RSA No. 3269 of 2007 1 In the High Court for the States of Punjab and Haryana at Chandigarh … RSA No. 3269 of 2007 Date of decision: October 20,2008 Gulab Singh ..Appellant. Versus Haryana Urban Development Authority, Faridabad ..Respondents Coram: Hon'ble Mr.Justice Rakesh Kumar Garg Present: Mr. Kulbhushan Sharma, Advocate for the appellant. ... Rakesh Kumar Garg,J. By way of this appeal, the plaintiff has challenged the judgment and decrees of the lower Appellate Court whereby the lower Appellate Court has accepted the appeal filed by the defendant-respondents and has set aside the judgment and decree of the trial Court while dismissing the suit filed by the plaintiff-respondent. Briefly stated the facts of the case are that the plaintiffs purchased Booth No.174, measuring 22.68 Sq.Mtrs. In Sector 8 Market Faridabad from the respondents vide allotment letter dated 9.7.1987 for a total sale consideration of Rs.75,000/-. The plaintiff deposited a sum of Rs.7,500/- vide receipt No.126 dated 30.4.1987 at the time of auction and a sum of Rs.11,250/- being 15 % of the total sale consideration was deposited on 27.8.1987 vide receipt No.86. As per the terms and conditions of the allotment letter, the balance amount of Rs.56,250/- was to be deposited by the plaintiff in lump-sum without interest within sixty days from the issue of allotment letter or in ten half-yearly equal installments with interest at the rate of 10 % per annum on the remaining amount due. It is the case of the appellant that he further deposited a sum of Rs.30,000/- vide receipt No.138475 dated 17.9.1996 and the balance amount of Rs. 26250/- only was payable to the defendants. It is further averred that no civil amenities RSA No. 3269 of 2007 2 were provided in the area. It is alleged that no notice under Section 17 of HUDA Act was issued at any time and served upon the plaintiff. Even the resumption order under section 18 dated 12.2.2001 was not served upon the plaintiff. Hence the present suit for declaration challenging the resumption order and eviction notice under Section 18 and for permanent injunction restraining the defendants from dispossessing the plaintiff. The defendants contested the suit raising preliminary objections regarding maintainability of the suit and jurisdiction of the civil court. On merits, it was pleaded that possession of the disputed booth was given by the defendants on 10.2.1995. Although an offer of possession was immediately given on deposit of 15 % of the price of the Booth in question. Other allegations were denied and it was stated that before passing the resumption orders, many notices were issued to the appellant. It was further alleged that Rs.4,49,500/- is the balance amount which is due and the resumption order is valid on account of non-deposit of this amount, hence the suit is liable to be dismissed. It is also pleaded in the written statement that a condition has been mentioned in the allotment letter that the respondent can charge 18 % interest on the delayed payment and in fact the interest is being charged as per allotment order and policy of HUDA . Both the sides led evidence and after hearing the respective counsels, the trial Court while decreeing the suit held that the defendants could not charge compound interest at the rate of 18 %. It was further held that the suit was maintainable and the civil court had the jurisdiction. Aggrieved against the aforesaid judgment and decrees of the trial Court, the defendants filed an appeal in the court of District Judge, Faridabad who vide impugned judgment and decree dated 11.4.2008 accepted the appeal and dismissed the suit filed by the plaintiff-respondent. Still not satisfied, the plaintiff had filed the instant appeal challenging the judgment and decrees of the lower Appellate Court. Shri Kulbhushan Sharma, learned counsel for the appellant has vehemently contended that resumption order under the provisions of HUDA Act can be RSA No. 3269 of 2007 3 passed only for the amount falling lawfully due, which was not the case in hand as no legally payable amount was determined under Section 17(2) of the Act before passing the resumption order. Therefore, the judgment of the lower Appellate Court is liable to be set aside. I have heard learned counsel for the appellant. However, I find no merit in the arguments raised by the learned counsel. Undisputedly, the balance amount of Rs.56,250/- was to be deposited either in lump sum without interest within 60 days from the date of allotment or in ten half yearly installments with interest at the rate of 10 % per annum. The amount was not deposited in lump sum within 60 