Madhya Pradesh High Court
Smt.Monika Bhadoria vs M.P.Housingh And Infrastructure ... on 10 December, 2014
W.P.8363/11 1
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
JUSTICE SUJOY PAUL.
Writ Petition No. 8363/11
Smt. Monika Bhadoria
Vs.
M.P.Housing & Infrastructure Development Board & Ors.
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Shri Anil Sharma, Advocate for the petitioner.
Shri Anil Mishra, Advocate for the respondents.
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ORDER
( 10 / 12 /2014) The petitioner has invoked the jurisdiction of this Court under Section 226 of the Constitution with a prayer to set aside letters dated 13.9.2011, 29.9.2011, 9.10.2011 and 26.11.2011.
2. The respondent-Board issued an advertisement inviting applications for booking house in 20 HIG Sector F. The petitioner submitted her application with requisite documents. The applications were required to be filed with registration fees till 30.8.2011. The petitioner prepared a bankers cheque of Rs.2,75,000/- on 27.8.2011. The same was deposited before the third respondent on 29.8.2011 with challan. Copy of challan is filed as Annexure P-3, whereas application form is filed as Annexure P-4. It is the case of the petitioner that as per the procedure prevailing in the bank, demand draft is issued only for outstation transactions and for local transactions/business, bankers cheques are being issued. The petitioner, accordingly prepared the bankers cheque and deposited it along with her application. The petitioner received impugned letters wherein it is stated by the Board that petitioner's application is received in time but the amount is realized after the cut off date. It is contended by the respondents that the bankers cheque was encashed/realized after the cut off date, i.e., 30.8.2011 and, therefore, petitioner has not fulfilled the requirement of the advertisement.
3. Shri Anil Sharma, learned counsel for the petitioner W.P.8363/11 2 submits that the action of the respondents is bad in law. The petitioners intention to deposit the amount cannot be doubted. The amount is realized within few hours from the cut off date. The bankers cheqaue is issued prior to the cut off date and, therefore, the stand of the respondents is hyper technical in nature.
4 Per contra, Shri Anil Mishra, learned counsel for the respondents supported the order on the basis of condition of advertisement wherein it is mentioned that the applicant must deposit a demand draft.
5. I have heard the learned counsel for the parties and perused the record.
6. It is not in dispute between the parties that the date of bankers cheque is prior in time than the cut off date. The only problem is that the cheque was realized after the cut off date. No doubt, the respondents in their advertisement have stated that the application must be filed along with demand draft and petitioner has filed it along with a bankers cheque.
7. In the opinion of this Court, the petitioner has established her bonafides. There is a difference between a cheque and demand draft. In AIR 1992 MP 148 (Raghavendrasingh Bhadoria v. State Bank of Indore and others), Indore Bench of this Court has considered the Bombay High judgment, reported in AIR 1976 BOMBAY 185 (Tukaram Bapuji Nikam v. Belgaum Bank Ltd.).
8. In view of aforesaid, it is clear that if the demand draft is deposited or delivered, the purchaser is not entitled to ask the issuing bank to stop payment of the draft to the payee and it can be done only with the consent of the payee. In the special facts of this case, it is apparent that petitioner's intention and bonafides are clear to pay the requisite amount before the cut off date. She paid it by way of bankers cheque. Although there is a delay in remittance of amount in favour of the Board, no prejudice is caused to the Board because of small amount of delay of few hours/days. This is not in dispute that the amount flowing from bankers cheque is transferred in the account of respondent bank.
W.P.8363/11 3In aforesaid factual backdrop, in my view, the respondents have taken a hyper technical approach in depriving the petitioner on the ground that payment is actually received after the cut off date.
9. As analyzed above, the action of respondents in not accepting the petitioner's application because of deficiency of payment aforesaid cannot be upheld. Resultantly, the impugned orders are set aside. The respondents are directed to pass necessary orders in favour of the petitioner expeditiously, preferably within 30 days. Petition is allowed. It is made clear that this Court has not expressed any opinion on the merits of the case. It will be open for the respondents to examine the eligibility of the petitioner on other aspects except the aspect of delayed payment.
(Sujoy Paul) Judge vv