M.L. Mehta, J.:-- 1. The instant suit is filed by the plaintiff for recovery of a sum of Rs. 48,00,000/- (Rupees Forty Eight Lakhs Only) from the defendant (hereinafter referred to as ‘the DDA’) along with damages to the tune of Rs. 10,00,000/- (Rupees Ten Lakhs Only) and also for declaration that Clause 2(iv) of the terms and conditions of the auction is non-est and void in law. The plaintiff also prays for interest at the rate of 22% on the decreed amount from the date of institution of the suit till the date of realisation of the amount. 2. The plaintiff’s case is that around the first week of March, 1982, they came to know of an auction notice relating to an auction to be conducted by the DDA, Slum Wing, of plots bearing No. 6, 7, 8, 9 and 10 on Asaf Ali Road, each measuring 351.0 sq. mts on March 12, 1982. As per the terms and conditions of the auction, the successful bidder was to pay 25% of the auction bid as earnest money at the fall of the hammer and the balance 75% within 60 days from the date when the successful bidder was intimated about the acceptance of the bid. As per Clause 2(iv) of the said terms and conditions, failure to pay the balance amount within the stipulated time was to result in the earnest money being forfeited by the DDA. The plaintiff submits that terms and conditions of the auction also specified that possession of the plot would be handed over to the auction purchaser on payment of the full amount, after which, the auction purchaser was to erect a building strictly in accordance with the designs or architectural controls drawings (for short ‘control drawings’) as provided by the DDA within a period of two years from taking possession. And that the said control drawings could be obtained by the successful bidder from the DDA on payment of Rs. 100/- (Rupees Hundred Only). 3. The plaintiff participated in the auction and on being declared the highest bidder, deposited Rs. 48,00,000/- (hereinafter referred to as ‘the earnest money’), i.e. 25% of the total bid amount of Rs. 1,92,00,000/- (Rupees One Crore, Ninety Two Lakhs Only). 100/- (Rupees Hundred Only). 3. The plaintiff participated in the auction and on being declared the highest bidder, deposited Rs. 48,00,000/- (hereinafter referred to as ‘the earnest money’), i.e. 25% of the total bid amount of Rs. 1,92,00,000/- (Rupees One Crore, Ninety Two Lakhs Only). And that vide letter dated March 30, 1982, the DDA intimated the plaintiff that they were the successful bidder for plot No. 8 Asaf Ali Road, stating that the balance amount of Rs. 1,44,00,0035/- (Rupees One Crore, Forty Four Lakhs and Thirty Five Only) was to be paid within a period of 60 days, calculated from the March 30, 1982. 4. On receipt of the said letter, the plaintiff authorised their architect, Sh. H.R Malik, to collect the control drawings from the office of the DDA, where he was informed that no spare drawings were available at that time and that the DDA would send the said control drawings on these being available. The plaintiff submits that on a number of occasions, they requested the DDA to provide the control drawings stating that without the said drawings, it was not possible for the plaintiffs to negotiate with prospective purchasers. And that eventually the DDA provided the plaintiff with the control drawings on May 11, 1982.The plaintiff submits that on examination of the control drawings by their architect it was found that the drawings were not prepared in consonance with the building bye-laws framed by the Municipal Corporation of Delhi (for short ‘the MCD’). In furtherance of this submission, the plaintiff submits that the control drawing stipulated that the mezzanine floor was not an immediate floor between two main floors. And that this specification was in violation of Bye-Law 2(53) which reads as under: “Mezzanine floors means an immediate floor between two main floors and not less than 7ft in height from the floor” The plaintiff submits that the said error seriously prejudiced the plaintiff’s dealings with prospective purchasers of flats, shops and godowns at plot No. 8, Asaf Ali Road. 5. The plaintiff submits that on further examination of the control drawings, it was revealed that a part of the writing was erased which is said to have originally formed a part of the note on the right hand side of the Standard design. 5. The plaintiff submits that on further examination of the control drawings, it was revealed that a part of the writing was erased which is said to have originally formed a part of the note on the right hand side of the Standard design. The plaintiff alleges that the said note was not erased at the time of the auction and was later unilaterally erased by the DDA without any notice to the plaintiff. The plaintiff submits that this erasure also prejudiced dealings with prospective purchasers. The plaintiff further submits that the control drawings violated the Master Plan as well as Zonal Development Plans applicable to Delhi. In furtherance of this submission, the plaintiff states that, the permissible Floor Area Ratio (for short ‘F.A.R.’) specified in the control drawings was to the extent of 400, whereas, as per the Master Plan, Zonal Plan of Delhi and the building bye-laws of the MCD, the maximum permissible F.A.R in the commercial zone applicable at Asaf Ali Road is only 300. And that the plaintiff wrote to the Governor, New Delhi vide letter dated May 17, 1982, a copy of which was forwarded to the DDA, elaborating the abovementioned flaws in the said control drawings and the inability of the plaintiff to raise finances for depositing the balance amount owing to the errors in the control drawings. The plaintiff submits that the practice in the trade was that when the plots are auctioned and the earnest money was deposited, the balance amount could thereafter be paid in installments after the successful bidder negotiates with prospective buyers. And that without proper control drawings in accordance with the building bye-laws, such negotiations were not possible. 