,000/-.
If the additional interest is being levied vide letter dated 05.12.2019 on account of the alleged non-payment of Rs.2,40,000/-, which, as held by us, has been paid and is to be treated as paid, petitioner is not liable to pay such additional interest or any other amount based on such alleged non payment. The assertion of petitioner that he has already paid service tax shall also be taken into account by the Parishad. Subject to the above, if any amount remains to be paid towards service tax etc. the same shall be paid by the petitioner.
Subject to the above discussion, if any service tax etc. remains to be paid by petitioner the Parishad shall raise a demand within 15 days which shall be paid by petitioner. Thereafter, the sale deed shall be executed by the Parishad in petitioner's favour within one month after completion of necessary formalities and possession shall also be handed over to him within the said period. If no Service Tax is due the execution of sale deed and handing over of possession of the Flat allotted to the petitioner shall be carried out within one month.
Writ petition is allowed in the aforesaid terms.
Order Date :22.02.2021 Vinay/-