Punjab-Haryana High Court
Haryana Urban Development Authority vs Anita Through Manjeet Singh on 19 March, 2012
Author: Tejinder Singh Dhindsa
Bench: Tejinder Singh Dhindsa
RSA No.1079 of 2012 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.1079 of 2012 (O&M)
Date of decision:19.03.2012
Haryana Urban Development Authority
......Appellants
Vs.
Anita through Manjeet Singh
...Respondents
CORAM:- HON'BLE MR. JUSTICE TEJINDER SINGH DHINDSA.
Present: Ms. K.K. Kahlon, Advocate for the appellant.
***
Tejinder Singh Dhindsa, J.
CM No.2896-C of 2012:
This is an application under Section 149 CPC for making good the deficiency of Court fee.
Learned counsel for the appellant submits that she had made good the deficiency of Court fee.
Application is allowed.
CM No.2897-C of 2012:
This is an application seeking condonation of 35 days delay in refiling the instant second appeal.
For the reasons stated in the application, the application is allowed. Delay of 35 days in refiling the appeal is condoned.
CM disposed of.
RSA No.1079 of 2012:
The Haryana Urban Development Authority is in second appeal RSA No.1079 of 2012 (O&M) -2- against the judgments and decrees passed by the Courts below, whereby, the suit for declaration and consequential relief of permanent injunction filed by the plaintiff/respondent had been decreed.
The plaintiff filed a suit for declaration that she be declared the lawful owner/allottee of booth No.B-228 Sector 21-C, Faridabad and that the impugned order dated 17.04.2001 of resumption as also the subsequent notice dated 31.05.2001 issued by the HUDA be set aside being illegal, null and void. It was further prayed that the defendants/Authorities be directed to accept balance payment along with interest at the rate of 10% per annum and a prayer for consequential relief of permanent injunction was also raised to restrain the defendants from dispossessing her from the booth in question. It was pleaded that the plaintiff had been allotted the booth in question for a price of Rs.10,50,000/- out of which Rs.1,05,000/- was deposited on 15.11.1996 at the time of auction and thereafter, a sum of Rs.1,57,500/- had been paid on 18.12.1996. It was pleaded that as per terms and conditions of allotment, the plaintiff had to deposit the remaining amount in lump sum without interest within 60 days or in 10 half yearly installments along with interest at the rate of 10% per annum. The possession of the booth in question had been offered on 23.12.1996. Plaintiff pleaded that she had always been ready and willing to pay the balance amount in installments and had been making repeated requests to the HUDA authorities to accept the amount along with interest at the rate of 10% per annum but a demand of interest at the rate of 18% per annum had been raised. The resumption order of the booth in question had been passed on 17.04.2001, which was stated to be illegal as no opportunity prior to passing of the same had been given to her. Plaintiff pleaded that there was no delay on her part and as RSA No.1079 of 2012 (O&M) -3- such the suit had been instituted.
The defendants contested the suit in terms of filing of the written statement admitting the booth in question having been allotted to the plaintiff in an open auction held on 21.11.1996 for a total consideration of Rs. 10,50,000/-. It was stated that the balance amount could have been paid in 10 half yearly installments along with 15% interest and in case of delayed payment 18% interest was chargeable. Defendants stated that in spite of possession having been offered vide letter dated 27.12.1996 and in spite of show cause notice having been served upon the plaintiff for deposit of the outstanding amount as also for personal appearance, the booth in question had been resumed vide order dated 17.04.2001. The objection regarding maintainability of the suit and the jurisdiction of the civil Court to adjudicate upon the controversy was also raised.
The trial Court struck the following issues upon the pleadings of the parties:
1. Whether the impugned resumption order dated 17.04.2001 and subsequent notice under section 18 dated 03.05.2001 are illegal, null and void because defendants have wrongly assessed amount on rate of interest 18% instead of 10% agreed between the parties? OPP.
2. Whether the suit is not maintainable in the present form?
OPD.
3. Whether the defendants had duly served a notice under Section 17 and 18 of HUDA Act upon the plaintiff? OPD.
4. Relief.
The trial Court decreed the suit of the plaintiff in her favour, RSA No.1079 of 2012 (O&M) -4- thereby setting aside the resumption order dated 17.04.2001 in respect of booth No. B-228 Sector 21-C, Faridabad and further held the notices issued by HUDA under Section 18 of the HUDA Act to be illegal, null and void. A Civil Appeal preferred by HUDA had been dismissed vide judgment dated 05.09.2011 passed by the Additional District Judge, Faridabad thereby, affirming the findings returned by the trial Court. Resultantly, Haryana Urban Development Authority is in second appeal before this Court.