6. The plaintiff further submits that in the fear of the earnest money being forfeited by the DDA, they filed a suit bearing No. 766 of 1982, seeking a stay against the DDA from forfeiting the said amount. And that in the said suit, the plaintiff undertook to perform its obligations under the contract, provided the DDA supplied them with proper control drawings in accordance with the building bye-laws. The plaintiff submits that this Court issued an ex-parte interim injunction restraining the DDA from forfeiting the earnest amount. And that in the said suit, the plaintiff undertook to perform its obligations under the contract, provided the DDA supplied them with proper control drawings in accordance with the building bye-laws. The plaintiff submits that this Court issued an ex-parte interim injunction restraining the DDA from forfeiting the earnest amount. The plaintiff further submits that instead of fulfilling its obligations under the contract, the DDA issued a notice to the plaintiff on October 18, 1982 seeking to cancel the bid, rescind the contract and forfeit the earnest money in accordance with Clause 2(iv). And that the plaintiff was given fifteen days to reply to the said notice. Thereafter, the plaintiff moved an interim application in suit No. 766 of 1982, seeking an injunction restraining the defendant from cancelling the allotment in favour of the plaintiff. The plaintiff lastly submits that the DDA could not forfeit the entire earnest money since the relevant provision under the terms and conditions of the auction, i.e. clause 2(iv) is not enforceable and is non-est in view of Sections 73 and 74 of the Indian Contract Act. 7. Thus the plaintiff contends that the DDA committed breach of various terms of the auction, which resulted in the loss of reputation and goodwill of the plaintiff. Consequently, the plaintiff submits that the DDA is liable to pay damages to the tune of Rs. 10,00,000/- (Rupees Ten Lakhs Only). The plaintiff further submits that as per Section 53(b) of the Delhi Development Act, 1957 (for short ‘the DDA Act’), a notice was sent to the DDA as well as to the Slum and J.J Department, Jhadewalan Extension on April 13, 1983. And that the DDA replied stating that they did not accept the contentions raised by the plaintiff. 8. In its written statement, the DDA has traced out the history behind the plots on Asaf Ali Road that were put up for auction. The DDA submits that the commercial complex at Asaf Ali Road was developed by the Delhi Improvement Trust before the enactment of the Slum Areas (Improvement and Clearance) Act (for short ‘the Slum Act), 1956. And that the complex was developed as a part of the Delhi Ajmeri Gate Redevelopment Scheme (for short ‘the DAG Scheme’), which was approved in the year 1946. The DDA submits that in the said area, a strip of land measuring approximately 294.50 sq. mts. And that the complex was developed as a part of the Delhi Ajmeri Gate Redevelopment Scheme (for short ‘the DAG Scheme’), which was approved in the year 1946. The DDA submits that in the said area, a strip of land measuring approximately 294.50 sq. mts. between Life Insurance Corporation building and the Hoechst Building could not be developed for commercial purposes as the said area was already built up and there was resistance to clearance operations. And that vide a subsequent notification, the said area was declared a ‘Slum’ under the Slum Act. The area was cleared in the year 1976 after providing alternative arrangement to the residents and in 1977 a redevelopment plan was prepared by the Slum Department under Section 11 of the Slum Act. The said plan was put to operation in the same year which was later revised. As per the revised plan, 10 commercial plots each measuring 351 sq. mts were developed out of which five were put up for auction on March 12, 1982. 9. The DDA submits that said auction was widely advertised in various newspapers in Delhi and that the basic terms and conditions of the auction were mentioned in the advertisements. And that a detailed copy of the terms and conditions was available with the Jr. Town Planner (Slum) Jhandewalan Extension. The DDA submits that these plots were auctioned in order to mobilize funds for improvement of Slums in the walled city and that the auction proceeds were credited to the account of the Slum Department to be put to use for the benefit of the weaker sections. The DDA further submits that all the terms and conditions including architectural control drawings and the layout plan of the complex were explained before the auction and exhibited through charts and drawings in the auction hall. 10. The DDA submits that the plaintiff had participated in the bid after having full knowledge of the terms and conditions of the auction. And that on winning the said auction, the plaintiff had to deposit the full amount by May 29, 1982. The DDA submits that the plaintiffs, with a view to buy some time, started a series of correspondence with the department, raising frivolous issues regarding the control drawings. And that on winning the said auction, the plaintiff had to deposit the full amount by May 29, 1982. The DDA submits that the plaintiffs, with a view to buy some time, started a series of correspondence with the department, raising frivolous issues regarding the control drawings. It submits that after participating in the bid with the full knowledge of the terms and conditions of the auction as well as seeing the control drawings in the auction hall, the plaintiff could not escape from its contractual obligations. 