# Smt. Madhubala Jaiswal v. Real Estate Appellate Tribunal & Ors

- **Citation:** (2024) 8 ILRA 1050
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-22
- **Case number:** Writ - C No. 15996 of 2022
- **Bench:** Mahesh Chandra Tripathi, Prashant Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-madhubala-jaiswal-v-real-estate-appellate-tribunal-ors-52379
- **Pages:** 11

## Headnote

A. Real Estate Law - Allotment of land - As
per the doctrine of "commodum ex injuria
sua nemo habere debet", it is settled law
that no party can take advantage of their
own fault. (Para 33)

No one can be permitted to take undue and
unfair advantage of his own wrong to gain
favourable interpretation of law. It is a sound
principle that he who prevents a thing from
being done shall not avail himself of the nonperformance he has occasioned. A wrong doer
ought not to be permitted to make profit out of
his own wrong. (Para 38)

The authorities cannot be allowed to take
undue advantage of their own default in
failure to act in accordance with law
within a reasonable time. (Para 39)

In the present case, the undisputed fact remains
that the respondent no. 3-UPSIDA allocated the
plot to the petitioner without holding proper
title, resulting in a delay of nearly four years to
acquire the title. This delay was obviously not
attributable to the petitioner but solely due to
the actions and internal issues of respondent
no. 3. Therefore, respondent no. 3 cannot take
advantage of the delay or default that they
themselves caused and ask for interest to be
paid for that period. (Para 40)

The only bone of contention before the Court is
whether the UPSIDA is entitled to levy
interest on the remaining balance due
from the petitioner during the period in
which the delay was attributable to
UPSIDA itself. According to the terms of the
allotment letter, the petitioner was required to
pay 25% of the total premium amount within 30
days of the allotment, following which UPSIDA
was obligated to execute the lease deed in
favour of the allottee. In this instance, despite
the petitioner having paid 80% of the premium
amount,
UPSIDA
failed
to
execute
the
"Conveyance Deed" or hand over possession
until January 25, 2021, due to internal issues
within UPSIDA. (Para 41)

B. In the interest of justice, there cannot
be a discrepancy in the rate of interest
applied. It is unjustifiable for UPSIDA to
impose an interest rate of 14%, later reduced to
12%, for the period of delay, which is solely
attributable to UPSIDA, caused by its own
8 All. Smt. Madhubala Jaiswal Vs. Real Estate Appellate Tribunal & Ors.
1051
actions. The 14% interest rate was originally
stipulated for instances where the allottee opted
for installment payments which the petitioner
did not opt for. If UPSIDA offers a 6% interest
rate to individuals, for withdrawing from the
agreement, in all fairness, it cannot charge 14%
or 12% interest from those who remain
committed to the agreement. Moreover, there
is no provision in the allotment letter for
charging interest if the default is on
UPSIDA's part. (Para 41)

A party cannot be permitted to "blow hot
and cold", "fast and loose" or "approbate
and reprobate" at the same time. This rule
is applied to do equity, however, it must not be
applied in a manner as to violate the principles
of right and good conscience. Therefore,
UPSIDA cannot take unjust benefit from its own
delay and must rectify the interest rate
accordingly. (Para 42)

The established legal principle that no party
should get benefit for their own wrong applies
in the present case. Accordingly, respondent No.
3, UPSIDA, is directed to correct the unjust
imposition of interest and to comply with
appropriate legal standards. They may only
charge interest @ 6% on the outstanding
amount. Upon the petitioner paying the
outstanding amount along with 6% interest rate
for the period from the date of allotment of plot,
respondent no.3 is obligated to execute the
lease deed and complete all other formalities
within 2 weeks thereafter. (Para 44)

Regarding the interest on the 80% premium
amount paid by the petitioner, this matter is
currently pending before the RERA Appellate
Authority. The petitioner is entitled to pursue
the issue for interest or damages for the period
during which the payment was made, and the
property could not be enjoyed by her. (Para 43)

Writ petition dis

## Text

1050 INDIAN LAW REPORTS ALLAHABAD SERIES
order of blacklisting is accordingly required
to be passed taking into consideration all
aspects and should not be passed in a
casual and cavalier manner as the same has
an impact on the person for which such
blacklisting is done.

8. In light of the same, we are of the
view that it was imperative upon the respondent
authorities to consider the reply given by the
petitioner in totality and the mere rejection by
using the term "reply is not satisfactory" is
uncalled for and cannot be accepted.

9. In view of the aforesaid reasons,
this writ petition is allowed. The order
dated 23.1.2024 is quashed with liberty to
respondents to pass fresh order after
considering the reply submitted by the
petitioner.
----------
(2024) 8 ILRA 1050
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.08.2024

BEFORE

THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
THE HON'BLE PRASHANT KUMAR, J.

