RSA No.4622 of 2004 (O&M) 1 In the High Court for the States of Punjab and Haryana at Chandigarh. Decided on 16.7.2010. Smt.Sudarshan Kumari (dead) through her LRs Ajay Kumar and others --Appellants vs. Chandigarh Housing Board,Chandigarh, through its Chairman -- Respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.Raman Mahajan,Advocate,for the appellants Mr.K.K.Gupta,Advocate,for the respondent. Rakesh Kumar Jain, J, The plaintiff is in second appeal against the judgment and decree of the Courts below whereby her suit for declaration has been dismissed. The plaintiff's case is that she had purchased House No.235-P in village Dhanas, U.T,Chandigarh, in an open auction on 20.11.1981 for a sum of Rs.1,01,000/- and had deposited Rs.10,000/- at the time of auction against receipt No.67 dated 20.11.1981. She had also deposited an amount of Rs.15,150/- on 4.12.1981. The defendant vide letter dated 4.2.1982 directed the plaintiff to deposit Rs.580/- as ground rent for the first five years RSA No.4622 of 2004 (O&M) 2 within 30 days on account of allotment of the aforesaid house on lease hold basis for 30 years. The said letter also contained that the detailed terms and conditions of the allotment were under consideration which were likely to take some time in its issuance. The plaintiff deposited the ground rent alongwith an affidavit as directed by the defendant. It is also alleged that possession of the house in dispute was handed over on 5.2.1982 against acknowledgment issued to her vide Book No.38 ,Sr.No.3782 duly signed by Development Officer of the defendant Board. The plaintiff, thus, filed a suit seeking a declaration that she is the bonafide purchaser of the house in dispute and is entitled to get the allotment letter containing the detailed terms and conditions. In the reply, the defendant had alleged that the suit is not maintainable for the non-compliance of provisions of Section 67 of the Haryana Housing Board Act, 1971 (hereafter referred to as the Act) (as extended to Chandigarh). It is alleged that as per Condition No.3 of the terms and conditions of auction given in the advertisement appearing in the Indian Express dated 7.11.1981 as also announced at the time of auction, the successful bidder shall have to pay 25% of the bid money at the fall of hammer and the balance 75% can be paid in lump sum within 30 days from the date of auction without interest or in three equated annual instalments with interest. The first such instalment was payable after one year from the date of auction. It was also alleged that the plaintiff had accepted the terms and conditions by way of her affidavit dated 29.12.1981 but since then no payment was made. The plaintiff was asked vide letter dated 4.2.1982 to furnish details of payment made by her and further advised to deposit balance amount so that formal letter could be issued to her but no reply to the RSA No.4622 of 2004 (O&M) 3 letter was received nor any payment was made. Thereafter, vide letter dated 7.1.1987, the plaintiff was again asked to intimate the details of payment made within 15 days but that letter too remained unanswered. It was,however, admitted by the defendant that a representation dated 11.1.1982 was received requesting for possession of the house in dispute. However, the said representation was not for issuance of allotment letter which was to be issued by the defendant only after receipt of balance sale consideration. It was also alleged that no legal notice dated 6.12.1984 was received by the defendant. On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether the plaintiff is a bonafide purchaser of Gowala H.No.235- P in village Dhanas U.T., Chandigarh on lease hold basis for 30 years w.e.f. 10.3.1978? 2. Whether the plaintiff is entitled to issuance of allotment letter in her favour? OPP. 3. Whether the suit is not maintainable? OPD. 4. Whether the suit is bad for non compliance of section 67 of the Haryana Housing Board Act, 1971 as extended to U.T., Chd.? OPD. 5. Relief: After appreciating the evidence available on record, the suit of the plaintiff was dismissed ,inter-alia, on three grounds that the plaintiff has not complied with the provisions of Section 67 of the Act, which provides that no person shall institute any suit against the Board or against any officer or servant of the Board or any person acting under the orders of the Board, for RSA No.4622 of 2004 (O&M) 4 anything done or purported to have been done in pursuance of this Act, without giving to the Board, Officer or servant or person concerned, two months previous notice in writing of the intended suit nor after six months from the date of the Act complained of. The plaintiff placed on record notice Ex.P-4 and the receipt of the notice which was categorically admitted by the Receipt Clerk of the defendant. It is clear from the notice that the suit was filed after the expiry of two months statutory period as required under the aforesaid Section and the same is not filed within the prescribed period of six months from the date of the act complained of because cause of action was accrued to the appellant on 25.1.1987 when letter (Ex.P3) was written by her. Therefore, notice Ex.P-4 is not a valid notice as the same was not issued in accordance with the provisions of Section 67 of the Act. Secondly, the suit has been dismissed on the ground of being barred by limitation. In this regard, learned First Appellate Court has observed that the plaintiff had sought declaration but after the expiry of the period of limitation of three years from the date when cause of action had accrued to her because in the instant case, the cause of action had accrued to her in the year 1987 whereas the suit was filed on 9.2.1999 and a fresh notice dated 30.11.1998 (Ex.P-4) neither could extend the period of limitation nor it creates fresh cause of action. Thirdly and finally, it was held “that the correspondence from