R.S.A.No. 602 of 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No. 602 of 2002 Date of Decision : 22.7.2009 Hans Raj ...Appellants Versus Bhatinda Improvement Trust, Bathinda ...Respondents CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA Present: Mr. Surinder Garg, Advocate, for the appellant. Mr. Sanjiv Pandey, Advocate, for the respondent. HEMANT GUPTA, J. (ORAL) Plaintiff No.2 is in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby their suit for declaration challenging the order of resumption dated 30.11.1995, in respect of Booth No.9, Ahata Pritam Singh Sidhu, Bathinda, was dismissed. The plaintiffs alleged to have purchased the shop-cum- booth/plot in a auction conducted on 27.10.1993. The plaintiffs paid Rs.5000/- at the spot and another sum of Rs.27,500/- immediately after the auction. The plaintiffs deposited another sum of Rs.37,834/- vide receipt dated 30.11.1994, but the balance amount was not paid. The stand of the defendants is that on 21.12.1993 a memo was issued for resumption of plot. The plaintiff was required to pay the balance amount alongwith penal interest and 20% of the restoration R.S.A.No. 602 of 2002 2 charges, but since the plaintiffs failed to make the balance payment, the allotment of the plot was cancelled. Thereafter, the plaintiffs have filed the present suit. The grievance of the plaintiffs in the present suit is that the plot has been resumed without issuing any notice and without providing an opportunity of personal hearing. To rebut these issues, the defendants produced Ex.D-1, copy of letter dated 21.12.1993 regarding allotment of the booth in dispute; Exs.D-2 and D-4, copies of the letter dated 13.3.1995 calling upon the plaintiffs to execute agreement for sale of the suit property within 7 days from the receipt of these letters; Ex.D-3, copy of letter dated 20.10.1994 calling upon the plaintiffs to deposit the instalment of Rs.34,710/- within 15 days, with penal interest and Ex.D-5, copy of the letter dated 30.11.1995, informing the plaintiffs of resumption of booth on account of failure of the plaintiffs to pay second, third and fourth instalments even after six months of the respective due dates. Even the defendants have relied upon subsequent communications calling upon the plaintiffs to make the payment alongwith restoration charges, but since the plaintiffs failed to pay the restoration charges, the plot in dispute has been rightly cancelled. The learned trial Court has dismissed the suit. The said decree has been affirmed in appeal. In appeal, it has been found that the appellants were required to deposit instalments of Rs.31,506/- on 30.5.1995, Rs.29,904/- on 30.11.1995 and Rs.28,302/- on 30.5.1996. Since, the plaintiffs have failed to make the payment of instalments and also failed to avail the opportunity of restoration of plot by paying 20% R.S.A.No. 602 of 2002 3 of total amount as restoration charges as also interest alongwith penal interest, it was found that the plot has been rightly cancelled. The first Appellate Court has taken into consideration the statement of the plaintiff as PW-1 that he is not ready to pay the resumption charges and late payments etc. for getting the plot in dispute restored. Therefore, the Courts found that the plaintiffs cannot be given benefit of his own fault. Learned counsel for the appellant has vehemently argued that in pursuance of the interim order passed by this Court on 2.12.2002, the appellant has prepared a draft of Rs.1,85,000/- and that the appellant is ready and willing to pay the entire amount as is due to the defendants. Therefore, this Court should interfere in second appeal. On 2.12.2002, this Court has recorded the statement of the appellant that the appellant is ready to deposit the entire dues and to show his bona fide, he has brought a draft of Rs.1,85,000/-. It was the said statement of the appellant which prima facie appealed to the Court to call upon the defendants to examine the matter. However, preparation of draft by the appellant and kept in his pocket, does not give rise to any equity and raises any question of law for consideration of this Court. Both the Courts have recorded a concurrent finding of fact that an opportunity of hearing was provided to the plaintiffs, but the plaintiffs were failed to pay the instalments in terms of the conditions of auction. Inasmuch as the plaintiffs-appellant has given statement that he is not ready to pay the resumption charges and late payments etc. The appellant is continuing in possession of the shopt without payment of instalments since 1994-95. Such being the position, I do not find that any substantial R.S.A.No. 602 of 2002 4 question of law arises for consideration of this Court on the basis of findings recorded by the Courts below. Dismissed. 22.7.2009 (HEMANT GUPTA) Vimal JUDGE