Writ - C No. 15996 of 2022

Smt. Madhubala Jaiswal ...Petitioner
Versus
Real Estate Appellate Tribunal & Ors.
 ...Respondents

Counsel for the Petitioner:
Pankaj Jaiswal

Counsel for the Respondents:
Anuj Pratap Singh, Ashish Agrawal, Mohd.
Afzal, Wasim Masood

A. Real Estate Law - Allotment of land - As
per the doctrine of "commodum ex injuria
sua nemo habere debet", it is settled law
that no party can take advantage of their
own fault. (Para 33)

No one can be permitted to take undue and
unfair advantage of his own wrong to gain
favourable interpretation of law. It is a sound
principle that he who prevents a thing from
being done shall not avail himself of the nonperformance he has occasioned. A wrong doer
ought not to be permitted to make profit out of
his own wrong. (Para 38)

The authorities cannot be allowed to take
undue advantage of their own default in
failure to act in accordance with law
within a reasonable time. (Para 39)

In the present case, the undisputed fact remains
that the respondent no. 3-UPSIDA allocated the
plot to the petitioner without holding proper
title, resulting in a delay of nearly four years to
acquire the title. This delay was obviously not
attributable to the petitioner but solely due to
the actions and internal issues of respondent
no. 3. Therefore, respondent no. 3 cannot take
advantage of the delay or default that they
themselves caused and ask for interest to be
paid for that period. (Para 40)

The only bone of contention before the Court is
whether the UPSIDA is entitled to levy
interest on the remaining balance due
from the petitioner during the period in
which the delay was attributable to
UPSIDA itself. According to the terms of the
allotment letter, the petitioner was required to
pay 25% of the total premium amount within 30
days of the allotment, following which UPSIDA
was obligated to execute the lease deed in
favour of the allottee. In this instance, despite
the petitioner having paid 80% of the premium
amount,
UPSIDA
failed
to
execute
the
"Conveyance Deed" or hand over possession
until January 25, 2021, due to internal issues
within UPSIDA. (Para 41)

B. In the interest of justice, there cannot
be a discrepancy in the rate of interest
applied. It is unjustifiable for UPSIDA to
impose an interest rate of 14%, later reduced to
12%, for the period of delay, which is solely
attributable to UPSIDA, caused by its own
8 All. Smt. Madhubala Jaiswal Vs. Real Estate Appellate Tribunal & Ors.
1051
actions. The 14% interest rate was originally
stipulated for instances where the allottee opted
for installment payments which the petitioner
did not opt for. If UPSIDA offers a 6% interest
rate to individuals, for withdrawing from the
agreement, in all fairness, it cannot charge 14%
or 12% interest from those who remain
committed to the agreement. Moreover, there
is no provision in the allotment letter for
charging interest if the default is on
UPSIDA's part. (Para 41)

A party cannot be permitted to "blow hot
and cold", "fast and loose" or "approbate
and reprobate" at the same time. This rule
is applied to do equity, however, it must not be
applied in a manner as to violate the principles
of right and good conscience. Therefore,
UPSIDA cannot take unjust benefit from its own
delay and must rectify the interest rate
accordingly. (Para 42)

The established legal principle that no party
should get benefit for their own wrong applies
in the present case. Accordingly, respondent No.
3, UPSIDA, is directed to correct the unjust
imposition of interest and to comply with
appropriate legal standards. They may only
charge interest @ 6% on the outstanding
amount. Upon the petitioner paying the
outstanding amount along with 6% interest rate
for the period from the date of allotment of plot,
respondent no.3 is obligated to execute the
lease deed and complete all other formalities
within 2 weeks thereafter. (Para 44)

Regarding the interest on the 80% premium
amount paid by the petitioner, this matter is
currently pending before the RERA Appellate
Authority. The petitioner is entitled to pursue
the issue for interest or damages for the period
during which the payment was made, and the
property could not be enjoyed by her. (Para 43)

Writ petition disposed of. (E-4)

Precedent followed:

1. M.K. Shah Engineers & Contractors Vs St. of
M.P., (1992) 2 SCC 594 (Para 33)

2. Mrutunjay Pani Vs Narmada Bala Sasmal, AIR
1961 SC 1353 (Para 34)
3. Kusheshwar Prasad Singh Vs St. of Bihar,
(2007) 11 SCC 447 (Para 35)

4. Nirmala Anand Vs Advent Corporation (Pvt.)
Ltd. & ors., (2002) 5 SCC 481 (Para 37)

5. Municipal Committee Katra & others Vs
Ashwani Kumar, Civil Appeal No(s), 14970-71 of
2017, decided on 09.05.2024 (Para 38)

Precedent distinguished:

1. Rajaram Maurya Vs St. of U.P. & ors., Writ-C
No. 32291 of 2022, Neutral Citation No.
2023:AHC:41120-DB (Para 16)

2. U.P. Industrial Development Authority Vs
Raja Ram Maurya, Special Leave to Appeal No.
12196-12197 of 2023 (Para 16)

(Delivered by Hon'ble Mahesh Chandra
Tripathi, J.)

