R. S. A. No. 2140 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 2140 of 2010 Date of Decision : July 21, 2010 Pushpa Devi .... Appellant Vs. Haryana Urban Development Authority (HUDA), Faridabad .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Arvind Singh, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : This is second appeal by plaintiff Pushpa Devi, who was partly successful in the trial court, but has been completely non-suited by the lower appellate court. S. I. S. Plot No.31, Sector 7, Faridabad was allotted to Arjun Singh – husband of plaintiff-appellant, vide allotment letter dated 23.03.1978. He died on 28.09.1993 after developing cancer. Instalments of price of the plot were not paid. Defendant-respondent HUDA, which had allotted the plot, imposed penalty of Rs.36,522/- vide order dated 05.03.1993. On appeal preferred by the plaintiff, Administrator HUDA, R. S. A. No. 2140 of 2010 2 vide order dated 10.11.1996, waived the said penalty, subject to the condition that the plaintiff should clear all the dues within 60 days from the date of offer of possession. The plaintiff could not do so on account of short period. Defendant was charging compound interest @ 18% per annum. Plaintiff deposited Rs.50,000/- on 06.02.1997 and Rs.70,000/- on 20.03.1998. However, defendant insisted on interest @ 18% per annum on delayed payment. However, the defendant could not charge interest at more than 10% per annum simple interest. Representation dated 10.05.2001 made by the plaintiff was not considered by the defendant. On the other hand, defendant issued notice dated 23.05.2001 under Section 17 (1) of HUDA Act, 1977 (in short – the Act). Plaintiff filed reply to the said notice. However, without considering plaintiff's reply, the defendant imposed penalty to the tune of Rs.1,17,730/-, vide order dated 04.09.2001. Defendant also demanded Rs.12,95,038/- from the plaintiff. Making these averments, the plaintiff sought declaration that defendant has no right to charge interest in excess of simple interest @ 10% per annum on delayed payment. Demand notice dated 04.09.2001 has also been challenged in the suit, in addition to the proceedings regarding resumption of the plot. Permanent injunction restraining the defendant to charge interest in excess of simple interest @ 10% per annum has also been sought. Mandatory injunction directing the defendant to re-calculate the same has also been sought. R. S. A. No. 2140 of 2010 3 Defendant pleaded that the plaintiff failed to deposit the due amount of instalments within stipulated period in spite of notice and therefore, penalty was rightly imposed. Moreover, in appeal preferred by plaintiff, penalty was waived, but the plaintiff failed to deposit the due amount as per appellate order. However, deposit of Rs.1,20,000/- subsequently by the plaintiff has been admitted. Plaintiff's claim regarding rate of interest has been controverted. It was pleaded that as per latest policy of the defendant, compound interest @ 18% per annum up to 31.08.2000 and simple interest at the same rate since 01.09.2000 is being charged. Interest @ 10% per annum was chargeable if the instalments had been deposited in time. Various orders/notices issued by the defendant were defended by the defendant. Learned Civil Judge (Senior Division), Faridabad, vide judgment and decree dated 17.08.009, partly decreed the plaintiff's suit declaring that notice issued under Section 17(1) and (2) of the Act is null and void and against the provisions of the Act. Demand of Rs.12,95,038/- and Rs.1,17,730/- was held to be illegal and arbitrary. Plaintiff was held liable to pay interest on the balance amount @ 18% per annum w.e.f. 14.07.2002 and @ 14% per annum on the instalments due thereafter. Defendant has been restrained from alienating the suit property to anybody else and from dispossessing the plaintiff from the suit property. Defendant was directed to re-calculate the due amount and the plaintiff was directed to R. S. A. No. 2140 of 2010 4 pay the same within three months of service of demand notice of due amount, as re-calculated. First appeal preferred by the defendant has been allowed by learned District Judge, Faridabad, vide judgment and decree dated 15.03.2010 and thereby, suit filed by the plaintiff stands dismissed. Feeling aggrieved, plaintiff has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. At the outset, it has to be noticed that jurisdiction of civil court to try the suit is barred by Section 50 of Act, as held by the lower