11. The DDA further submits that the present suit is barred under Order 2 Rule 2(3) of the Civil Procedure Code (for short ‘the Code’) since the plaintiffs have already instituted suit No. 766/1982 on the same cause of action. The DDA submits that the plaintiff having failed to sue for the relief in that suit is trying to obtain the said relief in the present suit. 12. The DDA further submits that the parties were governed strictly by the terms and conditions of the sale by auction. It also denies that there exists a trade practice in which after payment of the earnest money, subsequent installments were payable by the plaintiff only after the plaintiff successfully negotiates with prospective purchases of the flats or shops or godowns in the plot. The DDA further denies that the control drawings ought to be in consonance with the building bye-laws of the MCD. The DDA also relies on the overriding power of the Slum Department over the Master Plan and the DDA Act as provided under Section 53 of the DDA Act as well as Section 39 of the Slums Act. It submits that the Slum Act is a self-contained Code for execution of Slum Redevelopment Schemes and independent of all other laws. The DDA further submits that in light of the paramount public interest underlying the Slums Act, clause 2(iv), that provides for a time bound payment, is void in view of Sections 73 and 74 of the Contract Act. 13. Vide order dated August 8, 1983 an ex-parte interim injunction was passed against the DDA restraining them from forfeiting the earnest money. Subsequently vide order dated February 19, 1985, the said injunction was vacated as the counsel for the plaintiff did not press his application under Order XXXIX Rule 3 of the Code. 14. 13. Vide order dated August 8, 1983 an ex-parte interim injunction was passed against the DDA restraining them from forfeiting the earnest money. Subsequently vide order dated February 19, 1985, the said injunction was vacated as the counsel for the plaintiff did not press his application under Order XXXIX Rule 3 of the Code. 14. Vide order dated December 01, 1983, the following issues were framed for trial: 1. Whether the plaint has been signed, verified and instituted by a duly authorised person? OPP 2. Whether the present suit is barred under Order II Rule 2 of the Code of Civil Procedure? OPD 3. Whether the present suit is not maintainable as alleged in the preliminary objections? OPD 4. Whether plaintiff has waived its right to sue as alleged in para 3 of the preliminary objections in written statement? OPD 5. What were the terms and conditions for the auction of the plot in suit held on 12th March, 1982?OPP 6. Whether plaintiff has been ready and willing to perform the various terms and conditions of the auction? OPP 7. Whether the architectural control drawings were not exhibited and/or furnished as per requirement of the terms and conditions of the auction as contained in Annexure A to the plaint? OPP 8. Whether any erasure referred to in para 15 of the plaint was unilaterally made by the defendant after the auction? If so, to what effect? OPP 9. Whether the architectural control drawings must necessarily conform to the municipal bye-laws, master plan, zonal plan, Delhi Development Act or the building bye-laws thereunder? OPP OPD 10. Whether there is any trade practice of making payment of balance auction money by instalments dependent on the plaintiff negotiating with its prospective purchaser? OPP 11. Whether the plea covered by issue No. 10 is not contrary to the terms and conditions of the auction and is available to the plaintiff? OPP 12. Whether defendant violated any of the terms and conditions of the auction? OPP 13. Whether clause 2(iv) of the terms and conditions detailed in Annexure A to the plaint is not enforceable? OPP 14. Whether defendant is entitled to forfeit the sum of Rs. 48,00,000/- or any other sum? 15. Whether plaintiff is entitled to damages? If so, to what amount? 16. Whether plaintiff is entitled to interest? If so, at what rate and to what amount? 17. Relief. 15. OPP 14. Whether defendant is entitled to forfeit the sum of Rs. 48,00,000/- or any other sum? 15. Whether plaintiff is entitled to damages? If so, to what amount? 16. Whether plaintiff is entitled to interest? If so, at what rate and to what amount? 17. Relief. 15. I have heard the Ld. Counsel for the plaintiff and the Ld. Senior Counsel for the defendant and have perused through the documents placed on record. Issue-wise findings are as under: Issue No. 1 16. The plaint is signed by Sh. D.R Gupta, who is Director and the Principal Officer of the plaintiff company. His statement was recorded vide order dated March 18, 1993 which is produced as under: “I have signed and verified the plaint in the present suit and have also instituted the suit on behalf of the plaintiff company. I had been duly authorised in this behalf through a resolution of the Board of Directors of the plaintiff company passed in a meeting held on 28.6 1983. A true copy of the resolution is Ex. PW1/1. I have brought the original minutes book regarding the minutes of the meeting of the Board of Directors of the plaintiff company. The resolution is duly recorded in minutes book of the plaintiff company.” An extract from the minutes of the meeting of the Board Resolution authorizing Sh. D.R Gupta to institute the present suit is placed on record and is exhibited as Ex. PW1/1. Though the said document has been denied by the defendant, the counsel for the defendant did not cross examine Sh. D.R Gupta on the said document. Further vide order dated April 23, 1992, the counsel for the defendant stated that he did not have any evidence to lead in rebuttal on the first issue. Thus I find that the plaint was duly verified, signed and filed by a competent person. This