1. Heard Shri Pankaj Jaiswal, learned
counsel for the petitioner, Shri H.N. Singh,
learned Senior Counsel assisted by Shri
Ashish Agrawal, learned counsel appears
for the U.P. State Industrial Development
Authority.

FACTUAL
MATRIX
OF
THE
PRESENT CASE:

2. Uttar Pradesh State Industrial
Development Authority1 launched a scheme of
residential plot in 'Saraswati-Hi Tech City
Naini, Allahabad'. The petitioner who is 75
years old lady, made an Application No. 1693
on 18.09.2016 for allotment of plot and had
deposited Rs. 1,95,930/- as Registration
amount. The petitioner was found to be
successful and was allotted a plot No. B 440
(measuring 200 Sq. Meter) on 18.02.2017 and
the cost of plot was fixed at Rs. 36 lakhs. The
allotment letter was issued on 18.02.2017,
wherein it was stated that 25% of the total
premium of plot after adjusting registration
amount is to be deposited within 30 days.
1052 INDIAN LAW REPORTS ALLAHABAD SERIES

3. From the record it emerges that the
condition in the allotment letter was that
the allottee while participating has to
deposit Rs. 1,93,320/- as registration
amount and after he/she was found
successful in getting the allotment, the
allottee would be required to pay 25% of
the total premium amount within 30 days
(which was amounting Rs. 7,01,680/-). The
allotment also provided the facility of
instalment, but, it carried an interest of 14%
per
annum
on
remaining
premium
chargeable from the date of allotment,
payable in 12 half yearly installments
alongwith interest on first day of January &
July each year. Rebate of 2% was also
admissible in case the payments due are
made on or before the prescribed date if
there are no arrears of dues.

4. The petitioner instead of
depositing 25% (which was Rs. 7,01,680/-)
of the said total amount, has deposited
around
Rs.
29
lakhs
which
was
approximately 80% of the total amount of
the premium, without seeking benefit of
instalments which was offered in the
allotment letter. So far as the possession of
the plot as per the allotment letter is
concerned, it was to be delivered to the
allottees after payment of 25% of the total
premium of plot (after adjusting earnest
money/registration amount).

5. As per the terms and condition of
the allotment, the petitioner was promised
to get possession by July 2017, but the
same was not given to the petitioner.
Aggrieved with the same, the petitioner
approached
Real
Estate
Regulatory
Authority2 on 05.11.2017 and RERA vide
order
dated
27.02.2018
directed
the
respondent No. 3-UPSIDA for delivering
the possession, however, no order was
passed for the interest on the delayed
period. Hence, the petitioner filed an appeal
No. 100 of 2020 before the Real State
Appellate Tribunal, Lucknow within time
and after admission of appeal, Tribunal
fixed date for hearing, but due to lockdown
in Corona period, it was informed to the
petitioner that the hearing would be
conducted through Video conferencing. It
is claimed that no link was provided in
spite of several requests, hence, the
petitioner could not appear. The matter kept
pending before the RERA Appellate
Authority.

6. On 03.09.2019, an office order was
issued by the UPSIDA, whereby the
allottees were given option if they want to
quit from the project, they can take back
their deposited money with 6 percent
interest per annum, or in case they want to
continue under the scheme they will have
to pay the remaining premium amount and
other charges as per the original allotment
order.

7. It transpires that there was some
issue between UPSIDA and the State
Government and the State Government for
some internal reason did not executed the
Conveyance Deed in favour of UPSIDA, as
a result, they were also not in position to
further execute the Conveyance Deed and
hand over possession to the allottees. It
seems that ultimately the State Government
executed
the
Conveyance
Deed
on
23.01.2021 in favour of UPSIDA, and
hence the delay in executing the sale deed
by UPSIDA in favour of the petitioner was
not on account of respondent No. 3, but
was on account of State Government.

8. It was somewhere in 2022, the
Respondent No. 3 sent a letter informing
that they were in position to execute the
sale deed, but at the same time, they asked
8 All. Smt. Madhubala Jaiswal Vs. Real Estate Appellate Tribunal & Ors.
1053
the petitioner to pay (14% - 2% =12%)
interest on the balance amount from the
date of allotment till the date of payment.

