IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA 1. RSA No.548 of 2000 2. RSA No.227 of 2001 Judgment reserved on: 10.7.2009 Date of decision: 18. 8.2009 1.H.P. Housing and Urban Development Authority …..Appellant Versus Smt. Madhu Verma, …. Respondent. _________________________________________________________ 2. Smt. Madhu Verma ….Appellant Versus H.P. Housing & Urban Development Authority ….Respondent Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Appellant : Mr. V.D. Khidtta, Advocate, for appellant in RSA No.548 of 2000 and for respondent in RSA No.227 of 2001. For the Respondent : Mr. Ajay Kumar, Advocate, for respondent in RSA No.548 of 2000 and for appellant in RSA No.227 of 2001. Kuldip Singh, Judge. This judgment shall dispose of RSA No.548 of 2000 and RSA No.227 of 2001 as both of them have arisen from judgment, decree dated 1.7.2000 passed by the District Judge, Shimla in Civil Whether the reporters of the local papers may be allowed to see the Judgment?Yes Appeal No.106-S/13 of 1998. The facts in this judgment are given from RSA No.548 of 2000. 2. The facts in brief are that respondent had filed Civil Case No.112/1 of 1995 against appellant for recovery of Rs.92,617/-, interest at the rate of 18% per annum, permanent prohibitory injunction to the effect that respondent is not liable to pay interest amounting to Rs.74,370/- on the revised cost and restraining the appellant from claiming the same. A prayer for mandatory injunction has also been made with a direction to the appellant to execute and register lease deed in respect of Plot No.37-D in favour of respondent. 3. The Shimla Development Authority predecessor of appellant had floated 2nd self Financing Scheme for residential complex which came into force on 1.2.1986 and was available upto 28.2.1986. The respondent under the scheme had applied for allotment of a developed type ‘C’ plot, which was later on converted into type ‘D’ plot. The respondent had deposited earnest money Rs.31,250/-, in addition to it she had paid a sum of Rs.7500/- as extra charges for exercising her choice for a specific plot. 4. The draw was held on 24.4.1986, the petitioner was allotted Plot No.37 in Sector-I. She was given intimation on 5.5.1989. The Shimla Development Authority did not hand over the possession of the plot, rather demanded enhanced amount in respect of cost of the plot. The petitioner was called upon to deposit the difference of enhanced cost amounting to Rs.2,26,881/-vide letter dated 24.10.1990. She was aggrieved by the said demand of Shimla Development Authority and therefore, she preferred complaint No.14 of 1990 before the H.P. State Consumer Redressal Commission ( for short State Commission). 5. The State Commission on 6.8.1992 partly allowed the complaint and held that Shimla Development Authority was competent to increase the cost of plot. It was observed that plot should have been handed over to the respondent latest by March, 1987. The respondent was allowed interest at the rate of 18% per annum on various amounts paid by her and said interest would be liable to be adjusted against the escalated value of the said plot and excess, if any, credited towards the existing and future dues in respect of the plot in question. The claim of the petitioner for damages was rejected but a sum of Rs.10,000/- was allowed as compensation, which was to be credited in the account of the respondent maintained by the appellant. 6. On 26.9.1992 the Shimla Development Authority demanded a sum of Rs.14415/- and first time demanded interest on the revised cost amounting to Rs.37,455/-. The appellant had wrongly calculated the interest allowed to the respondent by the State Commission. The appellant issued another illegal notice dated 2.3.1993 asking the respondent to deposit a sum of Rs.1,01,881/-. The respondent filed an application dated 15.10.1992 to the State Commission for enforcing order dated 6.8.1992 of the State Commission. On 15.9.1993 State Commission upheld all the contentions of the respondent and kept open the question of charging interest on the escalated cost to be agitated before appropriate Court or Forum by the aggrieved party. It has been contended that the claim of the appellant in respect of interest on the enhanced price is illegal and untenable. The possession of the plot was handed over by the appellant to respondent on 16.11.1994. The various amounts paid by the respondent to the appellant have been mentioned in para- 12 of the plaint. The precise case of the respondent is that the appellant had received a sum of Rs.92,617/- in excess from the respondent which appellant is liable to refund to the respondent at the rate of 18% interest per annum. 7. The appellant contested the claim of the respondent and took preliminary objections of res-judicata, valuation. On merits the filing of the complaint before the Commission and its decision was not denied. It was denied that the plot was to be handed over to respondent in March, 1987. The respondent was allowed some interest and damages by State Commission on account of delay in handing over the possession of plot to the respondent. It was alleged that respondent had Hire Purchase Tenancy agreement with the appellant and had taken the possession of the plot and had agreed to abide by the terms and conditions of appellant. The respondent has no cause of action to challenge the recovery on account of interest which has been claimed as per terms of the agreement and brochure and letter of allotment issued to respondent. The price of the plot was tentative. The respondent is not entitled to any relief claimed in the suit. 8. The respondent had filed replication. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is entitled to recover the suit amount from the defendant, as claimed? OPP 2. Whether the plaintiff is entitled to the permanent prohibitory and mandatory injunction as prayed for? OPP 3. Whether the suit is barred by res-judicata as alleged> OPD 4. Whether the suit has been properly valued for the purpose of Court fees and jurisdiction as alleged? OPD 5. Whether the suit is within limitation? OPD 6. Relief. The issues No.1, 2 were answered in negative whereas issues No.3,4 were not pressed and the issue No.5 was decided in affirmative and the suit of the respondent was dismissed by Senior sub Judge, Shimla on 31.3.1998. In appeal the District Judge on 1.7.2000 has set aside the judgment, decree dated 31.3.1998 and held that respondent is not entitled to the decree for the amount of Rs.87,802/- to which she has been found entitled because the State Commission in its judgments dated 6.8.1992 and 15.9.1993 has made it clear that the amount awarded to respondent on account of interest and compensation is to be adjusted against future demands and not to be paid in cash. Therefore, District Judge instead of passing a decree for the recovery of amount of Rs.87,802/-, passed a decree of mandatory injunction directing the respondent to give adjustment of the aforesaid amount of Rs.87,802/- against future demands which the appellant may raise against the respondent. The District Judge has also passed a decree of permanent prohibitory injunction restraining the respondent from claiming interest from the appellant on the enhanced amount of the price of the plot. 9. The appellant has filed RSA No.548 of 2000 and respondent RSA No.227 of 2001 against the judgment, decree dated 1.7.2000 of the District Judge. In RSA No.548 of 2000, a prayer has been made for setting aside the impugned judgment, decree, in RSA No.227 of 2001, a prayer has been made for modifying the impugned judgment, decree by reversing the order of adjustment of decretal amount by passing a decree for money along with future interest from the date of suit till the date of payment of the same to respondent by the appellant. 10. RSA No.548 of 2000 has been admitted on the following substantial questions of law:- 1. Whether the appellant/defendant i.e. H.P. Housing Board is entitled to demand the interest on the difference between the original price of the plot and the revised/enhanced cost from the plaintiff/respondent specially when plaintiff/respondent has not deposited the revised cost as per the demand notice exhibit PW- 1/F and exhibit PW-1/H? 2. Whether the appellant/defendant is entitled to demand the interest on the difference of the revised cost from the plaintiff specially when the H.P. Housing Board has paid the interest from the back date on the enhanced award of the land? 3. Whether the respondent/ plaintiff can claim the recovery of rupees 92,617/- alongwith interest from the appellant/respondent specially when the matter has been finally decided by the Ld. State Commission and the question of issue of interest claimed by the Housing Board has been kept open? RSA No.227 of 2001 has been admitted on the following substantial questions of law:- 1. Whether the court can suo moto exercise power or jurisdiction to order adjustment of decretal amount against uncertain or unknown future claims and that too in the absence of any plea of set off or adjustment by the defendant? 2. Whether the First Appellate court should have granted pendite lite and future interest to the appellant after having found that the suit amount was due to the Appellate from the defendant? . In RSA No.227 of 2001 an application under Order 41 Rule 27 CPC being CMP No.456 of 2008 has been filed for considering subsequent event whereby the lease hold rights were converted into free hold rights with respect to plot No.37, type-D in favour of respondent and a sale deed dated 2.4.2005 has been executed and registered on 5.4.2005 by appellant in favour of respondent of the plot. 11. Heard and perused the record. The appellant has not denied that the plot of the respondent which was on lease hold basis has been converted into free hold vide letter dated 31.3.2005. The appellant has charged Rs.47,685/- from respondent for converting plot No.37 type-D, Sector-I from lease hold to free hold. The appellant has also contended that respondent has given affidavit dated 2.4.2005 that in case the High Court decides the case in favour of the appellant then respondent shall pay full amount to appellant. The fact remains the appellant has not denied the execution of sale deed of plot No.37 type-D, Sector-I in favour of respondent on 5.4.2005. The sale of the plot in favour of respondent has taken place during the pendency of the appeal and being a subsequent event and will assist this Court in deciding the appeal effectively, therefore, CMP No.456 of 2008 is allowed. The sale deed dated 5.4.2005 is taken on record. There is no dispute with respect to the execution of the sale deed between the parties. Therefore, the sale deed dated 2/5.4.2005 shall be read in evidence. The appellant has not prayed to lead evidence in rebuttal for taking on record sale deed dated 2/5.4.2005. 