IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RFA No. 181 of 2003 Date of Decision : May 10, 2010 H.P. Housing Board Appellant Versus Smt. Vijay Laxmi Katoch Respondent Coram: Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Mr. C. N. Singh, Advocate, for the appellant. For the respondent : Mr. Dushyant Dadwal, Advocate, for the respondent. Sanjay Karol, J. (Oral) This is the defendant’s appeal filed under Section 96 of the Code of Civil Procedure assailing the judgment and decree dated 15.3.2003 passed by the learned Addl. District Judge (II), Kangra at Dharmshala in Civil Suit No. 2/97, titled as Smt. Vijay Laxmi Katoch versus H.P. Housing Board. 2. The plaintiff (respondent herein) filed a suit praying for a decree for mandatory injunction to the effect that the defendant (appellant herein) is not entitled to claim a sum of Rs. 2,65,000/- towards the cost of the cottage allotted to her. Plaintiff also prayed for a decree of possession of the said cottage. Whether reports of Local Papers may be allowed to see the judgment? 2 3. The defendant carries on the activity of construction and allotment of residential houses in the State of Himachal Pradesh. The defendant developed a Housing Board Colony at Chilgari, Dharmshala, Distt. Kangra, H.P. Applications were invited from the public showing the tentative cost of a duplex complex to be of Rs. 4,50,000/-. Plaintiff applied for the same. Her application was processed and in terms of letter dated 7.11.1991 she was allotted cottage No. 27. The tentative cost was fixed at Rs. 4,50,000/-. Undisputedly the schedule for payments was fixed. Payments were to be made from 6.12.1991 up to 6.5.1994. Till 2.11.1993, plaintiff had paid a sum of Rs. 3,24,000/- (plus a sum of Rs. 9000/- towards choice of a specific cottage). Undisputedly possession of the cottage was to be handed over to the plaintiff by the defendant before 30.10.1993. Since the same was not done therefore plaintiff requested for the same. Instead, the defendant issued letter dated 3.3.1994 claiming a sum of Rs. 7,15,000/- as the total enhanced cost of the cottage. Plaintiff sought remedy under the provisions of the Consumer Protection Act, 1986 but her complaint was not entertained for want of jurisdiction. Hence she filed the instant suit. 4. The defendant resisted the suit inter alia on the ground that the initial cost being tentative in nature was subject to revision. All incidental charges including the cost of development of land, service charges and administrative expenses @ 15 % were required to be paid by the plaintiff. On the completion of the works total cost of construction worked out to be Rs. 6,21,454/- on which 3 administrative charges of Rs. 93,218/- @ 15% was also to be added. Thus the defendant was justified in demanding a sum of Rs. 7,15,000/- towards the cost of the cottage. 5. Based on the pleadings of the parties the Court struck the following issues:- “1. Whether the suit is not maintainable in the present form, as alleged? OPD 2. Whether the suit is barred by limitation, as alleged? OPD 3. Whether the suit is properly valued for the purposes of court fee and jurisdiction? OPP 4. Whether the defendant is entitled to the enhancement amount of costs, as claimed by the defendant? OPD 5. Whether the plaintiff has cause of action to file the suit? OPP 6. Relief.” 6. In support of its claim plaintiff examined herself as PW-1 and in rebuttal defendant examined Sh. R.K. Makkar (DW-1), Chief Executive officer-cum-Secretary, H.P. Housing Board. 7. The trial Court found that the defendant had failed to lead any documentary evidence justifying any increase in the cost of cottage. Issues No. 1, 2 and 3 were not pressed before the trial Court and issues No. 4 and 5 were answered in favour of the plaintiff. 4 8. Heard the learned counsel for the parties and also perused the record. 9. This appeal was admitted on 14.8.2003 and the possession of the cottage undisputedly was handed over to the plaintiff during the pendency of this appeal. According to the plaintiff even the decretal amount of Rs. 85,500/- stands paid to the defendant. This is evident from the letters dated 17.8.2009 and 11.6.2003 placed on record. 10. There is no dispute that initially the area to be allotted to the plaintiff was 164 sq. mts. which was increased to 189.55 sq. mts. In fact plaintiff volunteered to pay for the increased area of 28.55 sq.mts. on rates at which the cottage was originally agreed to be allotted. According to the learned Counsel for the plaintiff, the cost of this additional area stands paid to the defendant at the time when the possession was actually handed over. A sum of Rs. 47,500/- already stands deposited in terms of letter dated 17.8.2009. The defendant however has not accepted this amount. Be that as it may be the plaintiff has paid the amount in terms of the impugned judgment and decree. 11. The plaintiff has in fact paid the entire amount in terms of the allotment letter. Over and above the same, the defendant is seeking payment of an additional sum of Rs. 2,65,000/-. There is also no dispute about the same. Now the defendant has not filed any document to show its entitlement towards the same. There is only a solitary statement of DW-1. Even his statement does not 5 substantiate the basis for increase of price. There is nothing on record to show how the amount in question is determined. The demand of 15% as administrative charges does not arise out of any contractual or statutory obligation. Plaintiff cannot be penalized for any negligence or delay in the execution of the works carried out by the defendant. It cannot be disputed that as per the original schedule fixed for payment, plaintiff had already paid 70% of the amount prior to 2.11.1993, the date before which possession was to be handed over. Admittedly as on this date the project had not completed. 12. No doubt DW-1 has made reference of the agreed terms whereby plaintiff had agreed to pay the amount of escalation but however such demands have to be based on some material placed and proved on record. In the present case the defendant has miserably failed to place and prove the same. There is no evidence of the expert to prove the increase in the cost of labour, material and cost of construction. The statement of DW-1 is vague, general and unspecific. 13. Over and above the cost in the increase of the area allotted to the plaintiff the Court below has directed the plaintiff to pay a sum of Rs. 85,500/-. This was done keeping into account the increase in the price index. Defendant was not even entitled for the same. But however the plaintiff has accepted this part of the findings. Even during the course of hearing same was not assailed. In this view of the matter I am not interfering with the impugned judgment and 6 decree. No perversity or illegality could be pointed out from the record. 14. For the aforesaid reasons the present appeal without any merit is dismissed. (Sanjay Karol), Judge. May 10, 2010 (PK)