9. Aggrieved by the action that
respondent no. 3 has not handed over the
possession of land in time and thereafter,
asking for heavy interest for the delayed
period, petitioner instituted the present writ
petition
under
Article
226
of
the
Constitution of India seeking for the
following relief:-

"(i). issue a writ, order or
direction in the nature of mandamus
commanding (a) UPSIDA to pay delay
period interest on the amount paid (Rs. 29
lakhs), at the same rate which respondent
no. 3 is charging from allottees in case of
default, from July 2017 (promised date of
possession) till the date of possession.

(b) Appellate Tribunal to hear the
petitioner and decide the matter on merit.
 (c) Appellate Tribunal to provide
all the orders passed in the matter of
petitioner and to provide video link for
hearing.

(ii). issue any other suitable writ,
order or direction as this Hon'ble Court
may deem fit and proper under the
circumstances of the case.

(iii). Award cost of the writ
petition in favour of petitioner.

(iv) issue a writ order or
direction in the nature of mandamus for
directing respondent no. 3 to provide
possession of plot no. B-440.

(v) issue a writ order or direction
in the nature of certiorari for quashing of
order dated 08.06.2022 upto payment of
interest of Rs. 535967 + Rs. 53552 & GST
of Rs. 64762.50."

ARGUMENTS
OF
THE
PETITIONER
10. Shri Pankaj Jaiswal, learned
counsel for the petitioner submitted that
while entertaining the present writ petition,
the Court had taken a serious view and
given show cause to the respondent as to
why the possession of the plot has not been
delivered to the petitioner so far and why
this Court should not direct for payment of
exemplary compensation to the petitioner
for the said default. Order dated 08.07.2022
passed
by
the
coordinate
Bench
is
reproduced herein under:-

 "The petitioner claims to have
deposited Rs. 29 lacs so far under the
allotment order issued in her favour by the
erstwhile owner, i.e., the U.P.S.I.D.C. (now
U.P.S.I.D.A.). The total amount payable
under the allotment was a sum of Rs. 36
lacs approximately. The petitioner was
entitled to possession of the plot upon
deposit of 25 percent of the premium
amount, whereas she has deposited almost
80 percent of the amount, still possession
has not been delivered to her so far. On the
other hand, the respondents have imposed
interest upon the petitioner in respect of the
remaining amount.

We call upon respondent no.3 to
show cause as to why possession of the plot
has not been delivered to the petitioner so
far and why this Court should not direct for
payment of exemplary compensation to the
petitioner for the said default and also
recommend for action being taken against
the person responsible for the delay.
 Sri Ashish Agarwal, learned
counsel appearing on behalf of respondent
no.3 shall communicate the instant order to
the respondent for due compliance.
 List as fresh on 22.7.2022."

11. He further submitted that after
filing of the present writ petition UPSIDA
had taken a decision on 08th June, 2022,
1054 INDIAN LAW REPORTS ALLAHABAD SERIES
which was received by the petitioner on
17.06.2022 and thereafter the same has
been brought before this Court by way of
amendment application. UPSIDA vide
letter dated 08th June, 2022 called upon the
petitioner to complete the formalities for
execution of lease deed. The letter requires
the petitioner to deposit balance premium
amount of Rs. 7,56,452/- and interest
amounting to Rs. 5,35,967/- as well as
lease rent and GST @ 18% apart from
certain other charges.

12. The petitioner submits that she
is ready and willing to take possession of
the plot and will also pay the balance
amount at the time of execution of sale
deed.

13. The submission of the petitioner is
that the respondent no. 3 cannot put the
petitioner to double loss, in as much as,
firstly the possession of land was not
handed over to her in time and secondly the
Authority is penalising her by asking for
heavy interest for delayed payment.

14. The petitioner submitted that the
Respondent No. 3 cannot take benefit of
their own fault. It came to light that the
Respondent No. 3 did not have the
"Conveyance Deed" for the land which was
allotted to the petitioner, hence, they were
not in position to execute the deed. It is not
open for the UPSIDA to charge heavy
interest rate for a period for which they
were on the fault.

ARGUMENT
OF
RESPONDENT NO. 3.

15. Mr. H.N. Singh, learned Senior
Advocate assisted by Shri Ashish Agarwal
learned counsel for the Respondent No. 3
submits that UPSIDA has floated a scheme
of plot allotment in the year 2017 and the
plot was allotted to the petitioner as per the
allotment condition. The petitioner was
supposed to pay 25% of the total premium,
in lieu thereof, the petitioner had paid 80%
of the said amount within a month. Due to
of some internal problem between UPSIDA
and
the
State
Government,
the
"Conveyance Deed" could not be executed
earlier. It was only on 23.01.2021 the
"Convenience Deed" was executed in
favour of the UPSIDA. However, it was on
03.09.2019 when UPSIDA had issued an
order, whereby an option was given, if the
allottees want to withdraw the money the
same will be returned to them with 6%
interest per annum after deducting the
processing charges and the second option
was for those who would like to continue in
the project and are ready to wait, would pay
the allotment premium along with interest
as stated in the allotment letter.