12. The substantial questions of law No.1 to 3 in RSA No.548 of 2000 and substantial questions of law No.1 and 2 in RSA No. 227 of 2001 are taken up together for consideration. The basic question involved in the appeals is whether H.P. Housing Board, predecessor of H.P. Housing and Urban Development Authority is entitled to demand interest on the difference between the original price and the revised price of the plot. The connected question is whether respondent is entitled to recover Rs.87,802/- from appellant on account of excess amount paid by respondent to appellant. In view of Ex.PW-1/K, order dated 15.9.1993 of State Commission, the amount of interest payable by appellant to respondent is Rs.1,44,758/-. The respondent is further entitled to interest at the rate of 18% per annum on the amount of Rs.1,25,000/- from 1.11.1993 to 15.11.1994 amounting to Rs.26,425/- as observed in para-14 of the impugned judgment by learned District Judge. The total amount of interest comes to Rs.1,71,183/- against the claim of Rs.1,68,183/- of the respondent as per para-12 of the plaint. The respondent has been awarded Rs.10,000/- compensation by the State Commission vide order dated 25.9.1993 Ex.PW-1/K. The respondent has paid Rs.32,391/- on 1.2.1994 and Rs.67,556/- on 9.11.1994 on account of further increase in the cost of the plot. The respondent is not entitled to interest on these two amounts in as much as State commission has not ordered any interest on these two amounts. The respondent has paid another amount of Rs.751/- on 16.11.1994. The total amount paid by respondent to appellant comes to Rs.4,03,881/- as against the amount of Rs.3,12,900/- price of plot as per sale deed dated 2/5.4.2005 plus Rs.3179/- on account of ground rent for the year 1994-95, total amounting to Rs. 3,16,079/-. In this way the respondent has paid Rs.87,802/- excess amount to the appellant. 13. It has been contended on behalf of the appellant that the respondent in her affidavit dated 2.4.2005 has undertaken that in case the Court decides the case in favour of the appellant then she would pay full amount to the appellant even after execution of conveyance deed of the said plot. The sale consideration has been mentioned Rs.3,12,900/- in the sale deed dated 2/5.4.2005. In the sale deed there is no reference of affidavit dated 2.4.2005 of respondent nor there is any term that respondent would pay any other amount to the appellant. On the contrary, it has been stated in the sale deed that the vendee has made full payment of all the dues in pursuance to the allotment letter and terms and conditions of Partial Self Financing Scheme. This means against dues of Rs.3,12,900 + Rs.3179 total Rs.3,16,079 the respondent has paid Rs.4,03,881/- to appellant and an excess amount of Rs.87,802/- has been paid by the respondent to the appellant. 14. The learned counsel for the appellant has submitted that the appellant is entitled to interest on the difference of original price and the enhanced price on account of delayed payments of enhanced price by respondent. This contention of learned counsel for the appellant is noticed only to be rejected. As per sale deed dated 2/5.4.2005, the appellant has received the entire sale consideration amounting to Rs.3,12,900/- from respondent. There is no term in the sale deed that sale consideration mentioned in the sale deed is subject to any change later on. 15. The possession of the plot was handed over to appellant on 16.11.1994 and the respondent has paid various amounts to appellant on or before 16.11.1994. It is not the case of the appellant that possession of the plot was delivered to respondent prior to the time when price of the plot was enhanced. The learned District Judge has rightly held that appellant is not entitled to claim interest on the difference between the original price and the enhanced price. 16. It has been established on record that respondent has paid Rs.87,802/- in excess to the appellant in her account against the price of the free hold plot amounting to Rs.3,12,900/- plus Rs.3179/- on account of ground rent, total amounting to Rs.3,16,079/- . The respondent is thus entitled to recover of Rs.87,802/- from the appellant. The learned District Judge has rightly appreciated the material on record but has erred in not granting decree of Rs.87,802/- in favour of respondent. The appellant has failed to make out any case for interference. The substantial questions of law No.1 to 3 in RSA No.548 of 2000 and substantial questions of law No.1 and 2 in RSA No.227 of 2001 are accordingly decided against the appellant and in favour of the respondent. 17. No other point was urged. 18. The result of the above discussion, RSA No.548 of 2000 is dismissed and RSA No.227 of 2001 is partly allowed, judgment, decree dated 1.7.2000 passed by learned District Judge is modified and a decree of Rs.87,802/- is passed in favour of the respondent/plaintiff and against appellant/defendant with proportionate cost. The appellant/defendant shall pay interest to respondent/plaintiff at the rate of 6% per annum on the amount of Rs.87,802/- from the date of institution of the suit till realization/payment of the decretal amount. ( Kuldip Singh ) Judge August 18, 2009 (sks)