appellate court. Learned counsel for the appellant, however, contended that civil court had jurisdiction to try the suit as order of penalty was passed contrary to the provisions of the Act. Reliance in support of this contention has been placed on two judgments of this Court namely G. M. Worsted Spinning Mills (P) Ltd. vs. Haryana Urban Development Authority reported as 1994 (1) P. L. R. 268 and The Estate Officer, HUDA, Sector 12, Faridabad vs. Smt. Pritam Kaur reported as 2009 (2) R. C. R. (Civil) 524. I have carefully considered the contentions, but the same cannot be accepted. In judgments cited by learned counsel for the appellant, resumption order was passed without issuing show cause notice and therefore, it was held that civil court had jurisdiction to try the suit. Thus, in R. S. A. No. 2140 of 2010 5 those cases, proper procedure was not followed. Principles of natural justice were violated. Mandatory provision of Section 17 (3) of the Act was breached. In the instant case, however, admittedly impugned order dated 04.09.2001, imposing penalty under Section 17 (2) of the Act, was passed after issuing show cause notice to the plaintiff under Section 17 (1) of the Act. Consequently, there has been no procedural irregularity much less illegality nor there has been violation of any statutory provision or principles of natural justice. Consequently, jurisdiction of civil court stands barred to try the instant suit in view of Section 50 of the Act, as in the suit, order passed under Section 17 (2) of the Act has been challenged. In addition to the aforesaid, earlier also, similar order dated 05.03.1993 imposing penalty on the plaintiff's husband (allottee) had been passed. In appeal, the penalty amount was waived, subject to the condition that the plaintiff had to deposit the balance due amount within 60 days, but the plaintiff failed to deposit the same. Even thereafter, the plaintiff did not deposit the due amount for eight years till 2001. Learned counsel for the appellant tried to invoke sympathy of the Court by contending that plaintiff's husband died of cancer in 1993 and therefore, she could not deposit the balance amount as she had to bring up her five minor children. However, this submission is also based on fallacy and completely devoid of substance. Allotment of the disputed site to plaintiff's husband was made on 23.03.1978. Plaintiff's husband died on R. S. A. No. 2140 of 2010 6 28.09.1993 i.e. 15½ years after the allotment of the site to him. Balance due amount was payable in instalments within five or six years after the allotment letter. Thus, plaintiff's husband survived for ten years after the period for payment of all instalments of the balance price of the site had expired. Learned counsel for the appellant contended that plaintiff's husband was suffering from cancer for 4½ years before his death. Although there is no such pleading, yet even assuming it to be so, plaintiff's husband was hale and hearty till March 1989 i.e. for 11 long years after the date of allotment letter. In other words, he had double the stipulated period at his disposal for payment of balance amount. However, the said amount was not paid. Even after death of plaintiff's husband, appellate authority, vide order dated 10.11.1996, required the plaintiff to pay the balance amount within 60 days and even waived the penalty amount. By then, three years had already elapsed since the death of plaintiff's husband. However, the plaintiff failed to pay the balance amount. The matter does not rest here. Suit was filed on 27.09.2001. Even till then, the balance amount was not paid. In fact, the balance amount has not been paid even till today, although more than 32 years have elapsed since the allotment of the site to the plaintiff's husband. Thus, even in equity, the plaintiff-appellant has no case. Learned counsel for the appellant vehemently contended that R. S. A. No. 2140 of 2010 7 the defendant could not charge penalty in addition to penal interest of 18% per annum. It was also contended that even penal interest @ 8% per annum could not be charged. Without going into this controversy, suffice to observe that the appellant has not paid even the amount which is due, according to her own version, although more than 32 years have elapsed since the allotment of the site. For the reasons recorded herein above, I find no merit in the instant second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is accordingly dismissed in limine. July 21, 2010 ( L. N. MITTAL ) monika JUDGE