16. Shri H.N. Singh, learned Senior
Counsel has placed reliance on judgment
passed by the Division Bench of this Court
on 17.02.2023 in the matter of Rajaram
Maurya vs. State of U.P. and 3 others3
and submitted that this Court had allowed
the UPSIDA to repay the entire deposits
along with interest at the rate of 8% per
month which was subsequently reduced to
6% by the Supreme Court vide judgement
and order dated 04.07.2023 in the matter of
U.P. Industrial Development Authority
vs. Raja Ram Maurya4, hence the
petitioner can withdraw the said amount
alongwith 6% interest.

17. Learned Senior Counsel
submitted that on the basis of the said
office order, the petitioner opted to
continue under the scheme and as such is
liable to pay interest on the remaining
amount and hence an interest is being
8 All. Smt. Madhubala Jaiswal Vs. Real Estate Appellate Tribunal & Ors.
1055
charged @ 12 % per annum and
accordingly, the respondent on 08.06.2022
called upon the petitioner to deposit the
remaining outstanding premium amount
which was Rs. 7,56,452/- along with
interest of Rs. 5,35,967/- which comes out
to Rs. 12,92,419/- and once this amount is
deposited, then the respondent No. 3UPSIDA would hand over the possession
and execute the sale deed in favour of the
petitioner.

18.

Learned
counsel
for
the
respondent no. 3 further submitted that the
petitioner is bound to pay the interest as per
the provisions of Sections 55, 56 and 73 of
the Contract Act.

ISSUES BEFORE THE COURT

19. Heard the submission advanced
by learned counsel for the parties and
perused the record.

20. The issue that thus arises for
consideration in the instant petition is
whether UPSIDA, which is State within the
meaning of Article 12 of the Constitution
of India, is acting in a fair manner.
Admittedly, in the advertisement, there was
no disclosure that UPSIDA did not have
"Conveyance Deed" in its favour and that
its title was still inchoate. A very relevant
information was thus withheld from the
public at large. This had resulted in large
number of persons applying under the
scheme unaware of the defect in the title of
UPSIDA. Again, it kept accepting money
without apprising the applicants of the
defects in its title. It also failed to deliver
possession even after receipt of more than
25 % of the premium amount, which is
complete breach of the obligation under the
allotment letter.

21. The other question which
arises is whether in the above background
facts, UPSIDA can charge interest from the
allottees on the balance premium amount
even when they had defaulted in delivering
of possession in terms of the allotment
letter. The petitioner has been deprived of
use and enjoyment of the plot, to which she
was entitled to, as soon as she deposited 25
percent of the total amount. Alternatively,
even if, UPSIDA was entitled to realize
interest on the remaining amount, what
should be proper compensation to be
awarded to the petitioner.

22. By the order dated 22.07.2022,
this Court has framed the basic issues
which are as follows :

(i) Whether UPSIDA, which is
State within the meaning of Article 12 of
the Constitution of India is acting in a fair
manner while accepting the money without
disclosing the actual condition of the title?

(ii) Whether UPSIDA has failed
to deliver the possession even after receipt
of 25% of premium amount in complete
breach of the obligation under the allotment
letter?

(iii) Whether there is justification
of charging the interest on the balance
amount inspite of failing to deliver the
possession on deposit of 80% premium
through letter dated 08.06.2022 when the
UPSIDA itself is in default in delivering
the possession in terms of allotment letter ?

(iv) Whether alternatively, even
if, UPSIDA was entitled to realize interest
on the remaining amount, what should be
proper compensation to be awarded to the
petitioner?

ANALYSIS BY THIS COURT
1056 INDIAN LAW REPORTS ALLAHABAD SERIES

23. This Court vide order dated
22.07.2022, has observed that:-

"Before we proceed to decide
these larger issues, we give one opportunity
to
the
Chief
Executive
Officer
of
U.P.S.I.D.A. to revisit the entire matter and
file his personal affidavit on all the aspects
noted above."

24. Thereafter, personal affidavit of
C.E.O., UPSIDA was filed on 03.08.2022,
however, contrary to the order dated
22.07.2022 Respondent No. 3 did not
revisit the entire matter and in response to
the 3rd Issue, the C.E.O. in his personal
affidavit stated that parties are bound with
the agreement and hence they are liable to
pay the interest, even if there was delay in
executing the conveyance deed.