her side about payment of instalments came to an end on 25.1.1987 (Ex.P3) and after having gone through this letter I find that she has mentioned about her previous correspondence with the Board with regard to the amount of instalments but has not furnished the details of the amount paid by her. The record further spells out that till 30.11.1998 no action was taken by the RSA No.4622 of 2004 (O&M) 5 appellant and thereafter notice was issued to the Housing Board and earlier also notice dated 6.12.1984 under section 80 was issued but the appellant failed to furnish the details of amount paid by her, therefore, no further action could be taken by the Housing Board. The terms of advertisement Ex.D1 further spells out that balance of 75% could be paid in lumpsum within 30 days from the date of auction without interest or in three equated annual instalments with interest determined by the Board and the first instalment was payable after one year from the date of auction and if the rate of interest was not determined even then the appellant was duty bound to pay the instalments after a lapse of one year from the date of auction and in such like circumstances when the instalment was not paid in accordance with the terms and conditions she is not entitled to issuance of allotment letter after a lapse of more than 11 years and even after issuance of notice she did not knock the door of the competent authority in this regard and even the suit was filed in the year 1999.” Assailing the findings of the Courts below, learned counsel for the plaintiff has argued that both the Courts below have held that the plaintiff is a bonafide purchaser of the house in question who was to react for the purpose of deposit of balance amount after the finalisation of the terms and conditions of the allotment, whereas in the present case, the terms and conditions of allotment have never been finalised. Therefore, there is no question of any lapse on the part of the plaintiff. Insofar as the limitation is concerned, it is submitted that the last representation was made on 30.11.1998 whereas the suit has been filed on 9.2.1999, therefore, it was within time and lastly, there is no question of any violation of Section 67 of the Act as the suit has been filed after issuing due notice. RSA No.4622 of 2004 (O&M) 6 In reply, learned counsel for the respondent has submitted that it is a case of pure finding of fact having been recorded by both the Courts below on the issue that the plaintiff has failed to make payment of the balance sale consideration of 75% within the stipulated period and as such, she had lost her right to the property. The Court has held that the suit is beyond limitation as the last letter written by the plaintiff was 25.1.1987 (Ex.P-3), therefore, limitation cannot be extended from representation dated 30.11.1998 as there is no such provision of making a representation and there is a clear violation of Section 67 of the Act on the part of the plaintiff. I have heard learned counsel for the parties and perused the record with their assistance. During the course of hearing, efforts were made to explore the possibility of some sort of compromise between the parties. The plaintiff was ready to purchase the house in question on the prevalent market rate, but the defendant had rejected the suggestion made by the plaintiff on the ground that she had already lost her right to the property. Thus, this case was heard on merits. In this case, the plaintiff had to cross three hurdles in order to have a decree in her favour. Insofar as right of the plaintiff to the property is concerned, no doubt, she had paid 25% of the sale consideration at the time of bid but she has admittedly failed to pay the remaining 75% sale consideration as stipulated in the terms of the advertisement Ex.D-1, wherein it was clearly laid down that the plaintiff shall pay 75% of the balance sale consideration in lump sum within 30 days from the bid without interest or in three equated annual instalments with interest as determined by the Board. The first of such instalment was payable after one year from the date of auction. Even if the RSA No.4622 of 2004 (O&M) 7 rate of interest was not determined by the defendant, the plaintiff was required to pay the first instalment of the principal amount after the lapse of one year from the date of auction, but she did not pay the amount of instalment and continued in possession for years together. The last letter written by the plaintiff was on 25.1.1987 enquiring about the amount but the suit has been filed in the year 1999 much after the expiry of 12 years. Thus, in my view, the reasoning adopted by the learned Courts below in respect of inaction on the part of the plaintiff in not making the payment of balance sale consideration, is perfectly in order and does not call for any interference by this Court. Insofar as the limitation part is concerned, from the correspondence on record Ex.P-1, which came to an end on 25.1.1987, it is clear that cause of action to file the suit had started in the year 1987 but the same has been filed in the year 1999, although the plaintiff had issued a notice to the Board on 6.12.1984 under Section 80 of the Code of Civil Procedure,1908 (for short,CPC). Last but not the least, there is a clear violation of provisions of Section 67 of the Act because as per notice Ex.P-4, it is clear that the suit was filed after the expiry of two month's statutory period as required under Section 67 of the Act, nor it could be said to have been filed within six months from the date of act complained of. In nutshell, learned counsel for the appellant has failed to raise any substantial question of law as envisaged under Section 100 of CPC and as such, I do not find any merit in the present appeal and the same is hereby dismissed, however, without any order as to costs. 16.7.2010 (Rakesh Kumar Jain) RR Judge RSA No.4622 of 2004 (O&M) 8