RSA No.76 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.76 of 2010 (O&M) Date of decision: 12.10.2010 Haryana Urban Development Authority & Anr. ......Appellant(s) Versus Smt. Nishi Gambir ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Manish Bansal, Advocate for the appellants. Mr. A.S. Gulia, Advocate for the respondent. * * * Rakesh Kumar Garg, J. CM No.10068-C of 2010 CM is allowed subject to all just exceptions. RSA No.76 of 2010 This is defendants' second appeal challenging the judgment and decrees of the Courts below whereby suit of the plaintiff-respondent was decreed to the effect that she will not be dispossessed from the demised property till a fresh demand with modified rate of interest as per the judgment of the Hon'ble Supreme Court in Roochira Ceremics v. HUDA and others 2001 PLJ (1) 109 is raised by the appellants. As per the averments made in the suit, the plaintiff-respondent purchased the suit property in an open auction on 18.4.1981. As per the terms of allotment letter, each installment was recoverable together with interest on the balance price at 10% interest. The payment of full price of the plot was made in September 1992. It is admitted by the appellants that RSA No.76 of 2010 (O&M) 2 the respondent made payment of interest as per terms and conditions of allotment letter. However, the demand notice dated 30.12.1998 was issued in which 18% compound interest on delayed payment was demanded whereas such a demand was illegal. Hence, the present suit. On issuance of notice, appellants filed written statement raising various preliminary objections regarding non-maintainability of the suit and jurisdiction of the Court. On merits, it was averred that between the date of allotment and upto 16.4.1986, all the installments became due and were to be paid. After that as per policy of HUDA w.e.f. 15.1.1987, the compound interest at the rate of 18% was to be charged on delayed payments. Hence, the suit deserved to be dismissed. Replication was also filed on behalf of the respondent controverting the averments made in the written statement. On the pleadings of the parties, the following issues were framed by the trial Court: “1. Whether the notice dated 30.12.1998 issued by Estate Officer, HUDA is illegal, null and void and not binding on the rights of the plaintiff? 2. If issue No.1 is proved, whether the plaintiff is entitled to a decree for permanent injunction on the ground mentioned in the plaint? OPP 3. Whether the suit is not maintainable? OPD 4. Whether the plaintiff has no locus standi and no cause of action to file & maintain the present suit? OPD 5. Whether the jurisdiction of the civil court is barred u/s 50 of the HUDA Act? OPD 6. Whether the plaintiff has concealed the true and material facts from this Court?OPD RSA No.76 of 2010 (O&M) 3 7. Whether the defendants are charging the interest @ 18% per annum as per condition of the allotment letter and provision of HUDA Act?OPD 8. Whether the suit is barred by principle of res judicata? OPD 9. Relief.” After considering the evidence on record and hearing learned counsel for the parties, the trial Court held that the appellants could not charge the compound interest @ 18% and decreed the suit of the plaintiff- respondent to the effect that she shall not be dispossessed from the demised property till a fresh demand is raised by the appellant for a modified rate of interest as per the judgment of Hon'ble Supreme Court of India titled as Roochira Ceremics v. HUDA and others. It is relevant to point out that despite the fact that a specific issue was framed regarding the jurisdiction of the Civil Court, no argument was raised by the appellants on issue No.5 and the same was decided against the appellants as not pressed. Feeling aggrieved from the aforesaid judgment and decree of the trial Court, the appellants filed an appeal before the Lower Appellate Court which was also dismissed vide impugned judgment and decree dated 26.8.2009. Still not satisfied, the defendants have filed the instant appeal challenging the judgment and decrees of the Courts below. Learned counsel for the appellants has vehemently contended that wherever the Court has no jurisdiction over the subject matter, the question of law can be raised on the issue of jurisdiction even if it was not raised before the Courts below. The only argument raised by the learned counsel for the RSA No.76 of 2010 (O&M) 4 appellants before this Court is that the Courts below have erred at law while holding that in view of Section 50 of the HUDA Act, the Civil Court has no jurisdiction in this case and therefore, the judgment and decrees of the Courts below being without jurisdiction are liable to be set aside. I have heard learned counsel for the appellants and perused the impugned judgment and decrees of the Courts below. The argument raised by the learned counsel for the appellants is liable to be rejected. Admittedly, on the pleadings of the parties, the issue of jurisdiction of the Civil Court was framed by the trial Court as issue No.5. No arguments were addressed by the learned counsel for the appellants on the aforesaid issue though onus to prove the aforesaid issue was upon them and accordingly, the said issue was held against the appellants as not pressed. Thus, it is crystal clear that in spite of the fact that an objection to the jurisdiction of the Civil Court was raised but the same was not pressed. This amounts to waiver of the plea of jurisdiction by the appellants. Since the appellants have waived the objection with regard to the jurisdiction of the Civil Court, the same cannot be entertained at this stage as the appellants are estopped by their conduct from raising the same before this Court. Admittedly, the dispute between the parties to the suit is only with regard to rate of interest to be charged on the delayed payment of balance installments. As according to the appellants they are entitled to charge compound interest @ 18% on delayed payments, whereas according to the plaintiff-respondent in the case of Roochira Ceremics's case (supra), it has been observed that HUDA is entitled to charge interest @ 10% and not 18%. The trial Court has decreed the suit after relying upon Roochira Ceremics's case (supra). However, no argument has been RSA No.76 of 2010 (O&M) 5 raised regarding the findings of the Courts below on merits of the case i.e. regarding the charging of interest. Thus, I find no merit in this appeal. No substantial question of law arises in this appeal. Dismissed. October 12, 2010 (RAKESH KUMAR GARG) ps JUDGE