25. The UPSIDA has taken a decision
not to charge penal interest and since the
petitioner has deposited 80% of the
Premium amount, hence, 2% rebate would
be given on the contractual rate of interest
and only demanded interest of Rs.
4,64,406/- on the balance amount @ 12%
per annum (14% - 2% = 12%).

26. Yet another personal affidavit
was filed on 15.09.2022 by C.E.O.-
respondent no. 3 of UPSIDA and it was
brought to the notice that the UPSIDA on
01.08.2019, in it's 33rd meeting, has taken
a decision to grant opportunity to the
allottees to take money back with interest at
the rate of 6%. However, no decision was
taken on Issue no. 3, on the issue of
charging of interest on the balance amount.

27. Thereafter, the respondent No. 3UPSIDA filed another affidavit, wherein,
they took a stand that despite having
deposited entire cost of the land to the State
Government, the State Government failed
to execute the "Conveyance Deed" in
favour of the UPSIDA, as a result,
respondent No. 3 could not hand over the
possession to the allottees or executed the
sale deed in their favour.

28. The allotment letter dated
18.02.2017 by which a plot of 200 Sq.
Meter was allotted in favour of the
petitioner and the petitioner was supposed
to pay 25% of the premium amount of the
plot, clearly stipulates that after payment of
25%
of
the
premium
amount,
the
respondent No. 3 was supposed to hand
over the possession and execute the lease
deed. However, in instant case the
petitioner who is 75 years old lady had
deposited 80% of the total premium
amount, but inspite of that neither the sale
deed was executed nor the possession of
the plot was given by UPSIDA.

29. In the affidavit of UPSIDA it has
been admitted that because of some internal
dispute
between
UPSIDA
and
State
Government, the "Conveyance Deed" for
the said land was not executed by the State
Government till 25.01.2021.

30. Though an option of exit was
given to the petitioner, but she chose to stay
in the project, and tacitly agreed to adhere
the terms of the allotment letter.

31. Therefore, the argument raised by
Respondent No. 3 that the instant issue is
covered by judgment of Division Bench
passed in Writ -C No. 32291 of 2022 is
incorrect, as in that case the plot allotted
was in low lying area and the allottee
wanted a change to a different and better
plots, however the facts of that case was
different from this case. It was not the case
in that scheme, that UPSIDA had no title to
8 All. Smt. Madhubala Jaiswal Vs. Real Estate Appellate Tribunal & Ors.
1057
pass on to the allottees. Since the issue
raised in Writ-C No. 32291 of 2022 is
different from the instant writ petition,
hence the judgment passed by the Division
Bench in that case is not applicable herein
and distinguishable on facts.

ISSUE OF WHETHER ONE CAN
TAKE ADVANTAGE OF ITS OWN
FAULT

32. In this case, now the question
before us is as to whether the respondent
no. 3 can take advantage of their own fault
as they were not even in a position to hand
over the possession. However they are
charging the interest for the period in which
infact respondent no. 3 was in default.

33.

As
per
the
doctrine
of
"commodum ex inijuria sua nemo
habere debet", it is settled law that no
party can take advantage of their own fault.
The Hon'ble Supreme Court in the matter
of M.K. Shah Engineers and Contractors
vs. State of M.P.5 has held as follows:-

"17. No one can be permitted to
take
advantage
of
one's
own
wrong..........A closer scrutiny of clause
3.3.29 clearly suggests that the parties
intended to enter into an arbitration
agreement for deciding all the questions
and disputes arising between them through
arbitration and thereby excluding the
jurisdiction of ordinary civil courts. Such
reference to arbitration is required to be
preceded
by
a
decision
of
the
Superintending Engineer and a challenge
to such decision within 28 days by the party
feeling aggrieved therewith. The steps
preceding the coming into Operating of the
arbitration clause though essential are
capable of being waived and if one party
has by its own conduct or the conduct of
its officials, disabled such preceding steps
being taken, it will be deemed that the
procedural prerequisites were waived. The
party at fault cannot be permitted to set up
the
bar
of
non-performance
of
prerequisite obligation so as to exclude the
applicability
and
Operating
of
the
arbitration clause." (emphasis supplied)

34. In Mrutunjay Pani v. Narmada
Bala Sasmal6, the Hon'ble Supreme Court
observed as under:

 "5.......The same principle is
comprised in the Latin maxim commodum
ex injuria sue nemo habere debet, that is,
convenience cannot accrue to a party from
his own wrong. To put it in other words, no
one can be allowed to benefit from his own
wrongful act."