issue is decided in favour of the plaintiff. Issues No. 2 and 3: 17. Since these two issues address the preliminary objection raised by the defendant, they shall be dealt with together. The Ld. Senior Counsel for the defendant submits that the present suit is barred under Order II Rule 2(3). This issue is decided in favour of the plaintiff. Issues No. 2 and 3: 17. Since these two issues address the preliminary objection raised by the defendant, they shall be dealt with together. The Ld. Senior Counsel for the defendant submits that the present suit is barred under Order II Rule 2(3). It is his submission that the cause of action in the present suit and the cause of action in the suit instituted previously i.e. Suit No. 766/1982 are the same and that the plaintiff, having failed to claim all the appropriate reliefs in the first suit, cannot now seek in the present suit. Relying on the judgment of the Privy Council in Mohammad Khalil Khan and Ors. v. Mahbub Ali Mian and Ors., AIR (36) 1949 PC 78 the Ld. Senior Counsel argued that although the reliefs prayed for in the present suit and in Suit No. 766/1982 are different, it would not necessarily mean that the cause of action in both the suits are different. The relevant portion of the judgment is as under: “61. The principles laid down in the cases thus far discussed may be thus summarized: ..................... ..................... (5) The cause of action has no relation whatsoever to the defence that may be set up by the defendant nor does it depend upon the character of the relief prayed by the plaintiff. It refers…to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour.” (emphasis supplied) 18. The plaint of Suit No. 766/1982 is placed on record as an un-exhibited document. A reading of the plaint reveals that the grievance of the plaintiff was with respect to the DDA’s failure to supply proper control drawings as per the building bye-laws of the MCD. The said plaint also specifies that the plaintiff is willing to fulfill its obligations under the contract, i.e. pay the balance amount, provided the DDA supplied them with the proper control drawings. The plaint also discloses that cause of action for Suit No. 766/1982 arose when the DDA sent the letter dated March 30, 1982, calling upon the plaintiff to deposit the balance amount within the stipulated time frame, and that failure to deposit the said amount would result in the earnest money being forfeited. The plaint also discloses that cause of action for Suit No. 766/1982 arose when the DDA sent the letter dated March 30, 1982, calling upon the plaintiff to deposit the balance amount within the stipulated time frame, and that failure to deposit the said amount would result in the earnest money being forfeited. One of the reliefs in the prayer clause is for the direction to DDA to provide the plaintiff with proper control drawings. 19. The plaint in the present suit however discloses that due to the failure of the DDA to provide the proper control drawings, the said suit was filed i.e. Suit No. 993/1983. In the present suit, the plaintiffs are seeking to cancel the contract entered into between them and the DDA and pray for refund of the earnest money. The plaint specifies that the cause of action for the present suit arose when the plaintiff sent a notice dated April 13, 1983 to the DDA, stating that the DDA has committed breach of the contract and has failed to carry out its obligations with regard to supply of the control drawings within a proper time and in accordance with the building bye-laws. Consequently, the plaintiff claims that the contract entered into with the DDA is null and void and thus the DDA is liable to return the earnest money and also compensate the plaintiff with damages to the tune of Rs. 10,00,000/-. And that when the defendants replied to the said notice, denying all the contentions, the plaintiff filed the present suit. 20. On a perusal of both the suits, it is clear to me that the plaintiff is trying to obtain a more appropriate relief in the latter suit. In Suit No. 766/1982, the plaintiff clearly has the intention to fulfill its obligations under the contract provided that proper control drawings were provided by the DDA. Whereas in the present suit, the plaintiff is seeking to terminate the contract claiming breach on the part of the DDA when they failed to provide the plaintiff with the proper control drawings. 21. Although both the suits pertain to the same transaction, two separate causes of action have arisen based on which the plaintiff claimed for two separate reliefs. The Madras High Court in the case of Arunachalam Pillai v. M. Velamma And Ors. 21. Although both the suits pertain to the same transaction, two separate causes of action have arisen based on which the plaintiff claimed for two separate reliefs. The Madras High Court in the case of Arunachalam Pillai v. M. Velamma And Ors. (1967) 2 MLJ 490 observed as under: “Order 2, Rule 2 does not require that when a transaction gives rise to several causes of action, the plaintiff must combine all the causes of action in one suit and if necessary base his claim alternatively on them in the same suit. The requirement of the rule is that where there is a cause of action, the plaintiff cannot split, the cause of action into parts and claim relief in parts by several actions. The principle of Order 2, Rule 2, Civil Procedure Code, is enunciated by the Judicial Committee in Payana v. Pona Lana Palaniappa (1914) 41 L.A. 142, thus: the rule is directed to securing the exhaustion of the relief in respect of a cause of action, and not to the inclusion in one and the same action, of different causes of action, even though they arise from the same transaction. ............................. Rajagopala Ayyangar, J., as he then was, of this