R.S.A. No. 2039 of 2009 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 2039 of 2009 (O&M) Date of Decision : 18.5.2009 Haryana State Industrial Development Corporation Ltd. Chandigarh .......... Appellant Versus Rolax Auto Private Ltd. & another ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Dhiraj Chawla, Advocate for the appellant. **** VINOD K. SHARMA, J. (ORAL) C.M. No. 6031-C of 2009 This is an application for exemption from filing the certified copy of judgment and decree of the learned trial Court. For the reasons stated in the application, the C.M. is allowed, the applicant – appellant is exempted from filing the certified copy of judgment and decree of the learned trial Court. R.S.A. No. 2039 of 2009 & C.M. No. 6032-C of 2009 This regular second appeal is directed against the judgment and decree dated 18.2.2009, passed by the learned lower appellate Court, decreeing the suit filed by the plaintiff / respondent for declaration with consequential relief of permanent injunction. R.S.A. No. 2039 of 2009 2 The plaintiff / respondent filed a suit on the pleading, that it is a company registered under the Companies Act and is owner in possession of the factory premises existing on plot No. 303, Phase – II Udyong Vihar, Gurgaon, measuring 1000 Sq. meters and is carrying on business thereon. The plot was allotted by the defendant / appellant to M/s Anita & Company, the predecessor of the plaintiff on 21.1.1981 and its possession was delivered on 21.7.1982. The allottee got the plan sanctioned for raising construction thereon from the competent authority in the year 1983, and other steps for starting construction were also taken. The plaintiff / respondent also paid the pending amount of installments as well as enhanced amount from time to time and the defendant further allowed the predecessor-in-interest of the plaintiff / respondent to change the constitution to that of a company. The plaintiff / respondent got itself registered as small scale industry vide registration certificate dated 10.2.1998 and a supplementary agreement was entered into by appellant / defendant No.1 with plaintiff / respondent on 16.11.1988. The 8th installment was paid on 17.1.1989 when the major part of the construction stood completed at site. On 29.10.1990 without notice to the plaintiff / respondent the plot was resumed. In response to the said letter the plaintiff / respondent sent representation pointing out that 90% of the construction and civil masonry work had already been completed and other steps for setting up the industry had already been taken. It was prayed that six months further time be granted to start the production, which was allowed. The plaintiff / respondent is running the industry since the year 1990. However, R.S.A. No. 2039 of 2009 3 in the year 1999, the defendant / appellant tried to take possession of the property on the plea that on account of non-implementation of the project the plot stood resumed. A refund cheque of Rs. 34090/- (Rupees thirty four thousand and ninety only ) was sent. It was pointed out to the defendant / appellant that the industry is running. It sought personal hearing whereupon the plaintiff / respondent was informed that the plot stood resumed in the year 1990 and therefore their request could not be accepted. The suit was contested and it was pleaded, that suit was time barred and also that in view of Clause 19 of the Agreement, the appellant / defendant had right to resume the plot, in case of non-implementation of the project. It was claimed, that possession of the plaintiff / respondent after resumption was illegal and that of a trespasser. The learned trial Court dismissed the suit, however, the learned lower appellate Court reversed the judgment and decree passed by the learned trial Court by recording a finding that the suit has been filed by a duly authorized representative of the plaintiff / respondent. The learned lower appellate Court also held the plaintiff to be owner in possession of the factory premises existing on plot No. 303, Phase-II, Udyog Vihar, Gurgaon. The letter issued by the defendant / appellant was held to be illegal, null and void and not binding on the plaintiff / respondent. The issues framed on other preliminary objections were decided against the defendant / appellant as these were not pressed at the time of arguments. The suit stands decreed. The learned lower appellate Court relied upon the well established principle of law that resumption is very harsh step which could R.S.A. No. 2039 of 2009 4 not be permitted, except in the rarest of the rare cases. In the present case it was not disputed, that the factory was running on the property and the total sale consideration stood paid including enhanced amount demanded by the defendant / appellant. The learned lower appellate Court on appreciation of documentary and oral evidence found, that there was no violation of the terms and conditions of the allotment letter as the industry was under construction when order of resumption was passed without notice to plaintiff / respondent. The plea that the suit being time barred was rejected, as admittedly no action was taken from the year 1990 to 1999 though reply was sent by the plaintiff / respondent. It was held that the suit was within time from the date on which cause of action arose to the plaintiff / respondent. The learned counsel for the appellant contends that the judgment and decree passed by the learned lower appellate Court cannot be sustained as the terms of the allotment letter were violated by the plaintiff / respondent in not setting up the industry in time. It was claimed that absolute right vested in the defendant / appellant to resumé the plot under allotment letter. This contention cannot be accepted. As already observed above, it is settled law that resumption is very harsh act, which can be taken only in rarest of rare cases that too after giving opportunity of hearing to the allottee. In the present case the plot was resumed without issuing notice to the plaintiff / respondent. Furthermore no amount was refunded at the R.S.A. No. 2039 of 2009 5 time of resumption. It had only in the year 1999 that some amount was refunded. In view of this the substantial questions of law raised i.e. (i) whether the suit was time barred ? (ii) whether the Civil Court could interfere in the exercise of right under the agreement to resume the plot ? deserve to be answered against the appellant. The order passed in violation of principle of natural justice was void and also for want of refund of amount. The cause of action accrued only in 1999 thus the suit could not be said to be time barred. The substantial questions of law are answered against the appellant. Finding no merit, the appeal is ordered to be dismissed in limine. 18.5.2009 ( VINOD K. SHARMA ) 'sp' JUDGE