35. Hon'ble Supreme Court in the
matter of Kusheshwar Prasad Singh vs.
State of Bihar and others7 has held as
follows:-

 "12. .................The appellant is
right in contending that final statement
statement ought to have been issued
immediately
or
in
any
case
within
"reasonable time". The authority cannot
neglect to do that which the law mandates
and requires doing. By not issuing
consequential
final
settlement
under
Section 11(1) of the Act, the authority had
failed to discharge its statutory duty.
Obviously, therefore, the appellant is
justified in urging that such default in
discharge of statutory duty by the
respondents
under
the
Act
cannot
prejudice him. To that extent, therefore, the
grievance of the appellant is well founded.
 13.
..............The
appellant,
therefore, is right in contending that the
authorities cannot be allowed to take undue
1058 INDIAN LAW REPORTS ALLAHABAD SERIES
advantage of their own default in failure to
act in accordance with law and initiate
fresh proceedings.
X X X X

16. It is settled principle of law
that a man cannot be permitted to take
undue and unfair advantage of his own
wrong to gain favourable interpretation of
law. It is sound principle that he who
prevents a thing from being done shall not
avail himself of the non-performance he
has occasioned. To put it differently, "a
wrongdoer ought not to be permitted to
make a profit out of his own wrong."
 (emphasis supplied)

36. In Broom's Legal Maxims (10th
Edn.), p.191 it has been stated as follows:-

"It is a maxim of law, recognised
and established, that no man shall take
advantage of his own wrong; and this
maxim, which is based on elementary
principles, is fully recognised in courts of
law and of equity, and, indeed, admits of
illustration from every branch of legal
procedure."

37. Hon'ble Supreme Court in the
matter of Nirmala Anand vs. Advent
Corporation (Pvt.) Ltd. And others8 has
held that the respondents cannot take
advantage of their own wrong and that
would amount to unfair advantage.

38. Recently Hon'ble Supreme Court
in the matter of Municipal Committee
Katra & Ors vs. Ashwani Kumar9, has
also considered that no one can be
permitted to take undue and unfair
advantage of his own wrong to gain
favourable interpretation of law. It is a
sound principle that he who prevents a
thing from being done shall not avail
himself of the non-performance he has
occasioned. A wrong doer ought not to be
permitted to make profit out of his own
wrong. Relevant para nos. 18 and 19 of the
judgement are being reproduced herein for
ready reference:-

"18. The situation at hand is
squarely covered by the latin maxim 'nullus
commodum capere potest de injuria sua
propria', which means that no man can
take advantage of his own wrong. This
principle was applied by this Court in the
case of Union of India v. Maj. Gen.
Madan Lal Yadav, (1996) 4 SCC 127
observing as below: -
 "28. ...In this behalf, the maxim
nullus commodum capere potest de injuria
sua propria - meaning no man can take
advantage of

his own wrong - squarely stands
in the way of avoidance by the respondent
and he is estopped to plead bar of
limitation contained in Section 123(2). In
Broom's Legal Maxim (10th Edn.) at p. 191
it is stated:

"... it is a maxim of law,
recognised and established, that no man
shall take advantage of his own wrong; and
this maxim, which is

based on elementary principles,
is fully recognised in courts of law and of
equity, and, indeed, admits of illustration
from every branch of legal procedure."
 The reasonableness of the rule
being manifest, we proceed at once to show
its application by reference to decided
cases. It was noted

therein that a man shall not take
advantage of his own wrong to gain the
favourable interpretation of the law. In
support thereof,
 the author has placed reliance on
another maxim frustra legis auxilium
invocat quaerit qui in legem committit. He
8 All. Smt. Madhubala Jaiswal Vs. Real Estate Appellate Tribunal & Ors.
1059
relies on Perry v. Fitzhowe [(1846) 8 QB
757 : 15 LJ QB 239] . At p. 192, it is
 stated that if a man be bound to
appear on a certain day, and before that
day the obligee puts him in prison, the bond
is void. At p. 193, it is stated that "it is
moreover a sound principle that

he who prevents a thing from
being done shall not avail himself of the
non-performance he has occasioned". At p.
195, it is further stated that "a wrong doer
ought not to be permitted to make a

profit out of his own wrong". At
p. 199 it is observed that "the rule applies
to the extent of undoing the advantage
gained where that

can be done and not to the extent
of
taking
away
a
right
previously
possessed".

19. It is beyond cavil of doubt
that no one can be permitted to take undue
and unfair advantage of his own wrong to
gain favourable interpretation of law. It is
a sound principle that he who prevents a
thing from being done shall not avail
himself of the non-performance he has
occasioned. To put it differently, 'a wrong
doer ought not to be permitted to make
profit out of his own wrong'. The conduct
of the respondent-writ petitioner is fully
covered by the aforesaid proposition.