Court adopted these observations in Rangaswami Goundan v. Rangai Goundan (1955) 1 M.L.J. The learned Judge observes referring to Sub-clause (3) of Order 2, Rule 2. It does not apply to a case where a party is entitled to only one out of several reliefs and where he cannot have all of them simultaneously.” (emphasis supplied) 22. Applying the observation of the Court in the Arunachalam Pillai case (supra) to the present case, both the reliefs claimed under Suit No. 766/1982 and in the present suit could not have been made simultaneously. In the former case, the plaintiff’s relief was to direct the DDA to provide them with proper control drawings, while in the present suit, the plaintiff seeks to terminate the auction and for refund of the earnest money. Although the transaction in both the suits is the same, the causes of action are different and thus, the present suit would not be barred under Order II Rule 2(3) of the Code. Issues No. 2 and 3 are decided against the defendant. Issue No. 4 23. The burden to prove this issue lies on the DDA. Although the transaction in both the suits is the same, the causes of action are different and thus, the present suit would not be barred under Order II Rule 2(3) of the Code. Issues No. 2 and 3 are decided against the defendant. Issue No. 4 23. The burden to prove this issue lies on the DDA. The DDA submits that the plaintiff had full knowledge of the terms and conditions stipulated under the auction before depositing the earnest money due to which, the plaintiff has waived the right to sue for refund of the earnest money. However, on an examination of the terms and conditions under the auction, there is nothing to suggest that by accepting the said terms and conditions, the plaintiff has waived its right to sue for refund of the earnest money. Further, any such submission made by the DDA is squarely hit by Section 28 of the Contract Act which makes agreements in restraint of legal proceedings void. Even if the plaintiff had entered into the contract with the full knowledge of all the terms and conditions, it cannot be precluded from enforcing its rights under the said contract. Issue No. 4 is decided against the DDA. Issues No. 5 and 6: 24. Issue No. 5 relates to the various terms and conditions stipulated under the auction and Issue 6 deals with whether the plaintiff was ready and willing to perform its obligations under the auction. 25. At this juncture I find it pertinent to refer to the relevant terms and conditions stipulated under the auction, which have been reproduced as under: “2. BIDDING AT AUCTION AND SUBMISSION OF APPLICATION ..................... (ii) The highest bid shall, at the fall of the hammer, pay the Delhi Development Authority (Slum Wing), through the officer conducting the auction, 25% of the bid amount as earnest money either in cash or by Bank Demand Draft in favour of Director (Slum), Delhi Development Authority. If the earnest money is not paid, the auction held in respect of that plot will be cancelled. ..................... (iv) In case of default, breach or non-compliance of any terms and conditions of the auction or failure to take over the possession of the plot when asked to do so or misrepresentation by the bidder and/or intending purchaser, the earnest money shall be forfeited. ..................... ..................... ..................... (iv) In case of default, breach or non-compliance of any terms and conditions of the auction or failure to take over the possession of the plot when asked to do so or misrepresentation by the bidder and/or intending purchaser, the earnest money shall be forfeited. ..................... ..................... (vi) When the bid is accepted by the D.D.A, the intending purchaser shall within three months from the date of acceptance of the bid or within 60 days from the date informing the intending purchaser of the acceptance of the bid by registered letter, whichever is earlier, pay to the Director (Slum), Delhi Development Authority the balance 75% amount of the bid in cash or by Bank Draft. ..................... ..................... 6. APPROVAL OF DRAWINGS: Architectural control drawings have been prepared separately for each plot. These would also be exhibited at the time of auction. The successful bidder shall purchase the said control drawings from the Delhi Development Authority (Slum Wing) on payment of Rs. 100/- per plot. These drawings are sufficiently explanatory by way of text to formulate proposals for submission to the DDA for approval in accordance with building bye-laws. The drawings for approval should be submitted through a qualified architect of repute. All the mandatory controls are to be observed by the plot-owner and his architect. The owner has also to reserve a space for an electric transformer within the building in consultation with the Delhi Electric Supply Undertaking.” 26. Having gone through the relevant terms and conditions under the auction, I shall now proceed to decide Issue No. 6 which addresses as to whether the plaintiff was ready and willing to fulfill its obligations under the said auction. Although the plaintiff has fulfilled one part of the terms and conditions of the auction i.e. payment of the earnest money, being 25% of the total amount, at the time of the bid, it has not fulfilled the rest of its obligations under the agreement. As stipulated under clause 2(vi) of the terms and conditions of the auction, payment of the rest 75% balance amount was to be made within a period of 60 days. The plaintiff has failed to make the said payment, raising certain objections with regard to the correctness of the control drawings, all of which are outside the ambit of the terms of contract. The plaintiff has failed to make the said payment, raising certain objections with regard