days, therefore, it was to be paid in 10 half yearly installments. However, the plaintiff did not pay the balance amount in installments. The defendants started issuing notices from the year 1989 onwards. The plaintiff did not pay the amount and vide notice Ex.D3 a penalty of Rs.3650/- was imposed. The plaintiff did not pay the amount or the penalty. In February 1990 notice Ex.D4 was sent and the penalty was imposed and interest was added. Again no amount was paid and the plaintiff failed to respond to the notices sent in December 91 to October 92, December 93, February 94 (Ex.D4 to D9). The defendants thereafter sent notice Ex.D8 under Section 17(3) as to why the site should not be resumed. The plaintiff failed to respond to this notice. The defendants then issued notice Ex.D9 under Section 17(4) on 4.2.1994. It was mentioned that no reply thereto had been received within stipulated time and further opportunity was given that the allottee could appear in person or through an authorized representative on 16.2.1994. The plaintiff failed to respond and another notice of hearing was sent on 27.8.1996 for 9.9.1996. On the failure of the plaintiff to respond or pay the amount, an order was passed. The plot was resumed in February 2001. Copy of the resumption order was sent to the plaintiff. Even the order did not affect the plaintiff nor any amount was deposited. Show cause notice of eviction was sent in June 2001 and then in August 2001. The plaintiff failed to respond and filed the suit in December 2002. The plaintiff did not challenge the order before Administrator HUDA. RSA No. 3269 of 2007 4 From the above facts which have been established on record, it is evident that the plaintiff had failed to pay the balance sale price and a resumption order was passed. The defendants had been issuing notices since 1989 but the plaintiff failed to respond and after the initial deposit of 25 %, he had deposited Rs.30, 000/- in September 1996. Interest was not paid. The plaintiff failed to pay the outstanding amount for years. The plaintiff did not even ask for time nor offered any explanation. Defendant No.2 was left with no option but to resume the plot. I find no infirmity in the resumption order. The plaintiff had committed constant defaults. In the present case, learned counsel has placed reliance upon a judgment of the Apex Court to contend that interest for the delayed payment cannot be charged more than 10 % Per Annum. There is no dispute with regard to the law as settled by the Apex Court in this regard in various judgments. However, in the present case, the plaintiff has challenged the resumption order and subsequent eviction order which has been passed on the ground of non- payment of the balance amount. Undisputedly, the appellant has committed a default and moreover, the courts below have recorded a finding of fact that the plaintiff had no intention to pay. It has also been mentioned that from August 1989 till 1996, no payment was made despite demands in the present case. From the facts, it is crystal clear that the defendants has resorted to resumption and has exercised power of resumption only as a last resort. The resumption order has been passed after about 14 years of allotment. The plaintiff had been enjoying the property and had not deposited the installment or the penalty or interest. Even during the proceedings before the trial Court on an application for interim stay, an order was passed by the trial Court on 17.4.2003 that the plaintiff would deposit the balance amount with simple interest at the rate of 10 % on the remaining amount from the date of the installments became due but no amount was deposited and for the first time in January 2006, a draft of Rs.30000/- was sent by him which was not accepted by HUDA as they had already resumed the plot. The contention of the counsel for the appellant to the effect that no amount RSA No. 3269 of 2007 5 was determined by the HUDA is misconceived. In compliance of the interim order dated 17.4.2003, the plaintiff on his own could have calculated the amount and paid the same. Thus his conduct throughout shows that he is a willful defaulter and had no intention to pay. It has been amply proved on record that before passing the impugned order, the authorities have followed the procedure and had given ample opportunity to the appellant to pay. Thus the resumption order passed by the defendant No.2 and is in accordance with law. There is no illegality or infirmity in the impugned judgment of the lower Appellate Court. No substantial question of law arises in this appeal. No merit. Dismissed. October 20, 2008 (RAKESH KUMAR GARG) nk JUDGE