I have heard Ms. K.K. Kahlon, advocate for the appellant at length.
Learned counsel would argue that the findings recorded by the Courts below are erroneous in as much as impugned resumption order had been passed after having followed due process of law and upon having granted number of opportunities to the plaintiff/respondent, which she herself had not availed. Learned counsel would contend that it was the plaintiff/respondent, who was the defaulting party in as much as there had been an inordinate delay in not depositing the outstanding payment in terms of the allotment letter and as such Haryana Urban Development Authority was well within its power to charge penal interest at the rate of 18% on the outstanding amount.
Both the Courts have taken note of the schedule of installment Ex.P-2 wherein, it had been found that 18% compound interest has been charged. DW1, Daya Nand had admitted in his testimony that HUDA had charged compound interest at the rate of 18% per annum. Even Ram Kishan, PW-3, who was an employee of HUDA had stated that the assessment in respect of the schedule of installment had been made upon charging of interest at the rate of 18% per annum.
RSA No.1079 of 2012 (O&M) -5-
The trial Court has directed the Haryana Urban Development Authority to accept the balance amount due from the plaintiff/respondent along with interest at the rate of 15% per annum as also not to charge interest at the compound rate. The plaintiff has been held liable for payment of penalty chargeable at delayed payment of installment under Section 17 of the HUDA Act after calculating the same strictly in terms of the provisions of the Act as also the conditions of the allotment letter dated 21.11.1996. The first appellate Court while affirming the findings of the trial Court has held that the interest at the rate of 18% could have been charged only for the period of delay and as such, the amount towards delayed installment had to be considered separately so as to assess the period of each delayed installment and interest at the rate of 18% per annum could have been charged only qua such delayed installment. The action of Haryana Urban Development Authority in charging compound rate of interest by assessing the entire amount along with interest at the rate of 18% per annum had been held to be bad in law. Accordingly, the Haryana Urban Development Authority had been directed by the first appellate Court to assess the balance amount due from the plaintiff/respondent along with interest at the rate of 15% per annum till the date of payment and along with simple interest at the rate of 18% per annum for the period of delay.
I do not find any basis that would warrant interference in such directions given by the Courts below. The liability towards payment and interest on the delayed payments on the outstanding amount to be paid in installments would have to be necessarily in terms of the conditions enumerated in the letter of allotment. Such directions issued by the first appellate Court are strictly in terms thereof and the same do not call for any RSA No.1079 of 2012 (O&M) -6- interference.
As regards the resumption order as also the power with Haryana Urban Development Authority to penalize an allottee on account of delayed payment is concerned, there would be no dispute as regards the proposition that any administrative order passed by the State or its instrumentality, which entails civil consequences would have to conform to the principles of natural justice. Even though, the assertion on the part of Haryana Urban Development Authority was to the effect that number of notices had been issued to the plaintiff/respondent and to such effect, learned counsel would make a reference to Ex.D2 to Ex.D5, Ex.D7 and Ex.D8 yet the concurrent finding of fact recorded by the Courts below is that no material had been brought on record to demonstrate the fact that such notices had ever been served upon the plaintiff/respondent. It had been noticed that even though, Daya Nand, DW-1 had stated that notices Ex.D2 to Ex.D5 had been served through registered cover but no evidence had been adduced to corroborate such plea. No postal receipt or acknowledgment had been made available on record by the Haryana Urban Development Authority. No witness had been examined by the appellant, wherein, it could have been stated that such notices had been personally served upon the plaintiff/respondent by an official of HUDA. On the contrary, DW-1, Daya Nand had suffered an admission that there was no record available to prove the issuance of notices. In the light of such findings, the order of resumption having been passed at the back of the respondent/plaintiff could not have been sustained in law and on such account, I find no perversity in the impugned judgments and decrees passed by the Courts below.
RSA No.1079 of 2012 (O&M) -7-
Learned counsel appearing for the Haryana Urban Development Authority would then contend that the jurisdiction of the civil Court was barred in terms of Section 50 of the HUDA Act and as such the suit filed by the plaintiff/respondent was not maintainable against the resumption order. Even such contention is being noticed only to be rejected. Clearly when there has been a violation of the provisions of the act itself as also a clear departure from the principles of natural justice, the civil Court would certainly have jurisdiction to adjudicate upon the matter.
For the reasons recorded above the present second appeal must fail as it does not raise any question of law much less substantial question of law.
Appeal dismissed.
March 19, 2012 (TEJINDER SINGH DHINDSA) harjeet JUDGE Note: Whether to be reported? Yes