to the correctness of the control drawings, all of which are outside the ambit of the terms of contract. By raising all these objections the plaintiff was trying to gain time as also to come out of the contract. Thus the plaintiff was not ready and willing to fulfill its obligations under the terms and conditions of the auction. Issues No. 5 and 6 are decided against the plaintiff accordingly. Issue No. 7 27. This issue decides as to whether the DDA exhibited the control drawings and supplied the said drawings to the plaintiffs as per the terms stipulated under the auction. Clause 6 of the terms and conditions of the auction provides that the control drawings would be exhibited at the time of the auction. The plaintiff contends that the control drawings were not exhibited at the time of the auction. The plaintiff however has not placed any document on record in proof of their contention. Further, a reading of the plaint reveals that the plaintiff themselves admit that control drawings were exhibited at the time of the auction. In furtherance of this observation, I find it pertinent to refer to paragraph 15 of the plaint. The relevant portion is as under: “15. A look at the plans (control drawings) would also reveal that a part of the writing has been erased which originally formed a part of the note on the right hand side of the so-called Standard Design which is above the writing “Standard Design of Commercial Plots at Asif Ali Road”. The erased portion was originally included as Note No. 2 in the said Design. It may be stated that this Note was not originally erased at the time of the auction and has been unilaterally erased without reference to the Company (plaintiff) and without any notice of it.” (emphasis supplied) On a bare reading of the said paragraph, it is clear to me that the plaintiff was comparing the control drawings supplied to it after the auction and the control drawings exhibited at the time of the auction. The original control drawings which were exhibited contained Note No. 2 whereas the control drawings provided to the plaintiff did not contain the said Note, which the plaintiff alleges to have been unilaterally erased by the DDA. 28. The original control drawings which were exhibited contained Note No. 2 whereas the control drawings provided to the plaintiff did not contain the said Note, which the plaintiff alleges to have been unilaterally erased by the DDA. 28. The plaintiff further contends that the control drawings were not furnished as per the requirement under the terms and conditions of the auction. Revisiting Clause 6 of the terms and conditions, it is seen that the control drawings would be furnished by the DDA to the successful bidder on payment of Rs. 100/-. The plaintiff, vide paragraph 12 of the plaint admits to paying Rs. 100/- on April 14, 1982 to cover the expenses for the control drawings. Thus I find that the DDA duly exhibited and also supplied the control drawings as per the terms and conditions of the auction. This issue is decided in favour of the DDA. Issue No. 8 29. The burden to prove this issue lies on the plaintiff. The plaintiff contends that the DDA unilaterally erased a portion of the control drawings being ‘Note No. 2’ just above the writing “Standard Design of Commercial Plots at Asif Ali Road”. The plaintiff alleges that Note No. 2 which formed a part of the control drawings that were exhibited at the time of the auction, did not appear in the drawings provided to them. A copy of the control drawing is placed on record as Ex P-13. The said drawing only specifies Note No. 1. Another copy of the control drawing is placed on record but shows no ‘Note’ above the writing “Standard Design of Commercial Plots at Asif Ali Road”. On a close examination of both these drawings, a stamp on the corner reveals that the said drawings were sold to the plaintiff on April 14, 1982. However, the plaintiff has failed to produce a copy of the control drawings that were exhibited at the auction. In the absence of the said document, the plaintiff has failed to prove this issue. In any case, the plaintiff has failed to state what was that note and what prejudice was caused to it. Issue No. 8 is decided accordingly. Issues No. 9 and 12: 30. Issue No. 9 relates to whether the control drawings should conform to the Master Plan, Zonal Plan and the building bye-laws thereunder. In any case, the plaintiff has failed to state what was that note and what prejudice was caused to it. Issue No. 8 is decided accordingly. Issues No. 9 and 12: 30. Issue No. 9 relates to whether the control drawings should conform to the Master Plan, Zonal Plan and the building bye-laws thereunder. The plaintiff’s main contention is that the said control drawings did not conform to the building bye-laws. In furtherance of the said contention, the plaintiff referred to the FAR specified in the control drawings, stating that the maximum FAR provided is 400, while as per The Delhi Municipal Corporation (Building) Bye-Laws, 1959, the permitted FAR should not exceed 300. Further, the plaintiff submits that control drawings were also in violation of Bye-law 2(53) which relates to the height of the mezzanine floor. On the contrary, the DDA refers to Condition No. 3 of the auction notice: “3. The Auction Purchaser shall have to construct the building on the plot strictly in accordance with the building design/controls to be provided by the Slum Department/D.D.A” The auction notice is placed on record as Ex D-1. The auction notice also specifies that the FAR allowed is 400. 31. The DDA contends that plot No. 8 on Asaf Ali Road that was auctioned by the Slum Department on March 12, 1982 was part of a redevelopment plan prepared by the said department under Section 11 of the Slum Act and that Section 53 of the DDA Act and Section 39 of the Slum Act, gave the competent authority overriding powers for the purpose of redevelopment of the Slum Area and all other operations for improvement of slums. 