Punjab-Haryana High Court
Haryana Urban Development Authority ... vs Daljit Singh And Others on 3 August, 2012
Author: L.N. Mittal
Bench: L.N. Mittal
Regular Second Appeal No. 2935 of 2010 and -1-
Cross-Objections No. 20-C of 2010
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Regular Second Appeal No. 2935 of 2010 and
Cross-Objections No. 20-C of 2010
Date of decision : August 03, 2012
Haryana Urban Development Authority and another
....Appellants
versus
Daljit Singh and others
....Respondents
Coram: Hon'ble Mr. Justice L.N. Mittal
Present : Mr. Deepak Balian, Advocate, for the appellants
Ms. Kamalpreet Kaur, Advocate for the respondents/
cross-objectors
L.N. Mittal, J. (Oral)
Defendants Haryana Urban Development Authority (HUDA) and its Estate Officer have filed this second appeal.
Facts of this case are not very much in dispute. Disputed commercial site of SCO No. 7, Sector 10, Panchkula was auctioned by defendants on terms and conditions Ex. P1. Plaintiffs being highest bidders were purchasers of the site for ` 1,21,35,000/-. They deposited 10% of the Regular Second Appeal No. 2935 of 2010 and -2- Cross-Objections No. 20-C of 2010 auction money. Allotment letter Ex. P17/Ex. D1 dated 9.11.1998 was issued in their favour. Plaintiffs also deposited 15% of the auction money within stipulated period. Balance amount was to be deposited either within 60 days without interest or with interest @ 15% per annum in 10 half yearly equal installments. However, according to the allotment letter, the balance amount was to be deposited in 8 installments instead of 10 installments. According to terms and conditions of auction, for late payment of installments, interest was to be charged @ 18% per annum whereas according to allotment letter, compound interest @ 18% was to be charged on the late payment of the installments.
Plaintiffs have challenged resumption order dated 24.7.2001 issued vide endorsement dated 29.8.2001 passed by defendant no. 2 regarding resumption of the disputed property being null and void. Plaintiffs have also alleged that defendants are entitled to charge interest @ 15% per annum only and not entitled to charge compound interest @ 18% on delayed payments.
The defendants defended the resumption order by pleading that the same was passed after issuing requisite notices under different sub sections of section 17 of the Haryana Urban Development Authority Act, 1977 (in short, the Act) and therefore, jurisdiction of civil court to challenge the resumption order is barred by section 50 of the Act. It was Regular Second Appeal No. 2935 of 2010 and -3- Cross-Objections No. 20-C of 2010 also pleaded that according to allotment letter, defendants are entitled to charge compound interest @ 18% on delayed payment of the installments. Various other pleas were also raised.
Learned Civil Judge (Junior Division), Panchkula vide judgment and decreed dated 25.9.2009 decreed the plaintiffs' suit holding that impugned resumption order is illegal and null and void and plaintiffs are liable to pay the balance amount in half yearly installments with simple interest @ 15% per annum. Consequential relief of injunction was also granted. In first appeal preferred by defendants, learned District Judge, Panchkula vide judgment and decree dated 30.4.2010 slightly modified the judgment and decree of the trial court to the extent that plaintiffs are liable to pay the balance amount in half yearly installments with simple interest @ 18% per annum. In other respects, decree of the trial court has been upheld in first appeal. Feeling aggrieved, the defendants have filed this second appeal.
Plaintiffs have filed cross-objections challenging modification in the decree of the trial court made by the lower appellate court.
I have heard learned counsel for the parties and perused the case file.
Learned counsel for the appellants contended that jurisdiction of civil court to challenge the resumption order is barred by section 50 of Regular Second Appeal No. 2935 of 2010 and -4- Cross-Objections No. 20-C of 2010 the Act. It was also contended that in terms of condition no. 7 of the allotment letter, defendants are entitled to charge compound interest @ 18% per annum for delayed period of payment.
On the contrary, counsel for respondents/plaintiffs contended that according to terms and conditions of auction Ex. P1, only simple interest @ 15% per annum can be charged by the defendants. It was also contended that service of various notices under section 17 of the Act by defendants/plaintiffs has not been proved and therefore, impugned resumption order was passed in violation of statutory provision and without affording opportunity of hearing to the plaintiffs and consequently jurisdiction of civil court is not barred, notwithstanding section 50 of the Act.
I have carefully considered the rival contentions. Sole witness of the defendants, who stated about service of various notices under section 17 of the Act on the plaintiffs, however, could not prove the said service. In cross-examination, Vijay Kumar DW1 stated that he did not know if the said notices Ex. D2 to D6 were served personally or by registered post. He, however, again stated that since the notices bear postal stamps, the same must have been issued by registered post. However, he did not have any postal receipt in the record to depict that the notices were issued by registered post nor there was any document to depict that the notices were Regular Second Appeal No. 2935 of 2010 and -5- Cross-Objections No. 20-C of 2010 served on the plaintiffs. He had no proof regarding service of the notices on the plaintiffs. Communication Ex. D3 was only a notice under section 17(2) of the Act and not an order of penalty under section 17(3) of the Act. Vide notice Ex. D3, parties were directed to appear before the competent authority but nobody appeared in response thereto as notice was not served on the plaintiffs. It is, thus, manifest from the evidence of defendants themselves that before passing impugned resumption order, requisite notices as mandated by various sub sections of section 17 of the Act are not proved to have been served on the plaintiffs. Consequently, the impugned resumption order was passed without affording opportunity of hearing to the plaintiffs and without opportunity to show cause against the proposed action. Impugned resumption order was thus passed without complying with principles of natural justice and also without complying with mandatory provisions of section 17 of the Act. Consequently, jurisdiction of civil court to challenge the resumption order is not barred in the instant case, notwithstanding section 50 of the Act regarding bar of jurisdiction of civil court.
As regards rate of interest, plea of the plaintiffs that the defendants can charge only 15% per annum interest on delayed payment is not tenable because even according to the terms and conditions of auction, Ex. P/1 relied on by the plaintiffs themselves, it has been stipulated that rate Regular Second Appeal No. 2935 of 2010 and -6- Cross-Objections No. 20-C of 2010 of interest of delayed payment of installments shall be 18% per annum. Consequently, cross-objections filed by the plaintiffs for setting aside modification made by lower appellate court in judgment of the trial court have no merit.
Contention of counsel for the appellants/defendants that they are entitled to charge compound interest @ 18% per annum in terms of condition no. 7 in the allotment letter also cannot be accepted because according to the terms and conditions of auction, only simple interest @ 18% per annum can be charged on delayed payment of installments. Consequently, unilateral condition incorporated by defendants in allotment letter regarding compound interest is not binding on the plaintiffs. Both the parties are bound by terms and conditions of the auction. Consequently, the defendants are not entitled to charge compound interest and are entitled to charge only simple interest @ 18% per annum on delayed payment of installments.
In view of the aforesaid, finding of the lower appellate court regarding rate of interest and finding of both the courts below that the resumption order is illegal and null and void, do not suffer from any infirmity much less illegality or perversity because resumption order was passed on the basis of compound interest @ 18% per annum whereas the plaintiffs are liable to pay simple interest at said rate on delayed payment of Regular Second Appeal No. 2935 of 2010 and -7- Cross-Objections No. 20-C of 2010 installments.
Resultantly, I find no merit in the second appeal as well as in cross-objections. No question of law much less substantial question of law arises for adjudication in this second appeal. Therefore, the second appeal as well as cross-objections are dismissed.
( L.N. Mittal )
August 03, 2012 Judge
'dalbir'