39. Hon'ble Supreme Court in catena
of judgments starting right from M.K.
Shah Engineers (supra), Mrutunjay Pani
(supra),
Kusheshwar
Prasad
Singh
(supra), Nirmala Anand (supra) and
Municipal Committee Katra (supra) has
throughout held that the authorities cannot
be allowed to take undue advantage of their
own default in failure to act in accordance
with law within a reasonable time.

40. In the present case, the undisputed
fact remains that the respondent no. 3UPSIDA allocated the plot to the petitioner
without holding proper title, resulting in a
delay of nearly four years to acquire the
title. This delay was obviously not
attributable to the petitioner but solely due
to the actions and internal issues of
respondent no. 3. Therefore, respondent no.
3 cannot take advantage of the delay or
default that they themselves caused and ask
for interest to be paid for that period.

CONCLUSION

41. The only bone of contention
before the Court is whether the UPSIDA is
entitled to levy interest on the remaining
balance due from the petitioner during the
period in which the delay was attributable
to UPSIDA itself. According to the terms
of the allotment letter, the petitioner was
required to pay 25% of the total premium
amount within 30 days of the allotment,
following which UPSIDA was obligated to
execute the lease deed in favour of the
allottee. In this instance, despite the
petitioner having paid 80% of the premium
amount, UPSIDA failed to execute the
"Conveyance
Deed"
or
hand
over
possession until January 25, 2021, due to
internal
issues
within
UPSIDA.
Consequently,
it
is
unjustifiable
for
UPSIDA to impose an interest rate of 14%,
later reduced to 12%, for the period of
delay, which is solely attributable to
UPSIDA, caused by its own actions. The
14% interest rate was originally stipulated
for instances where the allottee opted for
installment payments which the petitioner
did not opt for. In the interest of justice,
there cannot be a discrepancy in the rate of
interest applied. If UPSIDA offers a 6%
interest rate to individuals, for withdrawing
from the agreement, in all fairness, it
cannot charge 14% or 12% interest from
those who remain committed to the
1060 INDIAN LAW REPORTS ALLAHABAD SERIES
agreement. Moreover, there is no provision
in the allotment letter for charging interest
if the default is on UPSIDA's part.

42. A party cannot be permitted to
"blow hot and cold", "fast and loose" or
"approbate and reprobate" at the same time.
This rule is applied to do equity, however,
it must not be applied in a manner as to
violate the principles of right and good
conscience. Therefore, UPSIDA cannot
take unjust benefit from its own delay and
must rectify the interest rate accordingly.

43. Regarding the interest on the
80%
premium
amount
paid
by
the
petitioner, this matter is currently pending
before the RERA Appellate Authority. The
petitioner is entitled to pursue the issue for
interest or damages for the period during
which the payment was made, and the
property could not be enjoyed by her. This
aspect remains open for adjudication, and
we are not addressing it in this judgement.

DIRECTIONS BY THE COURT

44. In view of the aforementioned
considerations, it is evident that the
respondents cannot capitalize on their own
defaults to the detriment of the petitioner.
The established legal principle that no party
should get benefit for their own wrong
applies in the present case. Accordingly,
respondent No.3, UPSIDA, is directed to
correct the unjust imposition of interest and
to comply with appropriate legal standards.
They may only charge interest @ 6% on
the
outstanding
amount.
Upon
the
petitioner paying the outstanding amount
along with 6% interest rate for the period
from the date of allotment of plot,
respondent no.3 is obligated to execute the
lease
deed
and
complete
all
other
formalities within 2 weeks thereafter.
45. With the above direction, the
instant writ petition is disposed of.

46. No order as to cost.
----------
(2024) 8 ILRA 1060
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.08.2024

BEFORE

THE HON'BLE SHEKHAR B. SARAF, J.
THE HON'BLE KSHITIJ SHAILENDRA, J.

Writ - C No. 22299 of 2024

M/s AM Infratech Proprietorship Firm,
New Delhi ...Petitioner
Versus
DFCCIL & Ors. ...Respondents

Counsel for the Petitioner:
Sri Manu Khare

Counsel for the Respondents:
Sri Vaibhav Tripathi, Sri Ashish Mishra

A. Public Law - Rejection of Tender -
Interpretation of tender document - Scope
of
writ
jurisdiction
with
regard
to
interpretation of the tender documents
and interference by the Court is required
to be minimal and only when this Court
finds an extremely arbitrary action or a
malafide action, the Court would interfere.
(Para 6)

In the present case, Hon'ble Court did not find
any malafide intention by the authorities.
Furthermore, the interpretation being taken by
the respondent authorities appeared to be a
reasonable one, and therefore, this Court did
not replace the said interpretation with its own
opinion. (Para 7) (E-4)

Precedent followed:

Rhetoric
Technologies
Pvt.
Ltd.
Through
Authorized Representative anr. Vs State of U.P.