32. At this juncture, it is also important to consider the Notification dated April 10, 1957, which is placed on record as Ex. D-5. This Notification is issued under Sec. 3 of the Slums Act, stipulating the following: “NOTIFICATION NEW DELHI, 10TH April 1957 S.R.O. 1252. Whereas I, G. Mukharjea, Secretary, Delhi Development (Provisional) Authority and Competent Authority under the Slum Areas (improvement and Clearance) Act, 1956, am satisfied that the buildings in the areas mentioned in the Schedule below are unfit for human habitation or are detrimental to safety, health or morals. Now, therefore, I, under the powers vested in me under Section 3 of the said Act, declare the areas mentioned in the Schedule below to be Slum Areas. Now, therefore, I, under the powers vested in me under Section 3 of the said Act, declare the areas mentioned in the Schedule below to be Slum Areas. SCHEDULE Areas within the limits of the Delhi Municipal Committee (a) Wards Nos. I to VI (b) Wards No. VII to IX, excluding the areas described below: i. GB Road North - Road from Khari Baoli to Kutab Road West - Boundaries of the Arabic College and Railway South - Ajmeri Gate East - Gali Ghosian and a street in its continuation ii. Delhi - Ajmeri Gate Scheme between Asaf Ali Road and Zer-e-Fasil Road: North - Zer-e-Fasil Road West - Road to Ajmeri Gate South - Asaf Ali Road East - Road along the Delhi Gate” (emphasis supplied) 33. A copy of the map showing the plots in question as well as the excluded area as mentioned above is placed on record. From a combined perusal of the abovementioned documents i.e. the map and the notification at Ex D-5, it is apparent that the Notification declares Ward No. VII of the Municipal Area to be a slum area, but excluding therefrom, certain areas which are situated between Asaf Ali Road to the south and Zere-i-Fazil Road to the north, which is compendiously referred to as the Delhi Ajmeri Gate Scheme Area. However, the suit property, viz. plot No. 8 is situated to the north of Zere-i-Fazil Road in Chunk No. 7 of Kucha Pati Ram. It is essentially carved out of property No. 3345. This makes it amply clear that the suit property is not covered by the exclusion clause mentioned in placitum (ii) of the said Notification and is a part and parcel of Ward No. VII, which has been declared to be a Slum Area. 34. It is also apparent to me that under the Act, the competent authority could redevelop this area and carry out or cause to be carried out, any building activity there, without any restrictions imposed under the aegis of the D.D.A. Act or the building bye-laws, including restrictions in respect of FAR, promulgated thereunder. In this regard, the relevant provisions are as follows: Section 39 of the Slums Act: “39. In this regard, the relevant provisions are as follows: Section 39 of the Slums Act: “39. Act to override other laws -- The provisions of this Act and the rules made thereunder shall have effect not withstanding anything inconsistent therewith contained in any other law.” Section 53 of the D.D.A. Act: “53. Effect of other laws -- Nothing in this Act shall affect the operation of the Slum Areas (Improvement and Clearance) Act, 1956.” 35. Therefore, even if the plaintiff’s averment that the FAR for Ward No. VII (Zone A-13) as fixed by the MCD to be 300, was to be considered, the same is not binding on the competent authority under the Slums Act. And the competent Authority under the Slums Act is empowered to declare an FAR as it deems fit, in light of the overriding effect of the Slums Act. Thus I find that the architectural control drawings conform to the provisions under law in as much as they are not subject to the municipal bye-laws, master plan, zonal plan, Delhi Development Act or the building bye-laws but are wholly under the authority provided under the Slums Act. Issue No. 9 is decided against the plaintiff. 36. Having decided Issue Nos. 7 and 9 against the plaintiff, I shall now proceed to decide Issue No. 12 whereby the plaintiff contends that the DDA committed breach of the terms and conditions of the auction when proper control drawings were not provided to the plaintiff. In light of the observations made in Issue Nos. 7 and 9, the DDA was found to have provided valid control drawings to the plaintiffs. Consequently, Issue No. 12 is also decided against the plaintiff. Issue Nos. 10 and 11: 37. These two issues, being connected shall be decided together. The plaintiff claims that as per trade practice, the payment of the balance amount was to be made in instalments after negotiations with prospective buyers. However, the DDA argues that the parties are strictly bound by the terms and conditions of the auction. I am in agreement with the submission of the DDA. Clause 2(vi) of the terms and conditions of the auction clearly stipulates that on acceptance of the bid, the balance amount should be paid by the auction purchaser within a period of 60 days from the date when the auction purchaser is intimated regarding the said acceptance. I am in agreement with the submission of the DDA. Clause 2(vi) of the terms and conditions of the auction clearly stipulates that on acceptance of the bid, the balance amount should be paid by the auction purchaser within a period of 60 days from the date when the auction purchaser is intimated regarding the said acceptance. It is seen that there is no provision under the terms and conditions of the auction whereby the plaintiff is allowed to pay the balance amount in instalments depending on negotiations with prospective purchasers. It is also pertinent to note that the auction notice also has not provided for payment through instalments as contended by the plaintiff. 