RSA No.1265 of 2010(O & M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1265 of 2010(O & M) Date of Decision:05.07.2010 Balwan Singh .... appellant Versus The Chairman/Administrator of Market Committee, Panipat & Ors. .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG 1.Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgement should be reported in the Digest? Present: Mr.S.S.Malik, Advocate for the appellant **** RAKESH KUMAR GARG J. This is plaintiff's second appeal challenging the judgement and decrees of the courts below whereby his suit for declaration and permanent injunction was dismissed. As per the averments made in the suit, plaintiff purchased plot No.241 in auction held on 18.11.1990 and deposited 25% of the sale consideration on the same day. The plaintiff failed to make the payment of balance amount. Respondent No.1 issued impugned notice dated 23.02.2001 to the plaintiff-appellant directing him to deposit a sum of Rs.4,81,573/- within 30 days failing which the plot in question was to be resumed. It is the case of the appellant that he wrote to the respondents to withdraw the aforesaid notice being against law and principles of RSA No.1265 of 2010(O & M) 2 natural justice. However, on their refusal, the need for filing the suit to declare the aforesaid notice illegal, null and void and to restrain the respondents from resuming the suit property, arose. Upon notice, respondents No.1 and 2 appeared and filed written statement raising various preliminary objections. On merits, it was submitted that the appellant failed to make the balance payment despite other notices issued to him. Not only this, appellant also filed an appeal before the Chief Administrator against the notice dated 23.02.2001, which was dismissed and therefore the present suit was not maintainable. It was further submitted that the plaintiff failed to make the payment as per the schedule and the said date expired on 01.02.1994. Vide impugned notice, he was granted an opportunity to deposit the remaining amount in 30 days failing which the plot in question was to be resumed as per condition No.20 of the allotment letter. Since the appellant failed to deposit the aforesaid amount and his appeal has already been dismissed, the suit does not lie and deserves to the dismissed. Appellant filed replication controverting the averments contained in the written statement and reiterating the facts mentioned in the plaint. The trial Court, after considering the evidence on record and hearing the arguments of counsel for the parties, dismissed the suit vide judgement and decree dated 08.05.2009. While dismissing the suit, the trial Court observed as under: “The plaintiff in an auction purchased the suit property. The terms and conditions of which are mentioned in Ex.P-5. At condition No.20 it was mentioned that if any transferee fails to observe or comply with any of the terms and conditions mentioned above the plot will be resumed and his deposit shall be forfeited to the M.C.Panipat which may have the RSA No.1265 of 2010(O & M) 3 property resold by public auction. The allotment letter further mentioned the mode of payment in condition No.5 and the last date of payment of instalment given to the plaintiff was 01.02.1994. The plaintiff has admitted in his cross-examination that he only paid two instalments in time which shows that the other instalments as deposed by the defendants were not made on time by the plaintiff. Plaintiff despite this was given the opportunity to make the payment in 30 days but plaintiff failed to do so and notices Ex.D1 to Ex.D8 were issued to the plaintiff. Plaintiff went in appeal for exemption of interest and penalty on the pending instalments but the appeal was dismissed by the Chief Administrator vide order Ex.D9. The Chief Administrator has passed a detailed order that there was no provision to exempt the interest and penal interest due to breach of condition No.5 wilfully by the plaintiff. The plaintiff as such having violated the terms and conditions was not entitled to the relief sought by him and the notice issued was as such legal and binding. Accordingly, issue No.1 is decided against the plaintiff while issues No.2 and 3 are decided in favour of the defendants.” Feeling aggrieved from the aforesaid judgement and decree of trial Court, the plaintiff filed an appeal which was also dismissed by the Lower Appellate Court vide impugned judgement and decree dated 15.10.2009. While upholding the judgement of the trial Court, the Lower Appellate Court held that as per condition No.20 of the allotment letter, appellant failed to make the payment of the price of plot in question and, thus, violated the terms and conditions of the allotment letter Ex.P-5 and therefore the respondent had acquired the right to resume the suit RSA No.1265 of 2010(O & M) 4 property and in these circumstances appellant was not entitled to any relief as sought for. Still not satisfied, the appellant has approached this Court by way of present appeal. Learned counsel appearing on behalf of the appellant has vehemently argued that the impugned notice is vague and in the present case the appellant was entitled to the waiver of payment of interest on the delayed payment of instalments and moreover he has already paid double the amount of the price of the plot in question and in these circumstances, the following substantial questions of law arise in this appeal: (1)Whether the principle of “Dumnipad” i.e.the interest calculation cannot be above the principal amount is applicable in the present case? (2)Whether the mathematical calculation of interest and penal interest is necessary to be mentioned in the impugned notice? (3)Whether the appellant is entitled to the scheme of respondent wherein the waiver benefit was granted on the delayed payment of instalments to the similar situated persons? (4)Whether the appellant deserves the equity the present case? I have heard learned counsel for the appellant and perused the impugned judgement and decrees. Admittedly, appellant has failed to make the payment of the balance amount towards price of the plot in question after depositing the 25% amount at the initial stage. It is also not in dispute that as per the terms and conditions of the allotment, the plot in question was liable to be resumed for non-payment of the price as per the schedule given in the RSA No.1265 of 2010(O & M) 5 allotment letter. Learned counsel for the appellant could also not dispute that as per the terms and conditions, respondents were entitled to levy interest and penal interest etc.for the delayed payment. In fact, by accepting the allotment, appellant accepted the terms and conditions of allotment letter Ex.P-5 and a valid contract came in existence between the parties and the appellant was bound to make the payment as per terms and conditions. Thus, it cannot be argued on behalf of the appellant that the mathematical calculations on interest etc. were necessary to be mentioned in the impugned notice. In fact, vide impugned notice, an opportunity was granted to the appellant to avoid the resumption of the plot in question. Otherwise also , the entire schedule of payment and levy of interest/penal interest etc. are payable as per the terms and conditions of the allotment. It may also be noticed that there is nothing on record of this appeal on the basis of which appellant could argue that he was entitled to the waiver of interest/penal interest. It is a matter of record that at no stage, before the courts below the appellant has raised the argument on the basis of “Rule of Damdupat”. Neither the learned counsel for the appellant was able to convince this Court as to how the aforesaid rule was applicable in the present case in which as per the terms and conditions of the allotment letter the respondents were competent to claim interest and penal interest on the delayed payment. In view of the aforesaid discussion, the substantial questions of law said to be arising in this appeal as argued by the learned counsel for the appellant, do not arise at all. I find no merit in this appeal. Dismissed. CM No.3794-C of 2010 Since the appeal has been dismissed on merits, the RSA No.1265 of 2010(O & M) 6 application for condonation of delay of 62 days in filing this appeal does not survive. (RAKESH KUMAR GARG) JUDGE 05.07.2010 neenu