38. When the plaintiff opted to participate in the auction and when the earnest money was deposited by them, the plaintiff agreed to all the terms and conditions of the auction including the mode of payment as provided under Clause 2(vi). Further, no document has been placed on record showing that the trade practice as contended by the plaintiff was in existence at the time of the auction and that the said practice would prevail over the terms and conditions under the auction. Thus Issues No. 10 and 11 are decided against the plaintiff. Issues No. 13 and 14: 39. These issues relate to the right of the DDA to forfeit the earnest money as provided under Clause 2(iv) of the terms and conditions of the auction. The Ld. Counsel for the plaintiff contends that Clause 2(iv) is not enforceable and is non-est in view of Sections 73 and 74 of the Contract Act. On the contrary, the Ld. Senior Counsel for the DDA contends that this suit is covered by Section 65 of the Contract Act and that Sections 73 and 74 have no application to the present suit. 40. At this juncture, I find it pertinent to refer to a recent judgment of the Apex Court in Satish Batra v. Sudhir Rawal, 2013 (1) SCC 345 . In this case, the Supreme Court held that a seller would be entitled to forfeiture of the earnest amount if the purchaser fails to perform his obligations under the contract. The relevant portions of the judgment are as under: “17. Law is, therefore, clear that to justify the forfeiture of advance money being part of ‘earnest money’ the terms of the contract should be clear and explicit. The relevant portions of the judgment are as under: “17. Law is, therefore, clear that to justify the forfeiture of advance money being part of ‘earnest money’ the terms of the contract should be clear and explicit. Earnest money is paid or given at the time when the contract is entered into and, as a pledge for its due performance by the depositor to be forfeited in case of non-performance, by the depositor. There can be converse situation also that if the seller fails to perform the contract the purchaser can also get the double the amount, if it is so stipulated. It is also the law that part payment of purchase price cannot be forfeited unless it is a guarantee for the due performance of the contract. In other words, if the payment is made only towards part payment of consideration and not intended as earnest money then the forfeiture clause will not apply.” (emphasis supplied) 41. Further, in the case of Shree Hanuman Cotton Mills and Ors. v. Tata Air Craft Limited, 1969 (3) SCC 522 , the Apex Court examined the principles relating to ‘earnest money’. It was observed that: “25. From a review of the decisions cited above, the following principles emerge regarding “earnest”: (1) It must be given at the moment at which the contract is concluded. (2) It represents a guarantee that the contract will be fulfilled or, in other words, ‘earnest’ is given to bind the contract. (3) It is part of the purchase price when the transaction is carried out (4) It is forfeited when the transaction fall through by reason of the default or failure of the purchaser (5) Unless there is anything on the contrary in the terms of the contract, on default committed by the buyer, the seller is entitled to forfeit the earnest money.” (emphasis supplied) 42. I find that the observations of the Supreme Court in the Satish Batra Case (supra) and the Shree Hanuman Cotton Mills Case (supra) are squarely applicable to the present suit. Under the terms and conditions of the auction, there is a clear stipulation under Clause 2(iv) that the earnest money would be forfeited in case of any breach of non-compliance. I find that the observations of the Supreme Court in the Satish Batra Case (supra) and the Shree Hanuman Cotton Mills Case (supra) are squarely applicable to the present suit. Under the terms and conditions of the auction, there is a clear stipulation under Clause 2(iv) that the earnest money would be forfeited in case of any breach of non-compliance. For brevity, Clause 2(iv) is reproduced as under: “(iv) In case of default, breach or non-compliance of any terms and conditions of the auction or failure to take over the possession of the plot when asked to do so or misrepresentation by the bidder and/or intending purchaser, the earnest money shall be forfeited.” In light of the above, I find that the contention of the plaintiff that Clause 2(iv) is not enforceable by virtue of Sections 73 and 74 of the Contract Act does not have any merit. The amount deposited by the plaintiff at the fall of the hammer was the earnest money and not a part payment. Thus Issues No. 13 and 14 are decided against the plaintiff. Issue No. 15: 43. The plaintiff claims that due to breach of the contract by the DDA in not supplying proper control drawings, a number of negotiations of the plaintiff with prospective purchasers failed and that resulted in the loss of the plaintiff’s goodwill and reputation. In light of the said loss, the plaintiff claims damages to the tune of Rs. 10,00,000/-. The plaintiff has not placed on record any document to prove that they have suffered any loss which would enable them to claim damages. Further, as observed in Issue No. 12, the DDA did not violate any terms and conditions of the auction. Having failed to prove any violation and loss of reputation and goodwill of the plaintiff, Issue No. 15 is decided against them. Issue No. 16 44. Since the plaintiff is not entitled to refund of the earnest money and damages, this Issue which relates to interest no longer survives. 17. Relief: In light of the facts of the case and the principles of law applicable to them, suit is hereby stands dismissed. No order as to costs.